Article Malaysia: High Court Holds Malaysian Mothers Can Confer Citizenship on Children Born Abroad

On September 9, 2021, Malaysian news sources reported that the High Court in Kuala Lumpur had issued a decision determining that the Federal Constitution of Malaysia allows children born outside of Malaysia to Malaysian mothers and foreign fathers to be automatically conferred citizenship. The decision of the court has not yet been publicly released.

According to the news reports, Malaysia is “one of 25 countries that do not give mothers and fathers equal rights under the country’s citizenship laws. Malaysia’s constitution gives fathers the automatic right to confer citizenship to their children born abroad, but it does not mention mothers.”

The case was brought against the government by six Malaysian mothers in December 2020, with support from the Association of Family Support and Welfare Selangor & KL (known as Family Frontiers). The women had applied for citizenship for their overseas-born children, but their applications were denied by the government. They had sought six specific court orders, “including a declaration that Section 1(b) and Section 1(c) of the Second Schedule, Part II of the Federal Constitution 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 also sought an order “for all relevant government agencies, including the National Registration Department, Immigration Department and Malaysian embassies, to issue all documents relating to citizenship (including passports and identity cards) to children born abroad to Malaysian mothers with foreign spouses.”

Article 14(1)(b) of the Federal Constitution provides that “every person born on or after Malaysia Day [i.e., independence], and having any of the qualifications specified in Part II of the Second Schedule” is a citizen by operation of law. Section 1(a) to (c) of Part II of the Second Schedule read as follows:

1. Subject to the provisions of Part III of this Constitution, the following persons born on or after Malaysia Day are citizens by operation of law, that is to say:

(a) every person born within the Federation of whose parents one at least is at time of the birth either a citizen or permanently resident in the Federation; and

(b) every person born outside the Federation whose father is at the time of the birth a citizen and either was born in the Federation or is at the time of the birth in the service of the Federation or of a State;

(c) every person born outside the Federation whose father is at the time of the birth a citizen and whose birth is, within one year of its occurrence or within such longer period as the Federal Government may in any particular case allow, registered at a consulate of the Federation or, if it occurs in Brunei or in a territory prescribed for this purpose by order of the Yang diPertuan Agong, registered with the Federal Government; …

As stated above, the plaintiffs argued that these provisions should be read consistently with article 8(2) of the Constitution, which provides as follows:

Except as expressly authorized by this Constitution, there shall be no discrimination against citizens on the ground only of religion, race, descent, place of birth or gender in any law or in the appointment to any office or employment under a public authority or in the administration of any law relating to the acquisition, holding or disposition of property or the establishing or carrying on of any trade, business, profession, vocation or employment.

According to a statement from Family Frontiers, the High Court judge ruled that the word “father” in section 1 of the Second Schedule must be read to include mothers, and that the overseas-born children are therefore entitled to citizenship by operation of law. The statement quoted the judge as saying that “the plaintiff’s grievances are real … the discrimination is apparent.”

Following the decision, the de facto law minister, Datuk Seri Wan Junaidi Tuanku, was reported as saying that the ruling was “illuminating,” and that “[i]f the Second Schedule, Part II section 1(b) is to be read literally the word ‘father’ is defined as a male parent only then it is clearly inconsistent with the provision of Article 8(2) Federal Constitution for discriminatory against ‘gender’ in law.” He further said that he believed each provision could not be read in isolation and stressed that equality before the law is a fundamental principle in any democratic country.

However, on September 13, 2021, it was reported that the government had lodged an appeal against the High Court’s decision. Family Frontiers stated it was shocked at the government’s decision to appeal “as three federal ministers including the de facto law minister had openly supported the historic court decision.” In addition, 114 organizations and 52 individuals had issued a joint statement urging the government not to file an appeal. A petition organized by Family Frontiers asking the government to drop the appeal received 10,000 signatures within 24 hours.

There are two courts above the High Court in Malaysia’s court hierarchy: the Court of Appeal and the Federal Court. A retired judge expressed the view that the government’s appeal should go ahead, as the citizenship law would not be settled until there was a final determination by the Federal Court. The home minister subsequently also explained that the Ministry of Home Affairs had sought a stay of execution of the High Court’s order because the ministry would be consulting the Conference of Rulers on amending the Constitution, and that the stay was needed so that the government does not commit contempt of court or violate the Constitution.

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Malaysia: High Court Holds Malaysian Mothers Can Confer Citizenship on Children Born Abroad
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Chicago citation style:

Malaysia: High Court Holds Malaysian Mothers Can Confer Citizenship on Children Born Abroad. 2021. Web Page. https://www.loc.gov/item/global-legal-monitor/2021-09-26/malaysia-high-court-holds-malaysian-mothers-can-confer-citizenship-on-children-born-abroad/.

APA citation style:

(2021) Malaysia: High Court Holds Malaysian Mothers Can Confer Citizenship on Children Born Abroad. [Web Page] Retrieved from the Library of Congress, https://www.loc.gov/item/global-legal-monitor/2021-09-26/malaysia-high-court-holds-malaysian-mothers-can-confer-citizenship-on-children-born-abroad/.

MLA citation style:

Malaysia: High Court Holds Malaysian Mothers Can Confer Citizenship on Children Born Abroad. 2021. Web Page. Retrieved from the Library of Congress, <www.loc.gov/item/global-legal-monitor/2021-09-26/malaysia-high-court-holds-malaysian-mothers-can-confer-citizenship-on-children-born-abroad/>.

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