Govt fails to stay citizenship case
No special circumstances to warrant a stay, rules court of appeal
PUTRAJAYA: The Court of Appeal has dismissed an application by the government to stay a High Court decision that ruled children born abroad to Malaysian mothers with foreign spouses can be given automatic citizenship.
Justice Kamaludin Md Said, who chaired a three-man panel, said there were no special circumstances to warrant a stay of the High Court’s order as applied for by the appellants.
“We take the view that this is not an ordinary case of stay involving chattels or monetary judgment. It involves the rights of the children and these rights have been recognised by the High Court order.
“In our view, the situation and circumstances are compelling and the respondent should not, in our view, be deprived of the fruits of the declaratory judgment of the High Court,” he said in a Zoom proceeding here yesterday.
The judge, however, noted that in the event the appellants succeed in reversing the decision of the court at the Federal Court, it would result in retraction of citizenship.
“That is the risk that the respondent is well aware of. The possibility of a retraction of the citizenship is not in itself a special circumstance and we do not see how the appeal will be rendered nugatory if the stay is not allowed,” he added.
Other judges on the bench were Justices S. Nantha Balan and See Mee Chun.
The court did not make an order as to costs. The appellants’ appeal against the High Court’s decision will be heard by the Court of Appeal on March 23 next year.
The government wanted to stay a High Court decision dated Sept 9 where it ruled that Malaysian mothers with foreign spouses could automatically pass on their citizenship to their children born outside Malaysia.
In the landmark decision by Justice Akhtar
Tahir, he ruled that Article 4(1)(b) of the Federal Constitution together with the Second Schedule, Part II, Section 1(b), pertaining to citizenship rights, must be read in harmony with Article 8(2), which prohibits discrimination on the basis of gender.
The court said the word “father” must therefore be read to include mothers, and that their children are entitled to citizenship by operation of law.
On Dec 18 last year, Association of Family Support & Welfare Selangor & Kuala Lumpur (Family Frontiers) president Suriani Kempe and six Malaysian women filed the suit, seeking six specific court orders including a declaration that Section 1(b) and Section 1(c) be read harmoniously with Article 8(2) to include Malaysian mothers as a condition for children born abroad to be given automatic Malaysian citizenship.
They named the government, Home Minister and National Registration Department (NRD) director-general as defendants.
The group is also seeking, among others, a court order for all relevant government agencies including the NRD, Immigration Department and Malaysian embassies to issue citizenship documents (including passports and identity cards) to children born abroad to Malaysian mothers with foreign spouses.
In April, the government filed a striking out application on the grounds that the lawsuit was scandalous, frivolous and vexatious and an abuse of the court process.
On May 6, Justice Akhtar dismissed the striking out application, as he said there was apparent and unjustified discrimination against the parents of a child born out of the federation.
In yesterday’s Zoom proceeding, the respondents were represented by lawyers Datuk Dr Gurdial Singh Nijar, Joshua Andran and Abraham Au while Senior Federal Counsel Liew Horng Bin appeared for the appellants.