mother, child, walking
Photo by josealbafotos on Pixabay
By Hafiz Hassan

IN his much-publicised decision, High Court judge Akhtar Tahir ruled that children born overseas to Malaysian mothers are entitled to citizenship by operation of law. According to the learned judge, the word “father” in section 1(b) in Part II of the Second Schedule of the Federal Constitution includes “mother”. He gave a “harmonious” reading of the constitutional provisions.

But, as former Chief Justice Tun Abdul Hamid Mohamad commented, the learned judge should not have stepped into the shoes of the legislature (Parliament) when he so ruled.

Judges do not make law; they apply the law made by the legislature.

A wholesome and harmonious reading of the provisions of the Constitution relating to citizenship was earlier in the year adopted by Chief Justice Tengku Maimun in the Federal Court case of CTEB & Anor v Ketua Pengarah Pendaftaran Negara, Malaysia & Ors [2021] on May 28.

The Honourable Chief Justice’s meticulous examination of the constitutional provisions promoting a harmonious result was agreed to by two other Federal Court judges (Nallini Pathmanathan and Mary Lim FCJJ). But the three learned judges were in the minority.

The majority decision (Rohana Yusuf PCA, Vernon Ong, Zabariah Yusof and Hasnah Hashim FCJJ) however ruled that citizenship by operation of law was by virtue of the Constitution. One either fit the given criteria under the Constitution or one did not. The criteria were clearly stipulated in the Constitution.

Delivering the judgement of the majority, President of the Court of Appeal (PCA), Rohana Yusuf said:

“A student of Constitutional law will appreciate that not all forms of discrimination are protected by [Article 8]. Article 8 opens with ‘Except as expressly authorised by this Constitution’. In short, discrimination authorised by the [Constitution] is not a form of discrimination that [Article 8] seeks to protect. There are in fact a number of discriminatory provisions expressed in the [Constitution] which include [Article 14]. Since the discriminatory effect of [Article 14] is one authorised by the [Constitution], it would be absurd and clearly lack of understanding of [Article] 8 for any attempt to apply the doctrine of reasonable classification, to [Article 14].”

The learned President continued:

“I am in full agreement with the views expressed that the provisions on citizenship are gender bias in that it emphasizes on the citizenship of the father and not the mother. I hasten to add, lest it be misunderstood that I am all for the abolition of gender discrimination.”

A number of pertinent questions were then raised by the learned President:

Can the court ignore or neglect the clear dictates of the Constitution and overcome that authorised gender bias in the name of progressive construction of the Constitution?

Since the Constitution discriminates between a father and a mother, can the court alter that discrimination so as to keep the Constitution living dynamically in order to avoid it from being locked and fossilised in 1963?

What about the much-lauded doctrine of separation of powers and the judicial oath of upholding the Constitution?

Is it not the doctrine of separation of powers which forms the basis of our democratic nation that deserves our attention and respect?

Is the court in holding the supremacy of the Constitution to indulge in amending clear words to uphold and prohibit discrimination which the FC authorises?

In answer to the above questions, the learned President said:

“We all know that there is no judicial supremacy articulated in our Federal Constitution, and the power to amend the Constitution rests solely with the Parliament by virtue of art 159. The court cannot at its own fancy attempt to rewrite the clear written text of the Constitution because it would only lead to absurdity.”

The only way the discrimination may be altered is by way of the amendment of the Constitution.

It is therefore curious that Justice Akhtar decided to give a harmonious reading of the constitutional provisions on citizenship. The learned judge was bound by the majority decision of the Federal Court to give effect to the fundamental rule in interpreting the Constitution or any written law which is “to give effect to the intention of the framers.”

The court cannot insert or interpret new words into the Constitution. The court may only call in aid of other canons of construction where the provisions are imprecise, protean, evocative or can reasonably bear more than one meaning.

As Rohana Yusuf PCA said in her judgement, the court should not endeavour to achieve any fanciful meaning against the clear letters of the law.

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