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

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.

The Court of Appeal of Malaysia ruled that Malaysian mothers did not have the right to pass their citizenship to their overseas born children as is the status quo for Malaysian fathers. To recall from Part I, contrary to that decision, I have submitted that there is a conflict between the two relevant provisions of the FC because the Minister’s statements in the Hansard and Malaysian reservation to CEDAW is insufficient to act as express authorization of such discrimination (as necessary to preclude a conflict).

In so far as there is a conflict between these two provisions, it inevitably follows that the impugned provision “can reasonably bear more than one meaning” such that the court can call into use other cannons of construction besides “giving effect to the intention of the framers” [105]. Therefore, if there is a conflict, as Azalina JCA concedes, harmonious interpretation is necessary [102 – 105].

The majority provides two independent reasons why harmonious interpretation should not be used even if this conflict exists.

(i) Use of a harmonious interpretation would amount to judicial rewriting of law [39,127]

According to the majority, harmonious interpretation would amount to rewriting the law from the bench on complex social issues that should be the remit of parliament [18]. There are three problems with this argument.

Firstly, this should especially be done where necessary to prevent absurdity from a literal interpretation (as it is submitted discrimination on the grounds of gender prohibited in Art 8(2) of the FC constitutes) [257, 258]. At this point, the underlying disagreements at the root of the judgement are illuminated. The impugned provision amounts to stark discrimination, and produces an absurd result contrary to Kamaludin JCA’s judgment [32]. Therefore, an organic interpretation is crucial in reading the Constitution in light of “present social conditions” and as a “living instrument” to avoid said absurdity [255, 267].

Secondly, the Malaysian judiciary has shown willingness to depart from a literalist approach such as in their interpretation of the word “parent” in Art 12(4) of the FC as meaning “parents” (Indira Gandhi a/p Mutho v Pengarah Jabatan Agama Islam Perak & Ors and other appeals [2018] 1 MLJ 545). While the majority fairly remark that this concerned a separate provision in the FC, it does not take away from the thrust of the argument: the court is interpreting and not rewriting the constitution when it alters the literal meaning of words in the constitution if necessary.

Third, in the specific context of Malaysia where the executive and legislature are invariably fused, the “only safeguard” against the “overlapping of powers” is the “powers vested in the Judiciary  …. that will uphold justice and the spirit of Federal Constitution which is the supreme law of the land” [28, High Court Judgment]. This accords with current Malaysian caselaw that establishes that constitutional supremacy prevails over Parliamentary sovereignty in Malaysia and that judges are the “guardian of the FC” (Nallini FCJ at [117] in Dhinesh a/l Tanaphll v Lembaga Pencegahan Jenayah & Ors [2022] 3 MLJ 356). While parliamentary sovereignty is not explicitly at issue in the current proceedings, the judiciary has acknowledged that they must play a more active role in the constitutional system to safeguard the coherency and identity of the Federal Constitution in modern Malaysia.

(ii) The majority suggests that provisions concerning fundamental liberties and other provisions in the FC are of equal standing and therefore Art 8 should not be given primacy [104].

Recent Malaysian caselaw has established that the “all-pervading” influence of provisions to do with fundamental rights must be taken into account when interpreting any provisions of the FC (Alma Nudo Atenza v Public Prosecutor and another appeal [2019] 4 MLJ 1 at [117]). In any case, an organic interpretation does not require primacy given to Art 8. The fact that Parliament should have made it “clear and unequivocal” that they intended to allow gender discrimination to persist when putting into force Art 8(2) of the FC does not rely on a primacy of Art 8 [270].


Hence, if it is then established that a harmonious interpretation is required, one has only to follow Nantha Balan JCA’s prescription that this would entail a “harmonious” reading “to ensure there is no discrimination between a mother and father in their capacity to pass on their citizenship status to their children” [257].

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