The Enshrinement of Gender Discrimination in the Malaysian Constitution? – Part I

by | Apr 21, 2023

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About Kuberan Hansrajh Kumaresan

Kuberan Hansrajh Kumaresan is a final-year undergraduate reading Law (Jurisprudence) at New College in the University of Oxford. He volunteered for The Unity Project; a group of people dedicated to removing the NRPF condition for immigrants and is currently conducting legal research for the UNHCR. He was formerly the President of the New College Law Society. As an aspiring human rights barrister, he spends his time debating and mooting frequently as well as playing football with his friends on the weekend. His biggest inspirations are his parents who taught him to love what he does and never stop dreaming and he owes a special debt of gratitude to Stephen Dimelow who made him love public law.

Overturning a High Court decision granting Malaysian mothers the right to pass their citizenship to their overseas born children as is the status quo for Malaysian fathers, the Court of Appeal ruled on a 2-1 split that the High Court erred in its interpretation of the Malaysian Federal Constitution.

For a summary of the applicable law and facts in greater detail, see a previous article on the blog analysing the High Court decision. The Malaysian Cabinet has recently agreed to enable automatic citizenship for children born overseas to Malaysian mothers but this has not at the time of writing been agreed to by Parliament.

The High Court and Court of Appeal disagreed on two key propositions. First, whether a conflict exists between Art 8(2) of the Federal Constitution (FC) prohibiting gender discrimination and Part III of the FC concerning citizenship (specifically Art 14(1)(b) read in conjunction with s1(b) of Part II of the Second Schedule [“impugned provision”]). Second, assuming there is no conflict,  whether an originalist method of statutory interpretation focused on the intention of the “framers” of the constitution is appropriate [85] (see Part II of this blog). In short, I will argue, contrary to the Court of Appeal, that there is a conflict between the relevant articles of the Federal Constitution and that an originalist method of statutory interpretation should not be adopted.

The apparent lack of a conflict between Art. 8(2) of the FC and Part III of the FC

The majority judgement suggests that there has been express authorization of the discrimination of Malaysian mothers (as required by Art 8 of the FC for discrimination to occur) in two ways such that Art 8(2) will not conflict with the Citizenship provisions: (i) Minister’s statements, and (ii) Parliament’s awareness of CEDAW. However, each of these arguments is flawed, and there are (iii) two independent reasons why a conflict between the provisions do indeed exist.

(i) Minister’s statements in the Hansard [32,130]

With respect to the Minister’s statements, Nantha Balan JCA correctly points out that the mere acknowledgement by the Minister when enacting Art 8(2) that the issues of citizenship are “complex” should in no way equate to an active legislative intention to disapply Art 8(2) to the Citizenship provisions [269].

(ii) Parliament’s awareness of Convention on the Elimination of Discrimination against Women (CEDAW) [29, 133]

In justifying the proposition that Parliament could not have intended for Art 8(2) to apply to the Citizenship provisions, Azalina JCA refers to the Malaysian reservation to Art 9(2) of CEDAW, disapplying it to the “nationality of children”. She suggests that Parliament was aware of the reservation, meaning they could not have intended the later Art 8(2) amendment to conflict with it [132].

This reasoning is problematic on two levels. Firstly, it is unclear why a prior reservation to a treaty should undermine the strength of a later amendment to the Federal Constitution – if anything, the will of the later legislator should prevail. Secondly, the judgment contradicts itself as it subsequently holds that international treaties should not be a guide to interpreting the Federal Constitution in an effort to stave off submissions that ratification to the CEDAW Convention show gender discrimination is prohibited in Malaysia [147]. While this parliamentary awareness can be accepted as an alternative argument should one believe international treaties can be used, it cannot be used as an independent reason (as is done at [132]) to suggest that there cannot be conflict between Art 8 and Part III of the FC in so far as recourse to international treaties in interpretation is prohibited.

(iii) Independent reasons for a conflict

There are two independent reasons that can be gleaned from Nantha Balan JCA’s dissent as to why there is a conflict between the above-mentioned provisions. Firstly, Parliament did not either amend the FC such as to place citizenship matters under Art 8(5) when they had the opportunity to exclude it from the ambit of Art 8(2) nor did they include a non-obstante clause [246]. Secondly, the Federal Court noted in CCH that Art 8(5) of the Federal Constitution is an “exhaustive” list of expressly acceptable discrimination within the FC; this article does not permit discrimination with respect to the conferral of citizenship [276].

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