Balbeer Singh Khera A/L Jasbeer Singh, Universiti Utara Malaysia
In Malaysia, citizenship is more than just a legal status since it signifies belonging, security, and access to fundamental rights. However, for Malaysian mothers whose children are born overseas, this assurance has been far from guaranteed. The legal battle for equal citizenship rights has exposed significant constitutional and societal challenges, sparking a national debate on gender equality, legal reform, and Malaysia’s identity as a modern nation-state.
Under Article 14(1)(b) and Part II of the Second Schedule of the Federal Constitution, fathers who are Malaysian citizens can automatically confer citizenship to their children born overseas. However, the same right does not extend to Malaysian mothers in equivalent circumstances. Instead, these mothers are required to go through a lengthy and uncertain application process for their children’s citizenship.
For decades, Malaysian women with foreign spouses have not been able to confer citizenship on their children due to the provisions of the Federal Constitution. Mothers have had to rely on Article 15(2) of the Federal Constitution which allows those under the age of 21 to apply for Malaysian citizenship as long as one parent is Malaysian. Yet, there have been numerous and unending reports of Malaysian mothers, who have had to endure many years, some even decades, of waiting with no guarantee that their children would ever be recognised as Malaysians.
This gender-based disparity has led to legal challenges, with affected families arguing that the current laws violate Article 8 of the Constitution, which guarantees equality before the law and prohibits discrimination on the basis of gender.
In the case of Suriani Kempe & Ors v Kerajaan Malaysia & Ors [2021] 12 MLJ 558, several Malaysian mothers filed a legal challenge to the High Court, demanding equal rights to confer citizenship on their overseas-born children. In September 2021, the High Court ruled in favor of these mothers, declaring that children born abroad to Malaysian mothers must be accorded citizenship rights, just like those born to Malaysian fathers. This decision was celebrated as a victory for gender equality.
However, the government appealed the decision, arguing that constitutional amendments are necessary for such changes. In December 2022, the Court of Appeal overturned the High Court’s ruling, leaving the affected families in a legal limbo once again.
The appellate decision prompted responses from human rights groups, legal experts, and activists who urged the government to amend the Constitution to address the gender disparity. The case has also garnered international attention, given Malaysia’s commitments under the Convention on the Elimination of All Forms of Discrimination Against Women (CEDAW), which maintains its reservations towards Article 9(2) of CEDAW, which grants women “equal rights with men with respect to the nationality of their children.”
In early 2023, the government announced plans to introduce constitutional amendments to address the issue, signaling a willingness to resolve the gender disparity. However, amending the Federal Constitution requires a two-thirds majority in Parliament, which presents a significant political challenge. Additionally, debates persist over the implications of such changes for Malaysia's broader citizenship policies, particularly in managing concerns over dual citizenship, which Malaysia currently prohibits.
On 17 October 2024, Malaysia took a progressive step forward by passing the Constitution (Amendment) Bill 2024, granting children born overseas to Malaysian mothers eligibility for citizenship. The Bill passed with a two-thirds majority in the Lower House (206 out of 222 votes), marking a significant milestone in addressing gender inequality in citizenship laws.
This move allowed both fathers and mothers to confer Malaysian citizenship to their children born abroad and was widely welcomed. However, the Bill has not been without controversy. Initially tabled in March, it faced backlash from activists and lawmakers over certain regressive provisions. One such provision proposed revoking automatic citizenship for abandoned and stateless children, sparking threats of revolt from backbenchers. After extensive revisions, some contentious elements have been resolved, including the reinstatement of automatic citizenship for abandoned children.
In conclusion, Malaysia’s passage of the Constitution (Amendment) Bill 2024 marks a pivotal step forward in addressing gender inequality in citizenship laws, granting Malaysian mothers the long-awaited ability to confer citizenship to their overseas-born children. This progressive reform reflects the nation's evolving stance on gender equality and aligns with its commitments to international human rights standards. However, the journey to this milestone has been fraught with challenges, including legal battles, public outcry, and contentious debates over other regressive provisions in the Bill.
References:
Statute:
Federal Constitution of Malaysia
United Nations. Convention on the Elimination of All Forms of Discrimination Against Women (CEDAW), Article 9(2). https://www.un.org/womenwatch/daw/cedaw/text/econvention.htm#article9.
Case Law:
Suriani Kempe & Ors v Kerajaan Malaysia & Ors [2021] 12 MLJ 558
Website:
Chin, Yuen Mei. “Citizenship for Malaysian Mothers' Children Born Overseas.” Malaysian Bar Journal, February 2023. Accessed January 1, 2025. https://www.malaysianbar.org.my.
“Court of Appeal Overturns High Court Ruling on Citizenship for Children of Malaysian Mothers.” The Star Online, December 2022. Accessed January 1, 2025. https://www.thestar.com.my/news/nation/2022/12/21/court-of-appeal-overturns-high-court-ruling-on-citizenship.
Malaysia Passes Bill to Grant Citizenship to Overseas-Born Children of Malaysian Mothers.” Malay Mail, October 18, 2024. Accessed January 1, 2025. https://www.malaymail.com.
Ministry of Law Malaysia. Constitution (Amendment) Bill 2024 Highlights. Press Release, October 2024. Accessed January 1, 2025. https://www.kpwkm.gov.my.
"Malaysia: UN Experts Welcome Proposed Changes to Citizenship Law, Urge More." Office of the United Nations High Commissioner for Human Rights, December 2024. Accessed January 1, 2025. https://www.ohchr.org/en/press-releases/2024/12/malaysia-un-experts-welcome-proposed-changes-citizenship-law-urge-more.
"Malaysian Mothers Cheer Vote to Fix 'Sexist' Constitution." Context News, October 2024. Accessed January 1, 2025. https://www.context.news/socioeconomic-inclusion/malaysian-mothers-cheer-vote-to-fix-sexist-constitution.
"Who Wins, Who Loses from the Changes to Malaysia's Citizenship Laws?" BenarNews, October 22, 2024. Accessed January 1, 2025. https://www.benarnews.org/english/news/malaysian/who-wins-loses-from-the-new-changes-to-malaysia-citizenship-laws-10222024141528.html.
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