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The Court of Appeal holds that only children born overseas to Malaysian fathers who are married to foreign spouses are entitled to get citizenship by operation of law. – AFP pic, August 11, 2022.

ONLY children born overseas to Malaysian fathers who are married to foreign spouses are entitled to get citizenship by operation of law, the Court of Appeal held.

Court of Appeal judge Kamaludin Md Said, in his written grounds of judgment of last Friday’s appellate court’s 2-1 majority decision in disallowing citizenship to children born overseas to Malaysian mothers and foreign fathers, said the word “father” in section 1(b) of Part II of the Second Schedule of the Federal Constitution refers to father only and is not intended to include the mother.

This means it precluded Malaysian mothers who are married to a non-Malaysian citizen from passing on their citizenship status to their children born outside Malaysia.

In the grounds of judgment released today, Justice Kamaludin said It was intended by the framers of the Federal Constitution that citizenship by operation of the law of children born on or after Malaysia Day must follow the status of the father.

“In my view, the court should not question why the law was enacted or whether parliament had addressed its mind in enacting the law but the court’s duty is to interpret the enacted law accordingly,” he said.

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He said the remedy for Malaysian mothers who are married to foreign spouses to get Malaysian citizenship for their children who were born overseas is provided under article 15(2) of the Federal Constitution.

Justice Kamaludin said the mothers’ grievances were not against the existing law of article 15(2), which provides the remedy for them to apply for citizenship for their children but against the approving authority or the system currently in place.

“The system can be improved or changed. I agree this issue needs to be addressed by the relevant authority,” he said.

He said it was his view that the High Court was re-writing the law in relation to the grant of citizenship to children born outside Malaysia when it applied the existing law and policy already in force in a manner to find a remedy to the grievances of the mothers by interpreting the word “father” to be read as a mother.

On Friday, the Court of Appeal’s 2-1 majority decision by Justices Kamaludin and Azizah Nawawi allowed the appeal by the government, Home Ministry and National Registration Department (NRD) director-general to reverse the High Court’s decision declaring that children born overseas to Malaysian mothers who married foreigners are entitled to citizenship by operation of law.

Justice S. Nantha Balan dissented.

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