UN experts* today denounced a recent court decision in Malaysia that denied women the same rights as men to automatically confer citizenship to their children, saying affected women are less likely to leave abusive relationships and their children risk statelessness. The decision contravenes Malaysia’s obligations under international law and the need to interpret all constitutional provisions concerning citizenship, and its transference, without discrimination based on sex.
In August 2022, Malaysia’s Court of Appeal overturned a landmark 2021 High Court ruling which would have allowed Malaysian mothers married to foreign spouses the right to pass down citizenship to children born abroad. The country remains one of a handful in the world in which women cannot confer citizenship based on their nationality to their partners and children on an equal basis with men.
“We are deeply concerned that Malaysian women are not granted equal citizenship rights, which provide them with the much-needed safeguards and protection for them and for their offspring. The right to citizenship is a cornerstone for the enjoyment of other rights,” the experts said.
“Discriminatory nationality and citizenship laws embody patriarchal values that undermine women’s basic human rights and expose them and their children to harm and further discrimination. Denying Malaysian mothers the ability to pass on citizenship to their children has far-reaching negative impacts on children’s rights to education, health care and freedom of movement as well as their social lives and identities,” the experts said. “When children of Malaysian descent are banned from being part of society based on a discriminatory interpretation of the law, it does not only negatively impact them, but the community and State lose the opportunity to thrive socially, politically and economically.”
While Malaysian men have enjoyed the right to automatically pass down their citizenship to their overseas-born children, many binational families of Malaysian women have unnecessarily suffered as a result of long and arduous application processes under Article 15(2) of the Federal Constitution. These discretionary applications and registration procedures can take years, frequently ending in rejection with no reason given and many remaining unresolved.
On 9 September 2021, the High Court ruled in the case of Suriani Kempe & Ors vs Government of Malaysia & Ors that the word “father” in paragraphs 1(b) and 1(c) of Part II of Second Schedule of the Federal Constitution shall be interpreted harmoniously to include “mother” and that overseas-born children of Malaysian women are citizens by “operation of law.”
However, on 5 August 2022, the Court of Appeal ruled in favour of the Government’s appeal, declaring that the relevant provisions of the Constitution specifically refer to the “biological father” and cannot be extended to mean the “mother.”
The law has been deemed discriminatory by a number of human rights mechanisms and concerns about denial of women equal rights with respect to the transmission of citizenship was raised in the Human Rights Council. Statelessness and denial of equal access to citizenship increase risks of exploitation, including trafficking in persons, child trafficking and contemporary forms of slavery.
“We regret that the Malaysian Government is responsible for this setback instead of seizing an opportunity to make progress towards the realisation of gender equality. We call on the Government to fulfil its obligations under the Convention on the Elimination of All Forms of Discrimination against Women and the Convention on the Rights of the Child by interpreting the law to ensure there is no contradiction between Article 14(1)b and Article 8(2) of the Federal Constitution, as amended by Parliament to prohibit discrimination against citizens based on descent, place of birth or gender in any law,” the UN experts said.
UN experts have previously on Malaysia’s Government to ensure that Malaysian women can enjoy equal rights in relation to nationality and citizenship.
