29 MAY 2021
The Joint Action Group for Gender Equality is dismayed by the Federal Court’s denial of citizenship to a 10-year old child born to a Malaysian father. The disappointing majority verdict results in a denial of the nationality rights of children; and is a glaring disregard for Article 8 of the Federal Constitution which enshrines the right to equality and protection of all persons against discrimination.
In this particular instance, the citizenship application process began when the child was five months old and after the legal marriage of his parents. The application was rejected in 2012 and later an Originating Summons was filed by the parents against the National Registration Department, the Ministry of Home Affairs and the Malaysian government. It is clear that the ten-year long battle in court did not end just with disappointment and injustice for the child and his family, but impacts negatively on Malaysians who wish to see equality upheld.
This misinterpretation of Article 8(2) undermines the very basis upon which it was created – to prevent discrimination. Judges have the hallowed responsibility of ensuring the Federal Constitution is upheld and enforcing its provisions. Critically, the gender of the Malaysian parent should stand irrelevant as a determinant of whether they confer citizenship onto their children. A judgment made without considering this as well as based solely on a narrow interpretation of the Federal Constitution and the perceived legitimacy of the child, is dangerous and damaging to all children and families in Malaysia.
In this light, JAG wholly agrees with the dissenting judgment of Chief Justice Tengku Maimun (as well as two other judges) that under the Constitution, discrimination in the conferment of citizenship is not allowed. We also believe that the right to nationality is very closely bound to the right to life and liberty as it permeates all parts of a child’s reality including access to education, healthcare and security.
The judges in the majority decision have asked the child to apply for citizenship under Article 15(2) now that automatic citizenship has been denied. This will only prolong the uncertainty faced by the child and his family as there were 34 286 citizenship applications for children below 21 under Article 15 for the period of 2013 to early 2019 alone, as per data from the National Registration Department. The success rate for Article 15(2) for that period was only 3%.
The Malaysian government must lift its reservations to Articles 2 and 7 of the Convention of the Rights of the Child (CRC), an international treaty ratified by the Malaysian government in 1995, which directly relate to discrimination and the right to name and nationality. Its actions and decisions must unequivocally prioritise the needs of children.
We also urge parliamentarians to amend Articles 14 and 15 on citizenship, such that it is in harmony with Article 8. This will remove any doubt and ensure that both parents have equal rights to confer citizenship regardless of the status of their children, and that the rights of children remain protected. The Federal Constitution cannot continue to be compromised and fail children, women and families.