K - Case example: Family Frontiers litigates for equality in Malaysian citizenship laws The Malaysian Constitution has, since independence in 1957, discriminated between men and women in transmission of citizenship to their children born outside the country, and to their foreign spouses. While the children of Malaysian men are attributed citizenship “by operation of law” if they are born outside the country, the children of Malaysian women and foreign men are not automatically attributed Malaysian citizenship if they are born outside Malaysia. These children can only apply to register as citizens, a process that is subject to long delays and inconsistencies in decisionmaking, including repeated rejections without reason. Approval rates for registration are reported as only 3 percent of applications.247 The Constitution also provides for the wives of Malaysian citizens—but not the husbands—to be able to register as citizens. The registration process for wives is also difficult to access, and non-citizen spouses (of either sex), and their children, are left vulnerable in Malaysian society.248 In 2009, the Foreign Spouses Support Group (FSSG) was formed by two mothers to challenge the difficulties they faced in raising Malaysian children as themselves foreigners in Malaysia. From 2015, FSSG expanded its advocacy to support not only foreign spouses but also Malaysian women who could not confer their citizenship on their children. In 2020, Family Frontiers was registered by FSSG and others as a new entity to lead the Malaysian Campaign for Equal Citizenship, with the aim of achieving gender equality in citizenship law.249 The FSSG and Family Frontiers have conducted advocacy across many platforms—from submissions to the UN treaty body mechanisms, to press and social media campaigns, to lobbying parliament. Finally, the decision was made to litigate before the Malaysian courts to challenge the continuing gender discrimination in transmission of citizenship to children born abroad. Family Frontiers issued a call for women whose children affected by the discrimination in the law to volunteer to be complainants in a case. Seventeen mothers forwarded applications, of which six were picked, to illustrate particular situations and challenges. Their multiple applications for citizenship on behalf of their children had been rejected with no reason given—in some cases children of the same mother and father had different outcomes, with one child registered a citizen and others not. Often, applications remained pending for years, despite repeated visits to follow up on applications and supply additional information. Exclusion from citizenship leaves these non-citizen children living in Malaysia without equal access to education and health care. If they are not recognised before they are 21, the registration process is no longer available. In 2021, a case was brought in the names of Family Frontiers and these six mothers against the minister of home affairs and the director-general of the National Registration Department to challenge the discriminatory aspects of the law.250 The government attempted to strike out the cases as “frivolous, vexatious, and an abuse of court process”, but both the High Court and the Court of Appeal ruled that the case could continue. The case was successful at the first instance hearing on the merits. In September 2021, the Kuala Lumpur High Court issued a ground-breaking judgment that Article 14(1)(b) of the Federal Constitution together with the Second Schedule, Part II, Section 1(b) and Section 1(c) of the Federal Constitution, must be read in a harmonious manner with Article 8 of the Constitution which prohibits genderbased discrimination. In doing this, the High Court judge announced that the word “father” must be read to include mother and that their children are entitled to nationality by operation of law.251 The landmark case led to nationwide discussion for the issue with widespread support for change. Many members of parliament stated their support for equal citizenship rights, including ministers from the Ministry of Women, Family and Community Development, the Ministry of Foreign Affairs, a Minister in the Prime Minister’s Department on Law and Institutional Reforms, and the Minister of Communications.252 247 S. Indramalar, “Malaysian mums go to court to challenge sexist nationality laws”, The Star (Kuala Lumpur), May 31, 2021, https://www.thestar.com.my/lifestyle/family/2021/05/31/malaysian-mums-go-to-court-to-challenge-sexist-nationality-laws; Coalition of Malaysian NGOs in the UPR Process, ”Civil Society Mid-Term Report on Malaysia’s Third Cycle in the UPR Process”: “In November 2020, MOHA revealed that they had received a total of 14,477 citizenship applications between the start of 2019 to 15 October 2020. Of these applications, 45 have been successful, 691 were rejected, and 13,741 are still being processed. The backlog of applications is reflective of the waiting period of up to five years that some families have experienced.” https://www.ohchr.org/sites/default/ files/Documents/HRBodies/UPR/NGOsMidTermReports/COMANGO_Malaysia.pdf. Visit to Malaysia: Report of the Special Rapporteur on Extreme Poverty and Human Rights, 6 April 2020 A/HRC/44/40/Add.1, https://documents-dds-ny.un.org/ doc/UNDOC/GEN/G20/087/52/PDF/G2008752.pdf?OpenElement; see also FSSG submission to the Special Rapporteur at: https://www.ohchr.org/Documents/Issues/Poverty/VisitsContributions/Malaysia/ForeignSpousesSuppportGroup.docx. 248 249 Family Frontiers website at: https://familyfrontiers.org/about-us/; Foreign Spouses Support Group Facebook page at: https://www.facebook.com/FSSGMY/. “Case Update: The Right to Citizenship for a Child Born outside Malaysia”, 11 February 2021, https://mahwengkwai.com/case-update-right-citizenship-child-born-outside-malaysia/. 250 251 Suriani Kempe and Ors v. Kerajaan Malaysia and Ors [2021] 8 CLJ 666 [HC]. “Citizenship ruling ‘a ray of hope’ for women – Rina”, Malaysiakini, 11 September 2021, https://www.malaysiakini.com/news/590933; Sulok Tawie, “Law minister lauds KL High Court’s decision on automatic citizenship for children born to Malaysian mothers abroad”, Malay Mail, 9 September 2021, https://www. malaymail.com/news/malaysia/2021/09/09/law-minister-lauds-kl-high-courts-decision-on-automatic-citizenship-for-chi/2004321; “Annuar wants Cabinet to decide on citizenship issue Bernama -September 14, 2021 10:30 PM”, Free Malaysia Today, 14 September 2021, https://www.freemalaysiatoday.com/ category/nation/2021/09/14/annuar-wants-cabinet-to-decide-on-citizenship-issue/; Ida Lim, “Malaysian mums deliver petition on kids’ citizenship bids to Putrajaya, minister says Cabinet to consult AG tomorrow”, Malay Mail, 23 September 2021, https://www.malaymail.com/news/malaysia/2021/09/23/malaysian-mums-deliver-petition-on-kids-citizenship-bids-to-putrajaya-minis/2007793. 252 66 U N H C R | L I T I G AT I N G T H E R I G H T T O A N AT I O N A L I T Y: A G U I D E F O R P R AC T I T I O N E R S