OVERSIMPLIFIED CASE REVIEW: SURAINI KEMPE & ORS v. KERAJAAN MALAYSIA & ORS

 CASE REVIEW ON CONSTITUTIONAL LAW

SURAINI KEMPE & ORS v. KERAJAAN MALAYSIA & ORS

HIGH COURT MALAYA, KUALA LUMPUR

AKHTAR TAHIR J

[ORIGINATING SUMMONS NO: WA-24NCVC-2356-12-2020]

27 SEPTEMBER 2021

[2021] CLJ JT(12)

In Physics; Dispersion of Light by Prism
In Legal Terms; Prismatic Interpretive Approach

BACKGROUND FACTS 

The President of the Association of Family Support & Welfare Selangor & Kuala Lumpur (Family Frontiers) is the first plaintiff, followed by mothers who are Malaysian citizens are second to the seventh plaintiff. The defendants consisted of the Government of Malaysia, the Minister of Home Affairs and the Director-General of the National Registration Department. 

The case is about the plaintiff seeking a declaration on the impugned law regarding children born out of the Federation, to mothers who are Malaysian citizens, to be conferred citizenship by operation of law. Registration Department. 

The said impugned law refers to art. 14(1)(b), read together with the Second Schedule in s. 1(c) of Part II of the Federal Constitution (‘FC’). 

1. 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:

(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;

ISSUES 

Plaintiff argued that;

1. The (‘impugned provision’), is discriminatory towards mothers who are Malaysian citizens whose children are born out of the Federation; 
2. The impugned provision only confers citizenship to children born out of the Federation to fathers who are Malaysian citizens; and 
3. The impugned provision ought to be read harmoniously with art. 8 of the FC, which guarantees the fundamental rights of equality to all persons before the law.

Defendant argued that;

1. The plaintiffs had neither locus nor any legitimate expectation for the citizenship of their children as the persons aggrieved were the children and not the mothers;
2. The court had no jurisdiction to hear the matter; and
3. The issues were non-justiciable.

Thus the issues before the court are; 

(i) Whether there is locus for the plaintiffs;

(ii) Whether the court has jurisdiction and the issues are justiciable;

(iii) Whether it is a proper application of the impugned provision.

HOLDINGS

(I) The court ruled that ALL the plaintiffs had locus to file this OS. The plaintiffs, as mothers, value Malaysian citizenship and are loyal to the country. the discrimination against the mothers was apparent. The grievances faced by the plaintiffs were real and not imaginary.

• Application for citizenship for her child under art. 15(2)
• Rejected with no reasons after two years by the Registration Department of Malaysia (Jabatan Pedaftaran Negara)
• Deprived of the privileges of the children who are citizens which includes education, healthcare, travel apart from mental suffering. These hardships have been compounded during the pandemic where there is a restriction on travel.
• Loss of custody of her child from the foreign national husband when 'separated'
• Detainment of children born in Thailand and questions about the difference in citizenship between her and her children by the immigration authorities 

The realities are of loyal mothers as Malaysian citizens, which initiated to file this Originating Summon, OS and thus have locus upon them. 

(ii)  On the argument of art 15 by the defendant, the court held that This exercise of discretion by the Minister is not subject to review by the court. However, the granting of citizenship by operation of law falls under art. 14 of the FC. The court was not seeking to change the policy or rewrite the law which has already been enacted by the Federal Government. The court was endeavouring was to apply the existing law and policy already in force in a manner that would find a remedy to the grievances of the plaintiffs. Thus, the court was surely empowered to do. 

(iii) The word ‘father’ in the impugned provision includes the mother and, therefore, the children of the second to seventh plaintiffs, and all other women similarly circumstanced, are entitled to citizenship by operation of law if all the procedures to those followed by the father are adhered to. This is because, when reflecting back to the extracts of the Hansard, the focus of the debate was whether citizenship should be given or not to children born out of the Federation. The sentiment in the debate was to give citizenship based on loyalty, allegiance and attachment to the country.

CONCLUSIONS 

Better this way; 

[2021] 9 CLJ, Page 992

PERSONAL COMMENTS

It is delightful to see, at least the High Court judges are not attached to the literal and pedantic meaning of written law, there are certain sitting to the edge moments and bursting into laugh moments while reading the case even after two months the case has been heard. 

In Para 39, "Further, if the literal approach as suggested by the defendants is to be adopted, the court’s role will be downgraded to rubberstamping the provision as enacted without actually addressing the mind to the actual purpose the provision was enacted or applying the provision in a fair and just manner." How true is such statements, judiciary's power is vested in interpreting the law. 

In Para 41, "If the defendants’ approach of interpretation were to be adopted, the Federal Constitution will be converted into a patchwork of disjointed provisions. This is clearly not the intention of the drafters of the Federal Constitution. The Federal Constitution is crafted and drafted in such an organised manner even in the numbering and placement of the various articles that the Federal Constitution that it is meant to be applied and interpreted in an orderly and harmonious manner."

These two paragraphs are sufficient to read the mind of the panel in writing the judgement, here his lordship has written in mind of organic theories from NS Bindra's Interpretation of Statutes (10th ed). It is essential to stress when solving issues of this era to be reflected with a historical and philosophical view along with to be resolved with current difficulties. 

His lordship also has raised a question is the apex court can rule that children born out of illegitimate liaisons are to follow the citizenship of the mother, does this mean children born out of these illegitimate liaisons out of the Federation will be granted automatic citizenship following the citizenship of the mother?

This is a great question to ponder and as he has also mentioned, This will give rise to ignominy that the rights of children born of illegitimate liaisons are above those born out of legitimate liaisons.

In the end of the day, the judge has stood in a position to interpret the law, the absolute and ideal function of the judiciary department. He also cracked some jokes on the defendant by quoting Montesquieu, the ratification of international treaties by Malaysia, and highly stressing on the organic theory, I would have done the same if I am in his position. Thus, I obey and stand by his judgement. 

In reality, this is a case of High Court, the plaintiff can always appeal to apex court, infact, the Director General of the NationalRegistration Department affirmed that anything to be said would be argued by the Federal Counsel in open court. 

I am not a big fan of the Apex court because the panel mostly rely on the Pedantic and Literal approach as they had no powers to condemn the dry old, otise, nugatory law.

Thanks for reading.