The Citizenship Battle Between Malaysian Mothers And The Government Of Malaysia Commentary On Suriani Kempe V. Kerajaan Malaysia

• Published date: 16 March 2023
• Subject Matter: Government, Public Sector, Litigation, Mediation & Arbitration, Constitutional & Administrative Law, Trials & Appeals & Compensation
• Law Firm: Kevin Wu & Associates
• Author: Hussaini Rozi

Despite being one of the fast-growing countries in the Southeast Asian region, Malaysia falls behind from the 150 countries across the globe that have amended their legislations giving women the equal right to confer citizenship to their children regardless of the children being born abroad or whether their spouses are foreign nationals¹. Seeking citizenship right for the children born overseas is of critical importance to Malaysian mothers, especially when the mothers reside in Malaysia and their children who are non-Malaysians do not enjoy free basic access to education, healthcare and other rights enjoyed by Malaysian citizens.

A glimpse overview on provisions on citizenship by operation of law under the Federal Constitution which is Article 14(1)(b) read together with Part II of the Second Schedule²:

(1) Subject to the provisions of this Part, the following persons are citizens by operation of law, that is to say: (b) every person born on or after Malaysia Day, and having any of the qualifications specified in Part II of the Second Schedule.cross refer with section 1(b) Second Schedule: Part II:

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: (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 oris at the time of the birth in the service of the Federation or of a State ...³

By reading the provisions above, there is a distinct line between a child born in the Federation and a child born out of the Federation whereby the former gives automatic citizenship by law if either father or mother is a citizen of the Federation. While the latter only becomes a citizen if and only the father is a Malaysian citizen. This essentially means that a child born overseas will not be conferred Malaysian citizenship if the parent who is the citizen of Malaysia is the mother. However, the provision in Article 14(1)(b) and Part II of the Second Schedule are in conflict with Article 8(2) which guarantees no discrimination against citizens on the ground of religion, race, descent, place or gender in any law⁴.

The 2021 landmark judgment in Suriani Kempe & Ors v Kerajaan Malaysia & Ors [2021] 12 MLJ 558

The case of Suriani Kempe (President and office bearer of Persatuan Kebajikan Sokongan Keluarga Selangor & Kuala Lumpur (Family Frontiers)) & Ors v Kerajaan Malaysia & Ors⁵ illustrates the real scenario of how gender-biased and discriminatory citizenship law could affect the Malaysian mothers with their overseas-born children. The Plaintiff was the President of Woman's Association called Family Frontiers which involves with the wellbeing and upbringing of families in...