MP SPEAKS | On Aug 5, the Court of Appeal with a 2-1 majority decision overturned the High Court ruling on the transfer of citizenship of Malaysian mothers married to foreign men, whereby mothers would not be allowed to transfer citizenship to their children born overseas by operation of law.

Yet again, another round of “he says, she says”. Judge Kamaludin Md Said said that it was for the Parliament, instead of the court, to rewrite the Federal Constitution, as a parliamentary process is a better way of resolving issues involving controversial and complex questions arising out of a moral and social dilemma.

Then on Aug 21, Attorney-General Idrus Harun reiterated that the issue can be resolved by the government by amending the Federal Constitution, stating that “It has to be done by the government, not me”.

From the Attorney-General’s Chambers (AGC) and judiciary perspectives, the ball is in the executive’s court. Ironically, just as the AG was making that statement, Minister in the Prime Minister’s Department (Law and Parliament) Wan Junaidi Tuanku Jaafar said that Putrajaya must wait until the Federal Court decides on the appeal filed by affected mothers.

It is as though by operation of law, the Court of Appeal’s judgement has reaffirmed that gender discrimination prevails in our Federal Constitution, suggesting that women do not share equal privileges with men in this country when it comes to conferring citizenship to their children.

This unacceptable gender discrimination has a direct impact on the sustainable development of our nation. With affected children exposed to unequal access to education, healthcare, economic opportunities, social protection, the right to participate in the democratic society and hindered inheritance, we have effectively “outcasted” a significant proportion of potential human assets by our inaction.

Not only children but we have lost our women too. There are about 1.86 million Malaysian women are living overseas. They have cited citizenship issues as one of the main factors deterring their return to Malaysia. This figure represents 12% of Malaysia's total female population of 15.6 million.

This makes Malaysia the country with the second highest regional rate of women migrating with 57%, second only to Thailand, and above the global average of 48%.

It is unbelievable such a draconian law still exists after 65 years of Independence. We are one of 25 countries left to come up with a sustainable solution. Legal amendments were made in at least 19 countries in the past decade, all towards the common goal, which is equality for all, thus we have many case examples for law reforms to learn from.

Human rights violation

The issue of citizenship is not merely an issue of gender inequality. Sexist nationality laws lead to other human rights violations. Women and children have been reportedly trapped in abusive marriages when their or their children’s citizenship is dependent on their spouse.

Such laws also make it difficult for a mother to claim child custody or gain access to her children if her marriage ends in separation or divorce.

Underaged girls are at greater risk of forced marriages as families may view this as a way to gain legal status. Such laws separate families and impose restrictions on freedom of movement, which has been repeatedly reported, especially during Covid-19 travel restrictions.

To have a full picture of the issue on hand, let’s trace back the origin of that particular legal norm. Historically, many countries adopted the patriarchal position that a woman’s legal status is acquired through her relationship with a man 一 first her father and then her husband.

Such rationale for the principle of dependent nationality stems from two assumptions: first, that all members of a family should have the same nationality and secondly, that important decisions affecting the family would be made by the husband.

These assumptions were linked to the idea of citizenship, which relates to a person’s public identity and the relationship between an individual and the State.

In many countries, the assumption that a married woman’s primary location is in the private sphere, within the home, and under the protection of her husband has prevailed. Thus, her need for a separate public identity and legal relationship with the State was not taken into account.

The Malaysian women's rights movement has had many successes - from the Beijing Platform for Action pledge “to revoke any remaining laws that discriminate on the basis of sex” and the ratification of the Convention on the Elimination of All Forms of Discrimination Against Women (Cedaw) in 1995, to the insertion of “gender” under Article 8 of the Federal Constitution on equality in 2001; and most recently, the Anti-Sexual Harassment Act and Anti-Stalking Bill.

Women have equal standing with men in politics, work, family, personal freedom and opportunities. Yet, women are unable to confer citizenship rights to their children, thus leading to long-term harmful consequences and hardship for thousands of families.

The current uphill battle for equality in citizenship is another fight we must endure to achieve a universal standard of morality and humanity.

Children are innocent and Malaysia is denying their right to survival and protection against discrimination, even though we have been a signatory of the Convention on the Rights of the Child (CRC) for almost three decades.

Children affected

As we celebrate our seat in the United Nation Human rights Council a few months ago, let us honour our pledges, to give “utmost priority to women’s empowerment and gender equality, to remain fully committed to upholding its treaty obligations to the Cedaw”.

In 2018, the Committee on the Elimination of Discrimination against Women made recommendations to Malaysia that all provision of the Federal Constitution that denies women equal rights in respect to the transmission of their nationality should be amended immediately.

However, in our response to the UN report three years later, we failed to address the recommendation.

Keluarga Malaysia (Malaysian Family) starts with keluarga kita (our family). While the ball is skittishly being tossed between the executive, judiciary and legislative, children turn 18 and lose the right to be recognised as anak Malaysia (Malaysians).

The fact is, all three branches are capable of doing what is right for these children. The judiciary had exercised judicial activism in the High Court decision, as well as in the dissenting judgement in the Court of Appeal by judge Nantha Balan.

Laws cannot be static nor cast in stone. The setup of all three branches of government is exactly designed to counter such issues - to interpret and review any law that no longer serves its purpose and is harmful to the people. The fact is our law-making process must come from the government as “owners” of any constitutional amendment.

As the Chair of the Parliamentary Special Select Committee on Women and Children Affairs & Social Development, our committee is readily able and willing to file a private member’s bill for a much-needed constitutional amendment.

However, without an independent, impartial and well-supported Parliament, I am doubtful of the opportunity for a private member bill to be tabled in Parliament to see the light of day.

My fellow MPs, we reached a historical unanimous vote for a constitutional amendment to support the passing of the anti-party hopping law. If and when a bill is presented to us to make a minor amendment to the constitution to allow for both fathers and mothers to confer citizenship to their children, I trust that we can unanimously agree to do the same.

Just as party hopping is unjust and unethical, so is leaving thousands of children stateless and in limbo. Imposing and prolonging unnecessary suffering to families and children taints the spirit of Keluarga Malaysia.

As we celebrate 65 years of Independence on Aug 31, it is my fervent wish that the thousands of families and children in citizenship limbo dimerdekakan (get liberated).

AZALINA OTHMAN SAID is the Pengerang MP.

The views expressed here are those of the author/contributor and do not necessarily represent the views of Malaysiakini.