Press Release: The Constitution Amendment Bill is in breach of Article 8 & is unconstitutional as it deprives thousands of existing children born overseas to M’sian mothers of citizenship
I refer to the Constitution Amendment Bill 2024 which was tabled in Parliament on Monday and is expected to be debated this week.
By virtue of clause 12 of the Bill, only children born after the coming into effect of the Act will automatically be Malaysian citizens. Thousands of existing stateless children born to Malaysian mothers overseas will remain stateless. They will receive no benefit from the new amendments despite the government’s repeated promises that the amendments are made to resolve their citizenship woes. In short, after all the promises, they have been cheated once again.
This discrimination between those children born prior to the date of the Act and those born after is arbitrary and unconstitutional.
By virtue of Article 8 of the Federal Constitution, “all persons are equal before the law.” In other words persons in like circumstances must be treated alike. Here, children born to Malaysian mothers overseas prior to the coming into effect of the amendments are not being treated alike with those born after that date. In short, the bill discriminates against the existing children. While parliament can differentiate between different classes of persons, there is no rational basis for treating the children differently based upon whether they are born before or after the date of the Act. Any reasonable person can see how unjust this is. Hence, clause 12 of the Bill is in blatant breach of Article 8 of the Constitution.
Similarly, the rule of construction that acts of parliament are not to be read to take effect retrospectively is displaced by the overriding effect of Article 8. In this case, the amendments must take effect to confer citizenship by operation of law upon children born prior to the date of the Act. For this to happen, the government must withdraw clause 12 of the Bill and allow equal and fair application of the benefits of the amendments.
The government’s actions in this case appears tainted by a motiveless malignity. It costs nothing for the government to include the existing children under the new amendments.
We strongly urge the government to withdraw the unconstitutional clause 12 and for clarity insert a provision that it applies to children born prior the date of the Act as well, before proceeding further with the bill.
Meanwhile, individual members of parliament must examine their conscience. They cannot vote knowingly for an unconstitutional provision with such cruel and wide-ranging effect upon innocent children. They must not let the parliamentary party whip emasculate their sense of right and wrong.
Issued by,
N Surendran
Advisor, Lawyers for Liberty & former Member of Parliament
27 March 2024