THE much-debated decisions of the Court of Appeal judges over whether children born overseas to Malaysian mothers and foreign fathers are entitled to automatic citizenship are now available on the eJudgement Management System of the official portal of the Office of the Chief Registrar Federal Court of Malaysia.

All three judges – two in the majority, and one in the minority – have written separate judgments.

Bernama has reported these judgments, which have been carried by the media.

The two decisions of the Federal Court last year have been referred to by all the three judges of the Court of Appeal, with differing effect.

The first is the case of CTEB & Anor v Ketua Pengarah Pendaftaran Negara, Malaysia & Ors [2021] 4 MLJ 236 decided in May 2021. The second is CCH & Anor v Pendaftar Besar Bagi Kelahiran & Kematian, Malaysia [2022] 1 MLJ 71, decided six months later in November 2021.

Both decisions, in essence, turn on the issue of constitutional interpretation. Two schools of thought emerge from the apex court.

The first is: the fundamental rule in interpreting the constitution or any written law is to give effect to the intention of the framers.

The court cannot insert or interpret new words into the constitution. The court may only call in aid other canons of construction where the provisions are imprecise, protean, and evocative or can reasonably bear more than one meaning.

It is also said that the court cannot at its own whims and fancies attempt to rewrite the clear written text of the constitution because it would only lead to absurdity.

This is the view of the majority in CTEB (4:3) (at paragraphs [38], [39], [40], [46], [47] and [48]), which the majority in the Court of Appeal felt bound to follow by the doctrine of stare decisis.

The second is: the constitution is a unique document, or sui generis, governed by interpretive principles of its own.

In the forefront of these is the principle that its provisions should be interpreted generously and liberally.

On no account should a literal construction be placed on its language, particularly upon those provisions that guarantee to individuals the protection of fundamental rights.

This view holds that in the interpretation of the constitution, the supreme law of the land must be considered as a whole, and so as to give effect, as far as possible, to all its provisions.

This is based on an established canon of constitutional interpretation that no one provision of the constitution is to be separated from all the others and considered alone, but that all the provisions bearing upon a particular subject are to be brought into view and to be so interpreted as to effectuate the great purpose of the instrument.

It is further said that an elementary rule of construction is, that if possible, effect should be given to every part and every word of a constitution and that unless there is some clear reason to the contrary, no portion of the fundamental law should be treated as superfluous.

The above is adopted by the minority in CTEB, which in turn was adopted unanimously in CCH.

Interestingly, the bench in CCH (five judges) was composed of all three judges in the minority in CTEB, including Chief Justice Tengku Maimun Tuan Mat. The other two judges were Federal Court judges Harmindar Singh and Rhodzariah Bujang.

None of the four judges in the majority in CTEB – Court of Appeal President Rohana Yusof and Federal Court judges Vernon Ong, Zabariah Yusof and Hasnah Hashim – presided over CCH.

Clearly there are two main views among the Federal Court judges, which is healthy and most welcome.

There are currently nine Federal Court judges, excluding the chief justice. It looks like an appeal from the majority decision of the Court of Appeal will have to be heard by a full bench of the Federal Court to adopt one of the two views or schools of thought.

Be that as it may, I share with Judge of Court of Appeal (JCA) Kamaludin Md Said that “the parliamentary process is a better way of resolving” the issue.

Equally, I share with JCA Azizah Nawawi’s observation that Singapore had resolved the “gender inequality” in its constitution by way of constitutional amendments in 2004 to accord recognition to the rights of the mothers of foreign-born children.

Constitutional amendments are still the way forward. – August 12, 2022.

* Hafiz Hassan reads The Malaysian Insight.

* This is the opinion of the writer or publication and does not necessarily represent the views of The Malaysian Insight. Article may be edited for brevity and clarity.