Malaysia’s appeal court has overturned a landmark decision that women should be able to pass on their citizenship to children born overseas in the same way as Malaysian men.
In a 2-1 decision, the judges sided with the government and rejected the September 2021 ruling by the High Court that Malaysian women had the same right as men to confer citizenship on their children.
The case hinges on Article 14(1)(b) of Malaysia’s constitution, which expressly gives fathers the automatic right to confer citizenship on their children born abroad, but omits any mention of mothers.
Advocacy group Family Frontiers, along with six affected mothers, challenged the constitutionality of the clause in December 2020, arguing that the judges should interpret the clause in line with the principle of gender equality.
The group’s lawyers said they would take their case to the Federal Court, Malaysia’s highest court.
The home minister has said previously that the government appealed the High Court’s decision to buy time to amend the constitution in favour of mothers, beginning with the formation of a new parliamentary committee to study the issue in December last year.
Kasthuri Patto, an opposition member of parliament, called on the government to move forward with the constitutional amendment and ensure equality for women.
“Do the right thing PM @IsmailSabri60,” she wrote in Malay on Twitter. “Call a special session of parliament and amend the Federal Constitution.”
Is 🇲🇾 govt waiting until ALL 🇲🇾 women with overseas born children DIE?
My mom & others passed away without ANY change.
Playing this sly waiting game WON’T prevent 🇲🇾 women from building families they choose. We’ll fight until this changes. FOR ALL 🇲🇾 WOMEN. We promise you that.
— Tehmina Kaoosji (@TehminaKaoosji) August 5, 2022
It appears that the only way we can put an end to the misery of mothers who give birth to children overseas is to amend the Federal Constitution.
Will the Govt/ Home Minister muster courage to do that?
— Kasthuri Patto (@PattoKasthuri) August 5, 2022
The six women who filed the case were able to secure citizenship for their overseas-born children after the lower court ruling, but the appeal court said that other applications should remain frozen until the Federal Court hands down its decision.
The home minister revealed in parliament last month that there had been 591 submissions under Article 14(1)(b) from children born overseas to Malaysian mothers between 2021 and July this year. Some were resolved but most remain outstanding.
The Malaysian government ratified the Convention on the Elimination of All Forms of Discrimination against Women (CEDAW) as well as the Convention on the Rights of the Child (CRC) in 1995, and amended its constitution in 2001 to enshrine the principle of gender equality, but it made a reservation on CEDAW on matters dealing with nationality.
The government maintains that the amendment on gender equality does not extend to nationality and that matters of citizenship are outside the jurisdiction of the courts.
Charles Santiago, another member of parliament, described the ruling as “regressive”.
“It’s not just a violation of CRC but can result in displacement, conflict and marginalisation, he wrote on Twitter. “We should be deeply ashamed of ourselves today.”
According to global rights group Equality Now, Malaysia is one of just 28 countries that still prevent women from passing their nationality to their children on an equal basis with men.