Monday, December 19, 2022


There are a number of things to note under this topic. One, what does the provision of law says? Two, how to apply the intention framed in the provision? Three, does the Court empowered to interpret the provision harmoniously? Lastly, in a worst case scenario where some children fell short under (1), is there any remedy provided by the law?
This part talks specifically for children who born out of Federation whose father at the time of the birth is a citizen. Question may arise as to what will happen to children whose father is a non-citizen but mother is a citizen. Reference shall be made to Article 14 (1) (b), Part II Section 1 (b) of the Second Schedule of the Federal Constitution. In Mahisha Sulaiha Abdul Majeed v Ketua Pengarah Pendaftaran & Ors and another appeal [2022] MLJU 1802, the Court of Appeal followed the precedent of a Federal Court’ decision in CTEB & Anor v Ketua Pengarah Pendaftaran Negara, Malaysia & Ors [2021] 4 MLJ 236 affirming that in applying Article 14(1)(b):
(a) The child must be born outside the Federation.
(b) The word “father” must be interpreted within the intention of the framers -- straightforward. Thus, the word “father” refers to father only, excluding mother. To construe it differently would run afoul from the actual intention and changing the whole context of the provision where legislative history lies beneath it.
The only area where the word “father” includes “mother” is in Section 17 and Part III of the Federal Constitution concerning an illegitimate child. The court is constitutionally estopped from adopting a liberal approach and alter the integral part of the provision even if it caused extensive grievance to the mothers. Whether the provision is just or fair is not an issue to be addressed by the court. This would point back to the doctrine of separation of powers where the only possible way to amend the Constitution is by virtue of Article 159, and that rest within the Parliament only.
It must also be understood that Article 8(2) of the Federal Constitution cannot be read into Section 1(b) of Part II of the Federal Constitution and has no discriminatory element as Section 1(b) carries a distinct meaning therein.
Now, our constitution does not leave these children who fell short under the ambit of the abovementioned provision stateless as the recourse can be found under Article 15 (2) of the Federal Constitution. It confers another mode to apply for citizenship by way of registration. This provision allows mothers to make an application to the Federal Government for their children under the age of twenty-one years whose parents at least one is a citizen subject to further terms.
In a nutshell, it is of great importance that all bodies preserve and adhere to the supremacy of the Federal Constitution. To say that the law is unjust and unfair to mothers, nevertheless, the law should remain untouched as it carries the fundamental of legislative basic structure and intention of the framers.
Author : Nur Farihah Syahriza, Pelatih Dalam Kamar.


0 komen:

Dah baca sila bagi sepatah kata..

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