ON Aug 6, 2022, MCA called for amendments to be made to the Federal Constitution at the next Dewan Rakyat meeting to remove discriminatory practices against Malaysian mothers.

Spokesperson Chan Quin Er said “Parliament should consider tabling amendments to read that 'either parent’ or ‘either mother or father’ or ‘both mother and father’ may confer citizenship on their children born overseas ("MCA: Amend Constitution to remove discriminatory practices against women”).

How can this be done?

A look at the Constitution of the Republic of Singapore is illuminating.

The republic's Constitution provides for four types of citizenship, one which is citizenship by descent. It is citizenship by operation of law in our Federal Constitution.

Before May 15, 2004, Article 122 in the Singapore Constitution read as follows:

“122. Citizenship by descent

“(1) A person born outside Singapore after 16th September 1963 shall be a citizen of Singapore by descent if at the time of the birth his father is a citizen of Singapore, by birth or by registration:

“Provided that such person shall not be a citizen of Singapore by descent unless his birth is registered in the prescribed manner at the Registry of Citizens or at a diplomatic or consular mission of Singapore within one year of its occurrence or, with the permission of the Government, later:

"And provided further that where such person is born of a father who is a citizen of Singapore by registration at the time of the birth, he would not acquire the citizenship of that country in which he was born by reason of his birth in that country.”

Accordingly, a child was entitled to citizenship by descent only when the father was a Singaporean who was a citizen by birth or registration. It did not apply when the father was a Singapore citizen by descent, or when it was the mother who was a Singaporean. Importantly, Singaporean mothers could only pass on citizenship by registration of their foreign-born children, and citizenship by registration was not conferred as a matter of right.

In short, Singaporean mothers did not stand on the same legal footing as Singaporean fathers.

The corresponding provision in Malaysia’s Federal Constitution is in the Second Schedule, Part II. Clause 1 reads as follow:

"Subject to the provisions of Part III of this Constitution, the following persons born on or after Malaysia Day are citizens by operation of law, that is to say:

“(a) every person born within the Federation of whose parents one at least is at the time of the birth either a citizen or permanently resident in the Federation;

“(b) every person born outside the Federation whose father is at the time of the birth a citizen and either was born in the Federation or is at the time of the birth in the service of the Federation or of a State.”

By the above provision, Malaysian mothers similarly can only pass on citizenship by the registration of their foreign-born children under Article 15(2) of the Federal Constitution. And citizenship by registration is not conferred as a matter of right as the word used in the provision is "may” and not "shall”.

That was why the Sept 9, 2021, decision of High Court judge Akhtar Tahir was much applauded. The learned judge ruled that children born overseas to Malaysian mothers are entitled to citizenship by operation of law. He ruled, among others, that the word "father” in Clause 1(b) above includes "mother”. He gave a "harmonious” reading of the Constitutional provisions.

But arguably, the judge had stepped into the shoes of the legislature (Parliament) by ruling that the word "father” includes "mother”. If the framers of the Constitution had intended that Clause 1(b) above to include "mother”, then it would have been worded similarly like Clause 1(a), that is:

"... every person born outside the Federation of whose parents one at least is at the time of the birth a citizen and either was born in the Federation or is at the time of the birth in the service of the Federation or of a State [emphasis added]."

But why in Clause 1(b) is it "father” instead of "of whose parents one at least”? The framers of the Constitution must have intended to exclude "mother”.

This explains why Singapore took the route of Constitutional amendments to allow Singaporean mothers to pass on citizenship by descent to their foreign-born children. This makes the grant of citizenship by descent gender neutral. Article 122(1), after the amendments which came into effect on May 15, 2004, now reads as follow:

"Subject to clauses (2) and (3), a person born outside Singapore after 16th September 1963 shall be a citizen of Singapore by descent if, at the time of his birth -

"(a) where the person is born before the date of commencement of section 7 of the Constitution of the Republic of Singapore (Amendment) Act 2004, his father is a citizen of Singapore, by birth or registration; and

“(b) where the person is born on or after the date of commencement of section 7 of the Constitution of the Republic of Singapore (Amendment) Act 2004, either his father or mother is a citizen of Singapore, by birth, registration or descent [emphasis added].”

The way forward for Malaysia, therefore, is to amend the Federal Constitution to secure citizenship for foreign-born children whose mothers are the pillars of the Malaysian Family.

In the Court of Appeal’s Aug 5, 2022, two-to-one decision that overturned the High Court’s Sept 9, 2021, decision, Court of Appeal Justice Kamaludin Said, who was in majority, said it is up to Parliament to legislate any changes to the Federal Constitution if needed to address the issue of citizenship.

"There is no judicial supremacy in our Federal Constitution. The court cannot on its own rewrite the Federal Constitution as this would lead to absurdity,” the learned appellate judge said.

So let’s all come together and urge our Malaysian Family government to draft amendments to the relevant Constitutional provisions on citizenship so Malaysian mothers will have the same right to confer citizenship on their foreign-born children as Malaysian fathers do.

And let’s have bipartisan support in Parliament for the amendments like the bipartisan support given to the anti-party hopping amendments to the Federal Constitution.

The above is my suggestion of how the amendments can be made.

HAFIZ HASSAN

Bukit Baru, Melaka

https://www.thestar.com.my/opinion/letters/2022/08/09/how-to-amend-the-malaysian-constitution-to-secure-citizenship-for-foreign-born-children