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In view of the constitutional prohibition on ‘discrimination against citizens on the ground only of … gender’ in Article 8(2) of the Federal Constitution, is the Court at liberty to interpret Section 1(b) of Part II in the Second Schedule so as to remove the discriminatory effects of that provision, or must that task be left to Parliament?
The Court of Appeal recently confronted this question in Mahisha Sulaiha Abdul Majeed v Ketua Pengarah Pendaftaran & Ors and Another Appeal,[1] concluding by a 2-1 majority that ‘matters concerning sensitive and controversial moral and social issues are inherently legislative questions’.[2] Accordingly, the Court could not reinterpret Section 1(b) of Part II of the Second Schedule so as to grant citizenship by operation of law to children born outside Malaysia to Malaysian mothers and non-Malaysian fathers.
1.0 BACKGROUND
Mahisha Sulaiha involved two related appeals which raised the same issue of law, namely whether children born outside Malaysia to a Malaysian mother and a non-Malaysian father qualify for automatic Malaysian citizenship at birth (‘citizenship by operation of law’). Citizenship by operation of law is one of the four ways of acquiring Malaysian citizenship (the others being citizenship by registration, naturalization, and incorporation of territory[3]). It is significant that citizenship by operation of law is automatic upon meeting the requirements specified in the Second Schedule of the Federal Constitution, and is therefore not dependent on the discretion of the Government.[4]
The Federal Constitution provides for the grant of automatic citizenship on a combination of jus soli and jus sanguinis factors, that is to say, depending on where the person was born and the citizenship status of the person’s parents at the time of his/her birth as provided for under Section 1 of Part II of the Second Schedule provides that the following persons born after Malaysia Day are citizens by operation of law.
It is readily apparent from the aforementioned section that in the case of children born outside Malaysia and Singapore, whether or not the child receives citizenship by operation of law at birth depends on the citizenship status of his/her father. Therefore, in such cases, Malaysian fathers are able to ‘pass’ Malaysian citizenship to their children born abroad, but Malaysian mothers are unable to do so if their husbands are not Malaysian citizens.
The Federal Constitution contains an equality clause and a general prohibition on discrimination in Article 8, which reads:
(1) All persons are equal before the law and entitled to the equal protection of the law.
(2) 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…
The words ‘or gender’ were inserted into Article 8(2) by way of constitutional amendment on 28 September 2001, following Malaysia’s accession to the Convention on the Elimination of All Forms of Discrimination Against Women (CEDAW) in 1995.[5]
The two appeals in Mahisha Sulaiha arose out of separate applications which met very different fates in the High Court. In Mahisha’s case, a daughter born in India to a Malaysian mother and an Indian national failed in her application to be recognized as a Malaysian citizen by operation of law, as the High Court adopted a literal interpretation of Section 1(b), Part II Second Schedule above.[6] However in the other case, a group of Malaysian women married to foreign spouses succeeded in their application to the High Court at Kuala Lumpur for their children born outside Malaysia to be recognized as citizens by operation of law.[7] Akhtar Tahir J held that all provisions of the Federal Constitution ‘are to be interpreted harmoniously and purposively so as not to render any provision … otiose or nugatory’.[8] Accordingly, when interpreted harmoniously with Article 8(1), which guarantees equality before the law, and Article 8(2), which prohibits discrimination on the ground of gender in any law, the word ‘father’ in Section 1(b) is to be interpreted as ‘father or mother’.[9] Emeritus Professor Shad Saleem Faruqi has celebrated this decision as ‘lend[ing] credence to the view that the judiciary is not merely a legal institution but also a moral institution with a responsibility to add moral colours to the legal canvas whenever that is possible’.[10]
2.0 DECISION OF THE COURT OF APPEAL
The Court of Appeal, by a 2-1 majority, allowed the Government of Malaysia’s appeal in Suriani Kempe’s case and dismissed Mahisha Sulaiha’s appeal. Kamaludin Said JCA and Azizah Nawawi JCA delivered separate judgments for the majority, and S. Nantha Balan JCA dissented.
Kamaludin Said JCA opined that by interpreting ‘father’ in Section 1(b) as including ‘mother’, the High Court ‘is in fact re-writing the law in relation to the grant of citizenship to a child born outside the Federation’.[11] His Lordship relied on ‘the real intention of the framers of the Constitution’, highlighting that the constitutional drafters intended automatic citizenship to be conferred on persons born outside the Federation whose father is a citizen.[12] As for the application of Article 8(2), His Lordship held that ‘the discriminatory effect of art. 14 is one authorized by the FC’[13] and furthermore that ‘s.1(b) is not gender discrimination against women’ because of ‘an express caveat that the amended art. 8(2) … shall not apply to provisions on citizenship under Part III Second Schedule’.[14] In this, however, His Lordship appears to have been referring to a ‘caveat’ mentioned in the course of parliamentary debates during the amendment of Article 8(2), since no such caveat appears in the text of Article 8(2) itself.
Azizah Nawawi JCA also canvassed the drafting history of Section 1(b), concluding that ‘the framers of the Constitution have ascribed a distinct meaning to the word “father” in s.1(b) … [t]he word “father” simply means the biological father who is a Malaysian citizen [and] it cannot mean the biological Malaysian mother as in the present appeals.’[15] Accordingly, there was no room to contend for a harmonious interpretation with Article 8(2) as there is only one possible construction of Article 14(1)(b) read with Section 1(b) of Part II of the Second Schedule, that is, the word ‘father’ refers only to the biological father.[16] Moreover, Article 8(2) must not be ‘given primacy or priority over Article 14(1)(b) read with Section 1(b) … because all provisions in the FC are of equal standing as between themselves and are not subordinate to any other.’[17]
Both majority judgments also emphasised that the provisions on citizenship in the Federal Constitution are entrenched by Article 159(5), which requires any amendment to these provisions to receive the consent of the Conference of Rulers, in addition to the usual requirement of a two-thirds majority of the total number of members in both Houses of Parliament. Therefore, ‘if the society want (sic) changes to the law on citizenship, then Parliament is the forum to bring such changes as legislation is the manifestation of the will of the people.’[18] The Court could not countenance ‘judicial legislation to amend … Part II Second Schedule, by-passing the Conference of Rulers’.[19]
The dissenting judge highlighted that ‘art.14(1)(b) read together with s.1(b), Part II, Second Schedule … is totally and inherently discriminatory of the rights of Malaysian mothers.’[20] S. Nantha Balan JCA noted that when amending Article 8(2) to include ‘gender’ as a prohibited basis of discrimination against citizens, Parliament did not amend Article 8(5) (the list of permitted instances of discrimination in Article 8) to include citizenship matters, or amend relevant provisions in the Second Schedule such as Section 1(b) of Part II in order to add a non-obstante clause.[21] Hence, Article 14(1)(b) is subject to the influence of Article 8(2), and it should be read in a non-discriminatory way as to be aligned with Article 8(2) to include “mother”’.[22] In applying the organic method of constitutional interpretation, the Court ‘is called upon to give recognition to current constitutional changes (the 2001 amendment) and not to interpret constitutional provisions as though they stand fossilised as at August 1957.’[23] In so doing, the Court ‘is neither amending nor re-writing the Federal Constitution’, but merely making ‘a curial statement of its proper interpretation by reliance on other parts of the Federal Constitution which influenced its proper reading’.[24]
The Malaysian mothers in this case have since applied for leave to appeal this decision at the Federal Court.[25]
3.0 DISCUSSION
Mahisha Sulaiha raises the interesting question of the proper role of the judiciary in interpreting the Federal Constitution, and the limits of its interpretative powers. It thus develops on the theme of the nature and extent of judicial power in the Malaysian constitutional framework, which has been the subject of anxious consideration recently in the context of ouster clauses and the ‘basic structure doctrine’.[26]
As canvassed above, the judges in the majority held that once the wording of the Federal Constitution is plain and the intention of the framers reasonably clearly established, the courts must apply the relevant provisions as they stand, and any alteration is for Parliament to make via the process of constitutional amendment. This is consistent with the majority decision in CTEB & Anor v Ketua Pengarah Pendaftaran Negara, Malaysia & Ors,[27] a judgment from which both Kamaludin Said JCA and Azizah Nawawi JCA drew extensively. The majority judgment in CTEB cautioned that ‘there is no judicial supremacy articulated in our Federal Constitution’ and ‘the court cannot at its own whims and fancies attempt to rewrite the clear written text of the Federal Constitution’.[28]
However, with the greatest respect, it is important to accurately categorise what the High Court was doing in Suriani Kempe. The Court’s modification of the literal meaning of Section 1(b) was merely to give effect to another – equally plain and unambiguous – provision of the Federal Constitution, namely Article 8(2) and its prohibition on discrimination against citizens ‘on the ground only of … gender’. It is not the case that Article 8(2) is being put ‘on a higher pedestal’, or ‘given primacy or priority’ over other provisions. Article 8(2) is merely a tool by which the correct application of other provisions such as Article 14(1)(b) and Section 1(b) is revealed. Viewed from another angle, the court is merely carrying out the directive of Parliament, when it amended Article 8(2) to include ‘gender’ as a prohibited form of discrimination, by ensuring that there is no such discrimination ‘in any law’. As defined by Article 160(2) of the Federal Constitution, and indeed underscored by Tengku Maimun CJ in Her Ladyship’s dissenting judgment in CTEB, the word ‘law’ includes the Federal Constitution itself.
This brings us to the majority judgments’ concern that judicial interpretation of the word ‘father’ in Section 1(b) to mean ‘father or mother’ amounts to judicial rewriting of the Federal Constitution, circumventing the entrenchment clause in Article 159(5). However – again with the greatest respect – this concern only arises if what the court is doing effectively amends Section 1(b). Here, it is submitted that no amendment has taken place, because the High Court in Suriani Kempe was merely giving effect to the correct, post-2001 interpretation of Section 1(b) in light of Parliament’s intention in amending Article 8(2). In addition, as Nantha Balan JCA observed, Section 2(94) of the Eleventh Schedule, which allows for the construction of words importing the masculine gender to include females, can be used to inform the court’s interpretation of Section 1(b).
In the timeless words of Raja Azlan Shah FCJ (as His Royal Highness then was) in Loh Kooi Choon v Government of Malaysia, ‘the Constitution as the supreme law … cannot be inconsistent with itself’.[29] It therefore falls upon judges to adopt a holistic interpretation of the various constitutional provisions, so that the supreme law operates as a harmonious whole. This is a clearly distinct exercise from that of constitutional amendment, which creates substantive and original changes to the wording of the provision. As no amendment, express or implied, is being effected to Section 1(b) here, with all due respect the question of obtaining the consent of the Conference of Rulers for the purposes of Article 159(5) simply does not arise.
Another interesting feature of the majority judgments in Mahisha Sulaiha is the use of ‘social contract’ arguments to justify judicial self-restraint in that case. Kamaludin Said JCA observed:
The careful and balanced provisions of the Constitution guaranteeing legitimate interests of all races in Malaysia are the very foundation upon which the nation rests … the parliamentary process is a better way of resolving issues involving controversial and complex questions of fact arising out of moral and social dilemmas.[30]
Azizah Nawawi JCA opined that:
Citizenship is certainly part of the social contract … [h]ence, where the provisions on citizenship involved policy considerations by our forefathers, and formed part of the social contract, they may only be altered by the Malaysian citizens through their representatives in Parliament, subject to the approval from the Conference of Rulers.[31]
This is an interesting approach, considering that the ‘social contract’ involved essentially the inter-communal bargain of citizenship of the new nation of Malaya (and subsequently Malaysia) in exchange for the special privileges of the Malays and (later, in 1971) the native communities of Sabah and Sarawak.[32] It is not clear how, if at all, the ‘social contract’ is relevant to the question of the correct interpretation of Section 1(b) vis-à-vis Article 8(2) in this case and, if it is indeed relevant, why it should impel towards a strictly literal reading of Section 1(b). Could it not be that the social contract in fact strengthens the Malaysian mothers’ argument that their citizenship – which forms part of the historic social contract – must be respected on an equal basis with Malaysian men, as enshrined in Article 8(2)? Conversely, how would shutting the door on citizenship for these Malaysian mothers’ offspring enhance or support the social contract? Since this is not a communal issue – the interpretation of Section 1(b) either way would apply to all Malaysian women who marry foreign spouses, regardless of ethnicity – and the ‘social contract’ in Malaysian constitutional history is an overtly communal-based one, it is difficult to see how the social contract can serve as a justification here. This approach appears to risk unnecessarily associating the ‘social contract’ – a carefully-crafted cross-community compromise – with significant injustice in the form of discrimination against the Malaysian mothers’ non-citizen offspring.[33]
A final observation that could be made concerns the use of ‘basic structure doctrine’ in the judgment of Kamaludin Said JCA, where His Lordship appears to endorse the Senior Federal Counsel (SFC)’s argument that Article 8, as a ‘fundamental provision’, ‘cannot be amended or amendment for desirable development could never take place.’[34] There are several problematic aspects of this discussion: firstly, ‘basic structure doctrine’ does not in fact mean that Article 8 can never be amended, but only that it cannot be amended in such a way that would destroy the basic structure of the Federal Constitution.[35] Second, on the facts of Mahisha Sulaiha it is not at all clear how, by adding ‘gender’ as a prohibited category of discrimination and thus amplifying the reach and effect of Article 8(2), the 2001 constitutional amendment could be said to have destroyed any basic feature of the Federal Constitution. Third, neither the appellants nor the Government challenged the constitutionality of the 2001 amendment to Article 8(2), and thus the issue of basic structure doctrine simply does not arise.
4.0 CONCLUSION
It is noteworthy that in the recent 15th General Election, all three nationwide coalitions – Barisan Nasional, Perikatan Nasional and Pakatan Harapan – included in their manifestos a pledge to address the discriminatory effect of Article 14(1)(b). This outpouring of support is commendable, and it is now for the politicians in the unprecedented ‘unity government’ to follow through on their pledges in this regard.
Yet at the same time, the issue of whether the courts can adopt a holistic and harmonious interpretation of the Federal Constitution in the way that Akhtar Tahir J in the High Court did in Suriani Kempe remains uncertain following the decision in Mahisha Sulaiha. This is a question that could have momentous implications for the protection of the rights and liberties apparently guaranteed by Part II of the Federal Constitution. It is hoped that we will in due course have the benefit of the Federal Court’s deliberations on the extent to which the courts can decline to be bound by a literalist application of the Federal Constitution in favour of one that is more consonant with a purposive reading of the Part II fundamental liberties.
REFERENCES
[1] [2022] 8 CLJ 697.
[2] Ibid [42] (Kamaludin Said JCA).
[3] Federal Constitution, arts 15–22.
[4] Ibid art 14(1).
[5] Constitution (Amendment) (No.2) Act 2001, s 3.
[6] n.1 above at [7].
[7] Suriani Kempe & Others v Kerajaan Malaysia & Others [2021] MLJU 1864.
[8] Ibid at [42].
[9] Ibid at [56], [57].
[10] Shad Saleem Faruqi, ‘Case Commentary on Suriani Kempe v Kerajaan Malaysia’ [2021] 4 MLJ cxlix.
[11] n.1 above at [20].
[12] Ibid at [13].
[13] Ibid at [31].
[14] Ibid at [32].
[15] Ibid at [92].
[16] Ibid at [102].
[17] Ibid at [112].
[18] Ibid at [120].
[19] Ibid at [39] (Kamaludin Said JCA).
[20] Ibid at [183], [236].
[21] Ibid at [246]. A non-obstante clause continues the operation of the provision to which it is attached, regardless of some other conflicting provision in the document.
[22] Ibid at [252].
[23] Ibid at [255].
[24] Ibid at [261].
[25] John Bunyan, ‘Family Frontiers files leave to appeal citizenship ruling at Federal Court’ (Malay Mail, 27 August 2022) <https://www.malaymail.com/news/malaysia/2022/08/27/family-frontiers-files-leave-to-appeal-citizenship-ruling-at-federal-court/25081> accessed 9 December 2022.
[26] See Indira Gandhi a/p Mutho v Pengarah Jabatan Agama Islam Perak & Ors [2018] 3 CLJ 145 (Federal Court); Maria Chin Abdullah v Ketua Pengarah Imigresen & Anor [2021] 2 CLJ 579 (Federal Court); Dhinesh Tanaphll v Lembaga Pencegahan Jenayah & Ors [2022] 5 CLJ 1 (Federal Court)
[27] [2021] 4 MLJ 236 (Federal Court).
[28] Ibid at [89].
[29] [1977] 2 MLJ 187 at 190.
[30] n.1 at [42].
[31] Ibid [118], [120].
[32] See eg Andrew Harding, The Constitution of Malaysia: A Contextual Analysis (2nd ed, Hart Publishing 2022) ch 3.
[33] For a summary of these difficulties see n 1, [191].
[34] Ibid at [35], [36].
[35] Kesavananda Bharati v State of Kerala & Anor (1973) 4 SCC 225 (Supreme Court, India); Minerva Mills & Ors v Union of India AIR 1980 SC 1789 (Supreme Court, India); Indira Gandhi a/p Mutho (n 26 above).