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2022 MarsdenLR 2837
COURT OF APPEAL PUTRAJAYA
MAHISHA SULAIHA ABDUL MAJEED – Appellant
Versus
KETUA PENGARAH PENDAFTARAN & ORS AND ANOTHER APPEAL – Respondent
[Civil Appeal Nos: W-01(A)-273-06-2020 & W-01(NCVC)(A)-531-09-2021]
The phrase 'father' in citizenship provisions is interpreted to include 'mother' in light of gender equality mandates, aligning citizenship rights with constitutional equality standards.
Headnote:(A) Federal Constitution – Article 14(1)(b) – Citizenship by operation of law – Children born overseas to Malaysian mothers – Appellants sought declarations against Government for citizenship claims where fathers are non-citizens – High Court's decisions conflicted – Dismissal for one, allowance for another based on interpretation of 'father' – Article 8(2) referenced for gender equality in citizenship – Discrimination raised under art 14(1)(b) as unconstitutional. (Paras 8, 9, 15, 18, 106, 107, 288)
(B) Citizenship and Gender Equality – Citizenship provisions in Federal Constitution must be read harmoniously with fundamental rights – Courts cannot rewrite explicit texts but should interpret with societal evolution – Historical context of citizenship provisions examined alongside amendments to guarantee gender equality. (Paras 3, 215, 252)
| Date | Event |
|---|---|
| Up to October 2023 | The interpretation of the term "father" in citizenship provisions is based on its plain and ordinary meaning, specifically referring to the biological father. |
| Up to October 2023 | In cases of illegitimacy, the term "father" is to be construed as "mother," as clarified by section 17 of Part III. |
| Up to October 2023 | Citizenship laws are part of the Federal Constitution, and their interpretation must align with the intentions of the framers and constitutional principles of harmony and non-discrimination. |
| Up to October 2023 | Citizenship provisions are entrenched within the constitutional social contract, requiring proper constitutional processes, including involvement of the Conference of Rulers, for any amendments. |
| Up to October 2023 | Judicial reinterpretation to include "mother" in the term "father" without proper constitutional amendment is impermissible. |
| Up to October 2023 | The interpretation of citizenship provisions should follow a literal, harmonious, and purposive approach, avoiding absurdity or inconsistency. |
| Up to October 2023 | Amendments introducing gender equality principles should be interpreted consistent with original intent and constitutional safeguards, with any discrimination being narrowly construed or corrected through proper amendments. |
JUDGMENT
Introduction
[1] There are two related appeals before this Court:
(i) W-01(A)-273-06/2020; and
(ii) W-01(NCvC)(A)-531-09/2021.
[2] In W-01(A)-273-06-2020 ("Appeal 273"), the learned High Court Judge had dismissed the appellant's application for several declaratory orders on citizenship under the Federal Constitution (" FC "). This appeal is the appellant's appeal against the said decision.
[3] In W-01(NCvC)(A)-531-09-2021 ("Appeal 531"), the learned High Court Judge had allowed the respondents' application for several declaratory orders on citizenship under the FC . This is the Government of Malaysia's ("GOM") appeal against the decision of the learned Judge.
A: W-01(A)-273-06-2020/Appeal 273
Salient Facts
[4] The appellant ("Manisha") was born in Chennai, India on 1 October 1997. Her biological father, Abdul Majeed Gani is an Indian citizen, whilst her biological mother, Masnah Banu binti Kamal was confirmed as a Malaysian citizen on 11 July 1998.
[5] Manisha's parents were married under the laws of India on 10 June 1996. Subsequently they registered their marriage in Malaysia on 27 December 2005 at the Kulim Religious Department, District of Kulim, Kedah.
[6] Manisha is married to Mohamed Naveen Sheik Mohideen (Republic of India Passport No: H5607785) on 12 August 2016 at Jabatan Agama Islam Wilayah Persekutuan under the Malaysian Islamic Family Law (Federal Territories) Act 1984.
[7] Manisha had submitted applications for citizenship by registration under art 15(2) of the FC , but were rejected by the GOM.
Originating Summons: WA-24-73-12-2019
[8] Manisha then filed an Originating Summons seeking the following relief:
(i) A declaration that Manisha is a citizen of Malaysia by operation of law by virtue of the citizenship of her mother, Masnah Banu binti Kamal (NRIC No: 720329-02-6253) pursuant to art 14(1)(b), Part II s 1(b) of the Second Schedule of the FC ;
(ii) A declaration that the word "father" in para of the Second Schedule of the FC shall be interpreted to mean either parent, that is, father or mother;
(iii) A declaration that the GOM's failure, refusal or omission to recognise Manisha as a citizen of Malaysia contravenes art 8 of the FC ; and
(iv) An order that the GOM issue Manisha with a NRIC/MyKad or a Certificate of Confirmation of Status of Citizenship which confirms Manisha as a citizen of Malaysia within 14 days from the date of service of this order on the GOM.
Decision Of The High Court
[9] On 21 May 2020, the learned High Court Judge had dismissed Manisha's application with no order as to cost.
B: W-01(NCvC)(A)-531-09-2021/Appeal 531
Salient Facts
[10] The 1st respondent, Suriani Kempe, is the president and office bearer of a non-profit society, (Association of Family Support & Welfare Selangor & Kuala Lumpur ("Family Frontiers"), registered under the Societies Act 1966 and brings this action for and on behalf of the society and its members.
[11] The 2nd to 7th respondents are Malaysian mothers who are married to foreign spouses who had given birth to their children outside the Federation. It is also not in dispute that the children had acquired the citizenship of their non-citizen father's nationality. In any event, none of the children are without citizenship or stateless.
[12] The 2nd to the 7th respondents have applied for their children's citizenship by registration pursuant to art 15(2) of the FC . However, their applications have since been rejected by the GOM.
Originating Summons: WA-24NCvC-2356-12-2020
[13] The respondents have filed the Amended Originating Summons ("OS") seeking declaratory orders that their children are entitled to a Malaysian citizenship by operation of law under art 14(1)(b) read with the Second Schedule, Part II, s 1(b) and/or 1(c) of the FC . The prayers sought in OS are as follows:
(i) a Declaration that art 8 and art 14(1)(b) of the FC read with the Second Schedule, Part II, s 1(b) ought to be interpreted organically and harmoniously so as to not result in an interpretatio
