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“KNOWLEDGE of the Constitution, especially its delicate ethnic provisions, is very weak amongst our political leaders, civil servants and captains of industry,” wrote eminent constitutional scholar Shad Saleem Faruqi on the eve of the country’s 61st independence.

It is of concern that political leaders are in the list, more so when they are legally trained.

In her speech debating the 12th Malaysia Plan (12MP), former de facto law and parliamentary affairs minister Pengerang MP Azalina Othman Said questioned why Malaysian mothers were treated differently from Malaysian fathers with foreign spouses.

“Be fair to all. If the mother cannot get it, don’t give it to the fathers either. Why is it that the mothers are denied (the automatic citizenship right for their children) while it is okay for the fathers?” Azalina asked.

“Up to the government to answer. To the others, don’t get mad. I am just asking,” Azalina added.

Please, don’t get mad with the answer here. It is because the Federal Constitution treats both – Malaysian fathers and mothers – differently.

Lest we forget, the Constitution is the supreme law of the land, and it is in the Constitution that the law on citizenship resides.

In the words of Court of Appeal judge Abang Iskandar Abang Hashim (as he then was) “the citizenship provisions … are exclusively housed in the Federal Constitution itself.” (Pendaftar Besar Kelahiran dan Kematian, Malaysia v Pang Wee See & Anor [2017] 3 MLJ 308)

The different treatment can be seen in Section 1, Part II of the Second Schedule (the provision is now referred to as “Section” instead of “Clause” to be consistent with the use of the term by the Federal Court).

Section 1 reads as follows:

“Subject to the provisions of Part III of this Constitution, the following persons born on or after Malaysia Day are citizens by operation of law, that is to say:

(a) every person born within the Federation of whose parents one at least is at the time of the birth either a citizen or permanently resident in the Federation;

(b) every person born outside the Federation whose father is at the time of the birth a citizen and either was born in the Federation or is at the time of the birth in the service of the Federation or of a State.”

The above is the answer why mothers are denied the automatic citizenship right for their foreign-born children “while it is okay for the fathers”.

Mothers, therefore, can only pass on citizenship by registration to their foreign-born children under Article 15(2) of the Federal Constitution. And citizenship by registration is not conferred as a matter of right as the word used in the provision is “may” and not “shall”.

Much has been argued that Section 1(b) above must be read harmoniously with Article 8(2) which prohibits any “discrimination against citizens on the ground of only religion, race, descent, place of birth or gender”.

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