IT was a devastating day for all the Malaysian mothers who sought citizenship for their children who were born outside Malaysia via the operation of law. The Court of Appeal overturned the High Court’s decision with a majority of 2-1.
As reported, judge Kamaludin Md Said ruled that the High Court had erred in the decision by equating the word “father” to also mean “mother” under part II of the second schedule of the Federal Constitution, read with article 14(1)(b) of the Constitution.
The contention was that the word “father” here must be interpreted as it is. It must retain the original meaning of what was intended by the Federal Constitution.
However, the dissenting judgment by judge S. Nantha Balan said the interpretation in a harmonious manner was correct. In which, interpreting the citizenship clause in a rigid manner would only cause conflict as to the bloodline (jus sanguinis).
Malaysia follows constitutional supremacy, as stated in the case of Ah Tian v Government of Malaysia. As such, the court cannot with its own whims and fancies interpret something that is not in the Federal Constitution.
The Federal Constitution is not subjected to the same limitations that apply to ordinary law where the intention of the drafter takes precedence.
The hallmark of constitutionalism is only to administer what is being fair and just, and its limitations begin with the basic structure doctrine.,
In interpreting the law, there are two ways – one is clear-cut provisions and a prismatic approach, which allows the court to lift the veil in the context of the provision with its proper meaning without changing or creating a new provision altogether.
The problem here again lies in the Constitution itself. Thus, the only way is to amend the Federal Constitution under part II of the second schedule, by replacing the word “father” with “parents”.
This gives rights to both mother and father in conferring their citizenship to their children.
To grant citizenship or not to grant citizenship has always been a conundrum.
However, as mentioned in the previous article, the CCH case has shown how a conundrum can be overcome, but this again is confined to a case-to-case basis.
So can this, too, be amended and passed, as how the anti-party hopping bill was approved with a more than two-thirds majority by parliament? – August 6, 2022.
* Matilda George reads The Malaysian Insight.
* This is the opinion of the writer or publication and does not necessarily represent the views of The Malaysian Insight. Article may be edited for brevity and clarity.