NSTPP file pic
NSTPP file pic

IN her famous sentimental song Un-break My Heart, for which Toni Braxton won a Grammy Award in 1997, the lyrics include these unforgettable lines: "Un-break my heart; Undo this hurt; Un-cry these tears".

My question is: "Can we un-discriminate our citizenship law?"

Part II of the Federal Constitution (which sets out Fundamental Liberties in Articles 5 to 13) does not contain any provision relating to citizenship.

Part III (Articles 14 to 31) contains detailed provisions on the subject — Chapter 1 on acquisition of citizenship, Chapter 2 on the termination of citizensip, and Chapter 3 contains supplemental provisions.

On Aug 13 a foreign news portal (https://foreignpolicy.com) described our citizenship law as "sexist".

It published the story of Josil Murray (a Malaysian conservation consultant based in Thailand) who was pregnant with her first child last year.

She planned to return home to deliver, but was unable to do so due to the Covid-19 lockdown.

When Malaysia Airlines resumed service in July last year, she applied for permission for her British husband to enter the country, which had closed its borders. It was rejected twice.

Not wishing to be separated, she decided to stay in Thailand to deliver her baby with her husband at her side. As it happened, the child came three weeks early.

She told the news portal that because her child was born outside Malaysia, she "does not have a Malaysian citizenship".

Summing up the story, the portal said Malaysian fathers have the automatic right to confer citizenship on their children born ab-road, but not Malaysian mothers.

Our "gender inequality in passing on citizenship to children" is an unfortunate heritage from British colonial rule.

Many former colonies have changed their laws to conform to the Convention on the Elimination of All Forms of Discrimination against Women (CEDAW).

The Malaysian government ratified CEDAW in 1995 but made a reservation to a clause dealing with nationality.

Malaysian women who give birth overseas can apply for citizenship on their children's behalf before they turn 21.

Approvals are granted at the discretion of the Home Ministry, and they are apparently rare.

From 2013 to 2018, only 142 applications were approved, with 3,715 applications rejected and 4,959 still pending.

In 2019, Mashitah Abdul Halim, a teacher in Sabah, travelled to Turkey while pregnant with her fourth child to be near her Syrian husband.

She was assured by the authorities before she left that her child would be able to claim Malaysian citizenship even if born overseas, but they did not explain that the process was not automatic.

Mashitah gave birth in Turkey. As her husband could also not pass on his citizenship to their child, the newborn was "stateless". Mashitah applied for her son's citizenship in September 2019, and is still waiting for the outcome.

On Dec 18 last year, non-governmental organisation Family Frontiers and six Malaysian women filed a lawsuit seeking inter alia, a declaration that our citizenship law is discriminatory and therefore in violation of Article 8 (Equality).

They also sought a court order for all relevant government agencies, including the National Registration Department, Immigration Department and Malaysian embassies, to issue citizenship documents (including passports and identity cards) to children born abroad to Malaysian mothers with foreign spouses.

The government applied to strike out the lawsuit, but High Court judge Datuk Akhtar Tahir decided that he would hear the case.

On Sept 9, he held that the word "father" in section 1(b) of Part II of the Second Schedule to the Federal Constitution must be read to include "mothers".

The learned judge said that the courts are empowered to interpret the law to uphold the spirit of the Federal Constitution and ensure justice.

Article 14(1)(b) of the Federal Constitution (citizenship by operation of law) must be read together with Article 8(2), which prohibits discrimination based on gender.

Home Minister Datuk Seri Hamzah Zainudin said the government is appealing against the court's decision because there are presently two conflicting High Court decisions on the matter — one favouring the government and the other against it.

He also said the government is planning to amend the Federal Constitution so that all Malay-sian mothers will be able to confer citizenship on their children born abroad.

However, such an amendment will require the approval of the Conference of Rulers.

The writer was a federal counsel at the Attorney-General's Chambers and visiting professor at Universiti Teknologi Malaysia. He is now a full-time consultant, trainer and author