AMENDMENT TO FEDERAL CONSTITUTION REGARDING CITIZENSHIP OF CHILD BORN OVERSEAS TO MALAYSIAN MOTHERS

Cabinet agrees to constitutional change on citizenship

The amendment is expected to be tabled in the current Dewan Rakyat sitting after fulfilling legal requirements

FMT Reporters - 18 Feb 2023, 9:27am

PETALING JAYA: The Cabinet has agreed to amend the Federal Constitution to enable automatic Malaysian citizenship to children born overseas to Malaysian mothers.

The amendment is expected to be tabled in the current Dewan Rakyat sitting after fulfilling legal requirements.

This was revealed in a joint statement by home minister Saifuddin Nasution Ismail and law and institutional reform minister Azalina Othman Said.. 

As it stands, children born overseas to Malaysian women are not entitled to automatic citizenship as the Federal Constitution only provides for citizenship through fathers.

“The effect of the decision is that children born overseas before or after Malaysia Day (Sept 16, 1963) where at least one of their parents are Malaysians have the right to be citizens by operation of law according to Article 14(1) of the Federal Constitution,” they said.

Last month, Azalina said that a Cabinet memo proposing an amendment to the Federal Constitution to allow mothers to pass on their citizenship to their overseas-born children would be submitted soon.

In their statement, Saifuddin and Azalina said the proposed amendment to the Federal Constitution is to replace the word “whose father” in Part I and Part II of the Second Schedule with the words “at least one of the parents”.

“… (this will) enable Malaysian mothers to receive their just rights according to the Federal Constitution,” they said.

They said other amendments to citizenship laws will undergo a more detailed study by a committee established by the home ministry.

Other proposed amendments will be presented to the Cabinet after taking into account engagement with relevant stakeholders, the ministers said.

“This is in line with the unity government’s commitment to recognising equality for women and men, and to remove discrimination against women in Malaysia,” they said.

They added that the amendments are aimed at overcoming weaknesses in citizenship provisions and solving the high backlog of cases involving Malaysian women who have to apply for their children’s citizenship through lengthy registration processes.

They also hoped the amendments will provide a clear definition of the law and avoid providing differing definitions in the courts.

Last August, an appellate court ruled that children born overseas to Malaysian women were not entitled to automatic citizenship as the Federal Constitution only provided for citizenship through fathers.

In a 2-1 judgment in favour of the government, the appellate court ruled that children born overseas to Malaysian mothers can be denied citizenship as the word “father” in Article 14(1)(b) of the Federal Constitution and its related provisions in the Second Schedule is “clear and unambiguous” and cannot be construed to include mothers.

The ruling overturned a September 2021 decision by the Kuala Lumpur High Court that the government must grant citizenship to children born abroad to Malaysian mothers as the word “father” in the Second Schedule of the constitution must mean and include mothers.

In allowing several declaratory reliefs sought by an NGO and six mothers that certain provisions on citizenship in the constitution were discriminatory, judge Akhtar Tahir held that mothers were entitled to confer citizenship by operation of law in all processes, just like fathers.