PUTRAJAYA: The decision in the government's appeal against a High Court's ruling that children born overseas to Malaysian mothers married to foreigners are entitled to automatic Malaysian citizenship was today refixed for Aug 5.
A Court of Appeal three-member panel comprising judges Datuk Seri Kamaludin Md Said, Datuk Azizah Nawawi and Datuk S. Nantha Balan will deliver their decision in open court.
Kamaludin suggested that the decision be delivered in open court instead of online as the lawyers who are on watching brief and the media may want to be present.
The judges were supposed to deliver their decision today in two appeals but these were reverted for further submissions following an additional point raised by senior federal counsel Liew Horng Bin, representing the government.
The appeals in the two cases involve the Association of Family Support & Welfare Selangor & Kuala Lumpur (Family Frontiers) and six Malaysian women who are married to foreigners, and another case involving a woman born overseas to a Malaysian mother.
In today's proceedings conducted online, Liew brought to the court's attention a recent decision of the Federal Court which he said had a direct effect on the citizenship cases.
"Following the decision in the Dhinesh Tanaphil vs Lembaga Pencegahan Jenayah (Crime Prevention Board) & others case delivered last April, it appears that Article 8(2) of the Federal Constitution cannot be amended as it forms part of the basic structure of the Federal Constitution.
"The amendment in 2001 to Article 8(2) of the Federal Constitution to prohibit gender discrimination is (therefore) impermissible," he added.
He also argued that the amendment to Article 8(2) which states that there shall be no discrimination against citizens on religion, race, descent, place of birth, or gender in any law, does not apply to Article 14(2) of the Federal Constitution, the citizenship provision.
"The word 'father' in Section 1(b) and 1(c) of the Second Schedule, Part II of the Federal Constitution should not be interpreted to connote 'mother' as the provision cannot be amended," said Liew.
High Court judge Datuk Akhtar Tahir, in his decision to allow children born overseas to Malaysian mothers married to foreigners to be entitled to citizenship by the operation of law under Article 14(2), had held that the word 'father' in Section 1(b) must be read to include the mother.
At today's proceedings, lawyer Datuk Dr Gurdial Singh Nijar, representing the mothers and Family Frontier, argued that the Dhinesh case judgment should be read as a whole and not lift portions of a passage.
He said the judgment when read as a whole, supported improvements to the Federal Constitution such as Article 8(2).
"It is the duty of the court to interpret the Federal Constitution in a harmonious way as the appeal concerns children and family," he said.
Lawyer Datuk Dr Cyrus Das, appearing for Mahisha Sulaiha Abdul Majeed, said Liew's argument was astonishing and should not be entertained by the court.
For the first case, the government, Home Ministry and National Registration Department (NRD) director-general are appealing against the High Court's decision on Sept 9 last year recognising that Malaysian mothers' overseas-born children have the automatic right to be Malaysians.
As for the second case, Mahisha Sulaiha, who was born to a Malaysian mother and Indian national father in India, is appealing against the Aug 19, 2020 High Court's dismissal of her suit which she filed seeking for a declaration that she is entitled to be a Malaysian citizen.
In their suit, among other things, the mothers want a court order for all relevant government agencies, including the NRD, Immigration Department and Malaysian embassies, to issue documents relating to citizenship (including passports and identity cards) to children born abroad to Malaysian mothers with foreign spouses. – BERNAMA