9 DECEMBER 2021
On 9 September 2021, the High Court confirmed Malaysian mothers’ equal right to automatically confer citizenship to their overseas-born children (‘the High Court decision’). Every single day it is not implemented is another day Malaysian mothers and their children are denied their fundamental human rights in their own motherland. They wonder where they fit within the framework of #KeluargaMalaysia— while some continue to face gender-based violence. Are mothers not key to keeping their families intact?
To this day, Malaysian women are putting their lives at risk by returning to Malaysia, especially during the COVID-19 pandemic. For many of them, their non-citizen children and spouses are not granted approval on their My Travel Pass to enter the country. We are living in the time of a pandemic for 2 years now, yet there seems to be no special temporary measures provided for these children who are forced to be born overseas while the Government chooses not to honour the High Court judgement.
Worse, these mothers may be placed in violent or toxic situations, unable to escape for fear of their children’s well-being. This situation has been exacerbated by the COVID-19 pandemic.
A Malaysian mother who testified at the recent Women’s Tribunal Malaysia 2021 revealed that she spent well over RM300,000 for her two non-Malaysian children’s education. Apart from that, she had to leave Malaysia every 90 days to renew their visas. “I have a son who is Malaysian, what is the difference between my overseas born children and my son?” she asked.
In another case, Tee Li Li, a single, working mother is raising a child whose citizenship is different from hers, for she had no choice but to accept her ex-husband’s citizenship upon her child at birth for fear of rendering her child stateless. During the COVID-19 pandemic, she turned down the opportunity to be repatriated free-of-charge, as her child would only be given a 30-day visa. “What will happen to her when her 30 days are up?” she asked. She and her daughter have Permanent Residence status in a third country where she works, which provides them with the stability she requires for now.
On 24 September 2021, it was announced that the Cabinet agreed that the Attorney General Tan Sri Idrus Harun (‘the AG’) would bring this issue up to the Yang di-Pertuan Agong as soon as possible, when the Home Minister stated the Government’s intention to table a constitutional amendment to allow Malaysian mothers to automatically confer citizenship on their overseas-born children. On 15 November 2021, Law Minister Wan Junaidi Tuanku Jaafar announced that the AG would be conducting the briefing at the meeting of the Conference of Rulers. While our Rulers met on 23 and 24 November 2021 and we are reaching the end of the year, the Government has yet to provide any information on the outcome of the briefing.
Aside from the long delay on the constitutional amendment front, the Government is constantly placing hurdles before our Malaysian mothers in dealing with Suriani Kempe & Ors v Government of Malaysian & Ors (‘the case’). The Government seems determined to exhaust every judicial avenue—spending taxpayers’ money—to delay the implementation of the High Court decision, even though it has declared an interpretation of the Constitution that vests equal rights on Malaysian women to confer citizenship. A constitutional amendment would not be necessary.
Since the High Court decision, the Government filed an appeal and a total of 3 stay applications (to suspend implementation of the judgment) – one at the High Court, and two at the Court of Appeal.
On 15 November 2021, the High Court judge dismissed the stay application with costs to the Plaintiffs, Family Frontiers and 6 mothers, as it was “unnecessary”. The judge reasoned that the Government should not be placing hurdles before the mothers if their intention is indeed to amend the Constitution; and that the Malaysian mothers would be prejudiced by the indefinite delay caused by a stay. “The hardships faced by the mothers are current hardships and they have waited long enough” was clearly stated by the High Court judge.
Unsatisfied, on 16 November 2021, the Government filed a stay application at the Court of Appeal and another temporary stay application at the same court the next day. The temporary stay application was heard on 6 December 2021 for which the Court of Appeal made no order. Instead, the hearing for the stay application was brought forward from 18 March 2022 to 22 December 2021.
The Government insists on maintaining the status quo, refusing to issue documents recognising citizenship to these children as ordered by the High Court, pending disposal of the appeal against the High Court decision.
Meanwhile, the Government contested for and won a seat at the United Nations Human Rights Council. In its bid, it pledged to “strengthen efforts to achieve gender equality and women’s empowerment and eliminate violence against women” without mentioning any plan to fulfil its promise to amend the Constitution to remove discriminatory citizenship provisions. The pledge and the conduct of the Government are in contradiction.
With these seemingly never-ending delays, we wonder how the Home Ministry plans to present its 100 Days in Office report card regarding its performance in boosting social well-being, strengthening unity in the Malaysian Family, and enhancing delivery, some of the six core principles set on 27 August 2021.
The Government has a clear choice: accept the High Court decision or move swiftly with a time frame to amend the Constitution so that overseas-born children of Malaysian mothers and non-Malaysian fathers can finally have their right to be Malaysian. We see no reason for this delay. The Government holds the power to change the narrative of our history, and most importantly, to improve the situation for 50% of Malaysia’s population—the women. If the Government truly sympathises with our Malaysian women with non-Malaysian children, as has been said by the Home Minister himself, then in line with #16DaysofActivism, uphold #HumanRights and end this violence against our women.
We strongly call on the Government to withdraw the appeal and uphold the High Court decision to grant Malaysian women equal rights as men to automatically confer citizenship to their overseas children, and by all means amend the Constitution as well if it wants to do so.