Solve discrimination against children born abroad to Malaysian women by amending the 2nd Schedule of the Constitution
9 December 2020
We refer to the statement by the Deputy Home Minister Ismail Mohamed Said that children born abroad to Malaysian women with foreign spouses threatens national security and sovereignty.
It is a ridiculous notion to suggest that newborns could in any way threaten Malaysia’s security and sovereignty simply because they could be granted dual-citizenship. If that was truly the case, the Government must also bar Malaysian men with foreign spouses from granting citizenship to their children over the same ‘security concern’.
The government is wilfully ignoring the fact that the introduction of Convention on the Elimination of all Forms of Discrimination Against Women (CEDAW) grants equal rights to women to choose the nationality of their children.
The same ‘risk’ that there may be dual-citizenship also exists in relation to children of Malaysian men with foreign spouses. Why discriminate against the women?
It should be plain as day that the issue of dual-citizenship is no threat to Malaysia’s sovereignty and security. This cannot be used as a reason to deny Malaysian women the right to their children’s entitlement to Malaysian citizenship.
We also disagree with the Deputy Home Minister that Article 15(2) of the Constitution is a viable solution to this issue. This is due to the fact that applications made under this provision are not automatic, and the children suffer the risk of being stateless should the application for citizenship be rejected. Being born to Malaysian mothers, these children cannot be denied citizenship at the whims and fancies of bureaucrats at the Home Ministry.
Whilst an angry debate has recently swirled around this issue, viable proposals to resolve it have been lacking.
The only answer to this problem is by acknowledging that Malaysian women with foreign spouses should have equal rights to grant their children with Malaysian citizenship. This can be done by amending Part II of the Second Schedule of the Federal Constitution to substitute the word ‘father’ with ‘parent’. Such an amendment would be consistent with the spirit of the Constitution as Article 8(2) itself has already disallowed any discrimination based on gender.
Irrespective of our reservation to Article 9(2) of CEDAW, there is nothing to stop the Government from making this amendment. The primary consideration here should ultimately be the rights of Malaysian women to have their children be citizens by operation of law; a right long granted to Malaysian men, but unconscionably denied to women.
We therefore urge the government to immediately propose the necessary amendments to the Constitution and acknowledge the rights of Malaysian women with foreign spouses to grant citizenship to their children.
We are confident the opposition parties in parliament will support such an amendment which requires a two thirds majority. If the opposition does not support the removal of a grossly discriminatory clause of the constitution, the opposition will face the wrath of all right-thinking voters.
Lawyers for Liberty