Women still discriminated despite guarantee of gender equality under Federal Constitution

24 August 2022

By Wartawan Nabalu News

KOTA KINABALU: It is ironic that although the principle of gender equality is guaranteed under the Federal Constitution, there are still laws that discriminate against Malaysian women, says former Deputy Chief Minister Datuk Christina Liew.

She said Malaysia had ratified the Convention on the Elimination of All Forms of Discrimination Against Women 1979 (Cedaw) in 1995.

Furthermore, Article 8(2) of the Federal Constitution was amended in July 2001 to prohibit gender discrimination, that is, there shall be no discrimination against citizens on the basis of sex in any law. Hence, the word 'gender' is included in the Article as one of the grounds for non-discrimination.

Liew, who is also Tawau MP cum Api-Api Assemblywoman, was referring to the country's citizenship laws that do not give mothers and fathers equal rights.

She lamented that while the Federal Constitution gives Malaysian men the right to confer nationality on children born abroad through registration, the same cannot be said of Malaysian women who are married to non-Malaysian men.

On August 5, Malaysia's Court of Appeal ruled that children born overseas to Malaysian women, who are married to foreign spouses, are not entitled to be Malaysian citizens by operation of law.

On September 9, 2021, the High Court had, in its decision, recognised that Malaysia's citizenship laws discriminated against women. The Court had also ruled that children born overseas to Malaysian mothers (with non-Malaysian spouses) should also be entitled to Malaysian citizenship, and had held that the word 'father' in Section 1(b), Part II of the Second Schedule (of the Federal Constitution) must be read to include 'mother'. However, the Court of Appeal overturned the High Court's ruling earlier this month.

In her National Women's Day message this year, the Tawau MP said : 'I feel for the thousands of Malaysian mothers out there who are facing gender bias despite what is enshrined in the Federal Constitution.

"They have been waiting for a favourable reply to their overseas-born children's applications for Malaysian citizenship since 2018.

"I urge affected mothers in the country in general and in Sabah in particular, not to give up hope but to continue their 'struggle' by lobbying for legal reforms until there is light at the end of the tunnel."

Liew, a lawyer herself, also encourages women's rights advocates and common interest groups (CIGs) in the country to pursue the campaign for equal nationality rights. (Incidentally, this year's International Women's Day theme is "Break The Bias").

On August 21, Attorney-General Tan Sri Idrus Harun had stated that children born abroad to Malaysian women (married to non-Malaysian men) may not get automatic citizenship at birth but they can still apply to be Malaysians.

The Tawau MP echoed calls to amend Section 1(b), Part II of the Second Schedule of the Federal Constitution "so that the word 'father' can be extended to include the 'mother' or 'parents'."

As it is, Article 14(1)(b) of the Federal Constitution (Citizenship by Operation of Law) provides that "every person born on or after Malaysia Day, and having any of the qualifications specified in Section 1(b), Part II of the Second Schedule, is a citizen by operation of law".

And Section 1(b) states that every person born outside the Federation, whose father is at the time of the birth a citizen and either was born in the Federation, is a citizen by operation of law.

"However, the provision in Section 1(b) does not mention the mother of a child born outside the Federation," Liew said.