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PUTRAJAYA: Children under the age of 18 who were born overseas to a Malaysian mother can now apply for Malaysian citizenship, following a settlement reached at the country’s Federal Court on Monday (Mar 10) that concluded a four-year legal battle between an advocacy group and the federal government.
The “historic outcome” was part of a settlement achieved by the Association of Family Support and Welfare Selangor and Kuala Lumpur (Family Frontiers) and a group of Malaysian mothers who took the government to court in 2020 for denying citizenship to their overseas-born children.
In a statement on Monday, Family Frontiers said that the settlement is “particularly impactful” for existing overseas-born children of Malaysian mothers who were not covered by the recent Constitution (Amendment) Act 2024.
On Oct 17 last year, Malaysia passed a law allowing children born overseas to Malaysian mothers to be eligible for citizenship under the Constitution (Amendment) Bill 2024, which obtained a two-third majority in Parliament.
The passed law, however, was not applicable retrospectively. This left children born to a Malaysian mother prior to the passing of the new law in a state of uncertainty, Family Frontiers president Suriani Kempe said in a statement on Monday.
While Malaysian fathers can confer automatic citizenship on their children born overseas, Malaysian mothers who have a foreign husband are not able to do so. This has raised concerns as some of these mothers, who moved abroad with their spouses, often choose to return home with their families.
CNA previously reported that children without Malaysian citizenship face many obstacles when it comes to schooling, access to government health services, and even the ability to cross borders and meet their families.
A Malaysian mother must apply for her child’s citizenship, and continue to reapply if rejected.
The settlement on Monday means that a child below the age of 18 born overseas to a Malaysian mother and foreign father before the coming into effect of the Constitution (Amendment) Bill 2024 can now apply for citizenship under Article 15(2) of the Federal Constitution.
Article 15(2) of the Federal Constitution allows children under 21 with at least one Malaysian parent to be registered as citizens.
The settlement - in the form of a consent order - was endorsed by a five-member bench chaired by Chief Justice Tengku Maimun Tuan Mat at the Kuala Lumpur Federal Court, Malay Mail reported.
“This progress has brought immense hope and relief to many Malaysian parents and their children while moving Malaysia closer to achieving true equality,” Family Frontiers said in its statement on Monday.
The Malaysian government has not commented on the case.
In December 2020, the advocacy group together with six Malaysian women married to foreigners with children born outside the country had filed a constitutional challenge with the Kuala Lumpur High Court, seeking their children’s right to Malaysian citizenship.
They sought a court order for all relevant government agencies, including the National Registration Department, Immigration Department and Malaysian diplomatic missions to issue citizenship documents to children born abroad to Malaysian women married to foreigners.
On Sep 9, 2021, the Kuala Lumpur High Court ruled in their favour, declaring that Malaysian mothers have equal rights as Malaysian fathers to automatically confer citizenship on their overseas-born children.
However, in August 2022, the Court of Appeal overturned the High Court’s decision in a 2-1 ruling. The Federal Court then allowed Family Frontiers to pursue its appeal in December 2022, local media reported.
While their appeal was ongoing, the Malaysian government on Mar 25, 2024, began tabling a proposed law in Parliament, with the aim of changing the Federal Constitution’s citizenship laws to enable Malaysian mothers’ overseas-born children to automatically be granted Malaysian citizenship.
On Monday, Gurdial Singh Nijar - who is the lead lawyer representing the mothers - informed the Federal Court that the government and his clients had agreed to maintain the decision handed down by the High Court in 2021.
Speaking to the media after the court proceedings, Gurdial said that the settlement was a “great gift” for Malaysian women.
“It is a historic judgement, a conclusion to crack decades-long discrimination,” he said, as quoted by The Edge Malaysia.
According to the United Nations Refugee Agency (UNHCR), Malaysia is one out of 25 countries that prevents women from conferring citizenship rights to their children born overseas on an equal basis as men.
In their manifestos for the 15th general election in 2022, both Pakatan Harapan and Barisan Nasional - now partners in the unity government led by Prime Minister Anwar Ibrahim - pledged to amend the Federal Constitution to give mothers that same right.
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