The mother of all citizenship issues
The columnist ponders the missed chance to clarify our complex citizenship laws once before, and how mothers and their children are paying the price now.
I’VE never really thought about the lyrics of Negaraku, especially the opening line: “Negaraku, tanah tumpahnya darahku”. The literal translation into English would be, “My country, the land upon which my blood has spilled”, but there’s clearly some poetic licence to be exercised.
The English translation on Wikipedia has it as “My motherland, land of my birth”, while I’ve seen a more passionate version in “My country that I live and die for”.
It reminds me of the concept of jus soli (“the right of the soil”), or birthright citizenship, which is the idea that if you are born in a country, you are automatically a citizen of that country. This was the principle applied in the early days of Malaya and Malaysia, that if you were born here before a certain date, no matter who your parents were, you were considered a citizen.
However, after 1963, it’s more of acaseof jus sanguinis (“the right of blood”), where your nationality is determined by that of your parents. A child born now in Malaysia can be Malaysian if one of his/her parents is also Malaysian. But if you are born abroad, it seems you are only Malaysian if your father is Malaysian; your mother’s citizenship does not matter.
This is what the Court of Appeal was deciding on a few weeks ago, and the verdict, delivered in a two to one majority, was that children born overseas to a Malaysian mother and a non-malaysian father cannot automatically be a Malaysian citizen.
(A group of Malaysian women filed suit in December 2020 over their right to confer citizenship on their children who had been born abroad; after winning the case in the High Court, the government appealed and the Court of Appeal overturned the High Court’s decision on Aug 5.)
This creates a contradiction. In 2001, the Federal Constitution was amended so that laws can no longer discriminate by gender. In theory, this means you should no longer have a law that treats men and women differently.
But the laws of citizenship that were drafted long before then were not updated to reflect this new amendment.
Court of Appeal judge Datuk S. Nantha Balan said in his dissenting opinion that this was “patently a conflict”, and went so far as to say it created a situation that was “illogical, perverse and degrading to the rights and dignity of Malaysian mothers”.
It only took us 65 years as a nation to get to this point, so I suppose it’s a change within one generation.
Let’s be clear: The original intent of the Federal Constitution was that only fathers could pass on their citizenship to their children. The Reid Commission, which was responsible for drafting the first Constitution, published a report in 1957 in which it was noted that as far as British law is concerned, a child born in a foreign country is a British subject if his father was a British subject by birth.
This idea that for births on foreign soil, citizenship has to come from a father passing it to his child was also reflected in the recommendations made to the commission by the Alliance Party (the alliance of Umno, MCA and MIC which eventually became Barisan Nasional). It was also in a proposal submitted by the Malay rulers at the time.
On top of that, there are other clauses that say “parent” rather than “father”, so it’s clear that a distinction in gender is knowingly being made.
Things changed in more modern times, and for Malaysia and gender discrimination, it was in the year 2001. That is when the government proposed adding gender non-discrimination to the federal Constitution.
During a debate in Parliament then, a point was made that there are provisions on citizenship that are clearly discriminatory, and that they should be amended as well to reflect the new paradigm on equality. However, Datuk Seri Dr Rais Yatim countered by saying that the laws of citizenship are complex (“rumit” was the word used) and need further examination – and then, as far as I can tell, went silent on the issue.
(It should be noted that when Rais was later Foreign Affairs Minister in 2008, his ministry proposed that Malaysian women going abroad on their own needed to have letters from parents or employers that showed they had been given permission to travel. This was supposedly to prevent them from being used as drug mules.)
There was the opportunity there and then in 2001 to amend the Constitution to make it clear how citizenship could be passed on to a child. Either explicitly say it’s either parent, father or mother; or explicitly say that despite the provisions for non-discrimination, we’re going to discriminate in this particular case.
But neither was done, which is how we got to this point. The two judges that ruled that “father” meant just that and nothing else said so because the law is clear, as well as the original intent. The one who dissented said that gender non-discrimination was so important that if the government didn’t intend for it to apply to citizenship, they would have explicitly said so.
I feel that the latter interpretation is potentially dangerous. If we move the Constitution away from the intent of its framers, then we risk interpreting it in ways far removed from the original objective.
The best thing to do, I feel, is to redraft the entire section to remove ambiguity. Certainly, we all feel that in this day and age we shouldn’t deny children of Malaysian mothers the right of citizenship. Even Singapore amended its Constitution in 2004 to include both parents.
The thing is, if the government is happy to give citizenship to these children then there is no problem. But the reality is that some of the mothers in this case have waited up to nine years so far for their children’s citizenship. Is the government waiting until they become adults so the issue becomes moot?
One of the Court of Appeal judges, Datuk Seri Kamaludin Md Said, made this remark: “I can only say here that conferment of citizenship – although at the discretion of the government – the process must not be prolonged and must be duly considered. There must be a proper mechanism.”
For me, if a mother has expended so much in sweat and tears, all for a small blue card of recognition, then perhaps she has already shown she is worthy enough to be part of this nation’s lifeblood.
Logic is the antithesis of emotion but mathematician-turned-scriptwriter Dzof Azmi’s theory is that people need both to make sense of life’s vagaries and contradictions. Write to Dzof at lifestyle@thestar.com.my. The views expressed here are entirely the writer’s own.
For me, if a mother has expended so much in sweat and tears, all for a small blue card of recognition, then perhaps she has already shown she is worthy enough to be part of this nation’s lifeblood.