Our forsaken children

12 Nov 2020 / 17:40 H.

A TRAGIC fallout of the Covid-19 pandemic is the fate of a child born overseas to a Malaysian mother married to a foreigner. The child’s birth cannot be registered at a Malaysian consulate. As a consequence, the child cannot acquire Malaysian citizenship.

But the child of a Malaysian father married to a foreigner can do so. The child then becomes a citizen by operation of law. Automatically.

There is no clearer example of gender discrimination. This is the result of a provision tucked in a schedule to the Federal Constitution.

But what of the fundamental “equality” Article 8(2) of the Federal Constitution – which prohibits discrimination against women? “There shall be no discrimination against citizens on the ground only of gender in any law”, it stoutly declares. The word “gender” was introduced by an amendment in September 2001. But seemingly ignored in its implementation.

Consequently, the forlorn child suffers. Alienated from his siblings who are born in Malaysia of the same mother – and therefore citizens by operation of law. Unable to enjoy a plethora of rights accorded to citizens. And worse now in this age of the Covid plague, forbidden from returning home from his overseas study or work sojourn.

Why then is this stark discrimination continued? Perhaps because article 8(2) starts off with the qualifier “Except as expressly authorised by this Constitution”. And the Second Schedule to the Constitution provides for the non-recognition of the child born overseas – as described earlier.

Are these conflicting provisions reconcilable? And how?

Well, there are certain rules of interpretation of the Constitution. Rules given the imprimatur by our judiciary.

First, in interpreting the Constitution one must be guided by the principle of giving full recognition and effect to fundamental rights and freedoms, as said by Lord President Raja Azlan Shah in Dato Menteri Othman bin Baginda v Dato Ombi Syed Alwi Syed Idrus [1981]. And prohibiting discrimination is such a right. Strike one against the gender discrimination provision.

Second, guaranteed fundamental rights must be interpreted generously; unlike restrictions. In their role as guardians of constitutional rights, courts must interpret constitutional provisions conferring rights “with the fullness needed to ensure that citizens have the benefit these constitutional guarantees are intended to afford”: cited in Lee Kwon Woh v PP [2009]. Else they are rendered illusory – bereft of their fundamental rights character. Strike two against gender discrimination.

Third, article 8 is housed in the “fundamental liberties” part of the Constitution. The citizenship provision is not. Our courts give primacy to the fundamental rights provision over other provisions. “When interpreting other parts of the Constitution, the court must bear in mind all the providing provision of article 8(1)” – the “humanising and all-pervading provision”: Badan Peguam Malaysia v Kerajaan Malaysia [2008]. And by extension article 8(2) which follows. Strike three against gender discrimination.

Fourth, our courts are inclined to the organic theory in the interpretation of the Constitution. Two consequences flow from this. One, “no one provision of the Constitution is to be separated from all the others, and considered alone, but that all the provisions bearing upon a particular subject are to be brought into view and to be so interpreted as to effectuate the great purpose of the instrument”. Two, “(T)he organic method requires us to see the present social conditions and interpret the Constitution in a manner so as to resolve the present difficulties’: Nizar v Zambry [2010]. By this the Constitution is brought in line with contemporary life. When Parliament amended the Constitution, undoubtedly it made a clear statement of eliminating gender discrimination, in response to the demands of its female citizenry. This “great purpose” should be realised and effected. Strike four.

A child born in Malaysia out of wedlock follows the nationality of the mother. If the mother is a citizen, the child follows her citizenship; and becomes a citizen by operation of law. Yet if she is married to a foreign spouse and gives birth overseas, the child is not a citizen. This creates an absurd and anomalous situation. Strike five.

Finally, the provisions of the Constitution should be interpreted to accord with our international obligations: Minister of Immigration and Ethnic Affairs v Teoh [1995; High Court Australia].

Malaysia has ratified the Convention on the Rights of a Child (CRC); and the Convention on the Elimination of all Form of Discrimination against Women (CEDAW). Parliament enacted the Child Act to comply with our international obligation under CRC. And amended Article 8(2) to include “gender” to prohibit discrimination against women. It follows that our government is obliged to consider the paramount interest of the child. There is a legitimate expectation that they will do so. Failing which their decision will be bad in law, as was the outcome in Teoh’s case.

Similarly, a lady trainee teacher whose appointment was revoked on the ground of her pregnancy succeeded in establishing that this violated article 8(2) of the Constitution. The court interpreted the constitutional provision by reference to Malaysia’s obligation under CEDAW: Noorfadilla bt Ahmad Saikin v Chayed Basirum and Others [2012].

The cumulative effect of recourse to these crucial interpretative principles suggest unequivocally that the anti-discriminatory provision of the Constitution supersedes and should be implemented by the government.

Surely that much is owed our women: true legal equality, nothing less. And the rescue of the forlorn child.

Gurdial, a former law professor, now practises law. Comments:


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