Government of Malaysia v Suriani Kempe brings to the forefront the challenges of balancing certainty and relevance in constitutional interpretation.[1] The constitutional amendment to prohibit gender discrimination purported to keep the Malaysian Federal Constitution (“FC”) aligned with current societal standards. It required the FC to be interpreted purposively and in line with the prohibition of gender discrimination. However, the recent Court of Appeal judgement favoured a literal interpretation of the FC, despite the discriminatory effects for women. This article argues that the Court of Appeal erred in its judgement by failing to give effect to the doctrine of harmonious construction and the broad obligations of the fundamental right to gender equality.
Facts
The plaintiffs were Malaysian mothers who gave birth to a child abroad. The mothers applied for Malaysian citizenship under the discretionary provision of Article 15, FC. Article 15 empowers the Federal Government to grant citizenship to children of Malaysian citizens (“citizenship by registration,” rather than the “citizenship by law” in Article 14). The mothers’ applications were rejected, which meant their children did not have access to state education or medical treatment and faced severe restrictions on travel during the Covid-19 pandemic. The mothers filed an originating summons at the High Court.
The case centred on whether the reference to “father” in Article 14(1)(b), read together with Part II, section 1(1)(d) of the Second Schedule (“the Citizenship Provision”) should be interpreted to include “mother”. The relevant provisions provide:
“1. (1) Subject to the provisions of Part III of this Constitution and anything done thereunder before Malaysia Day, the following persons born before Malaysia Day are citizens by operation of law, that is to say…
(d) every person born outside the Federation on or after Merdeka Day whose father was a citizen at the time of his birth and either was born in the Federation or was at the time of the birth in service under the Government of the Federation or of a State”
[emphasis added]
In summary, the questions before the court were: (1) How should “father” in the Citizenship Provision be interpreted? (2) Does the constitutional right of gender equality place a duty on the court to interpret “father” as the gender-neutral term, “parents”, to avoid discriminating against Malaysian mothers?
High Court’s Decision
The High Court ruled in favour of the plaintiffs. The Court held that the reference to “father” in the Citizenship Provision included “mother” because the Citizenship Provision must reflect the gender equality provision in Article 8(2), FC. The court adopted the “prismatic approach” in Lee Kwan Who v. PP that all of the FC should be interpreted to give effect to the fundamental rights contained in Part II, FC.[2] A literal and pedantic interpretation should not be used because interpretations of the FC must recognise its fundamental underlying principles. The respondent then appealed this decision to the Court of Appeal.
Court of Appeal’s Decision
By a 2-1 majority, Court of Appeal overruled the High Court and held that “father” in s 1(d) of Part II exclusively referred to the father of the child and could not be interpreted as “parents”.
In reaching this conclusion, the Court held that there was only one interpretation of the word “father” in the Citizenship Provision since the use of both “father” and “parents” in the Constitution showed that the two words had purposely distinct meanings.[3] In addition, the citizenship provisions are entrenched because under Article 159(5), FC any amendment to Part III, FC (the citizenship section of the FC) requires the consent of the Conference of Rulers. Therefore, the prohibition on gender discrimination in Article 8(2), FC cannot indirectly amend the Citizenship Provision.
Justice S. Nantha Balan dissented and relied on the Eleventh Schedule, s 2(94), FC (“the Interpretation Provision”). The Interpretation Provision states that words importing the masculine gender should be construed to include females. As a result, Justice Nantha Balan held that “father” has a masculine gender and should be interpreted to include the female equivalent, “mother”.
Analysis
This article argues that: (i) the doctrine of harmonious construction requires the interpretation of “father” as “parent” in line with Article 8(2), FC, and (ii) although citizenship is an entrenched Part of the FC, the change in interpretation does not amend it.
The doctrine of harmonious construction states that if two constructions are possible, the court must adopt the one which will ensure the smooth and harmonious working of the Constitution. Contrary to what the Court of Appeal held, the Citizenship Provision does have two possible constructions since “father” can either be interpreted solely as “father” or in a more gender-neutral light, as “parent”. I submit that the latter option of “parent” is an interpretation created by the amendment to Article 8(2) in 2001 to prohibit discrimination against citizens on the ground of gender, except as “expressly authorized” by the FC. Article 8(2), FC (“the Gender Equality Amendment”) provides:
“Except as expressly authorized by this Constitution, there shall be no discrimination against citizens on the ground only of religion, race, descent, place of birth or gender in any law or in the appointment to any office or employment under a public authority or in the administration of any law relating to the acquisition, holding or disposition of property or the establishing or carrying on of any trade, business, profession, vocation or employment.” [emphasis added]
The law on gender discrimination is somewhat unclear: there have been no other legislative developments for gender discrimination law, so complainants must rely on Article 8(2), FC; there is no agreed definition of “discrimination”; and there is little case law on the effect of the Gender Equality Amendment, with most cases relating to pregnant women in employment. For clarity, His Lordship Justice Abdoolcader’s definition of “discrimination” in Public Prosecutor v Datuk Harun bin Haji Idris & Ors will be adopted - “unfavourable bias” based on the substantive treatment of persons.[4] This article proposes the novel argument that the Gender Equality Amendment changed the interpretation burden of the courts.
The burden created by the Gender Equality Amendment is distinct from the Interpretation Provision relied on by the dissenting Court of Appeal judge, Justice S. Nantha Balan. The Interpretation Provision states that words importing the masculine gender includes females, but this does not apply when the context shows that the masculine gender was intended – a standard which is met by the distinct use of “father” and “parent” in the FC.[5]
However, a higher standard is required for the Gender Equality Amendment to be ignored: it requires “express authorisation” in the Constitution. The different usage of “father” and “parent” is insufficient to amount to “express authorisation”. “Express authorisation” is exemplified through a non-obstante clause, such as Article 161A(5), FC which states that Article 8 shall not invalidate or prohibit any provision of Sabah and Sarawak State law. There is no “express authorisation” for the Citizenship Provision to be applied contrary to the Equality Amendment.
The Citizenship Provision is clearly discriminatory against Malaysian mothers. It gives Malaysian fathers greater citizenship rights than mothers purely on account of gender. The Government failed to provide any justification as to why there should be discrimination against Malaysian mothers in citizenship law. The Government relied on textual formality and the fact that the citizenship system was inherited from the British Empire. There is some weight to the Government’s argument, since in Maria Chin Abdullah v Ketua Pengarah Imigresen, Rahman Sebli FCJ recognised the importance of interpreting the FC in light of its historical context. [6] In that case, the majority held that the historical context and purpose of Article 121, which sets out the judicial power and structure of the courts, empowered the legislature to decide the powers of the courts. However, this is less convincing in the current context where there is no justification for the historical rule. More recently, the UK Supreme Court Justice Lord Sales convincingly recognised the importance of constitutions making incremental changes to evolve alongside public opinion and thereby maintain legitimacy.[7] The absence of justification for the discrimination against Malaysian mothers reinforces the importance of interpreting the Citizenship Provision harmoniously with the Gender Equality Amendment.
To summarise, there are two constructions of the word “father” in the Citizenship Provision. Under the doctrine of harmonious construction, the court must adopt the construction which allows the harmonious working of the FC. In order to be harmonious with the Gender Equality Amendment, the use of “father” in the Citizenship Provision must be interpreted as the gender-neutral term “parent”.
There are two arguments for addressing the Court of Appeal’s ruling that the Citizenship Provision is an entrenched Part of the FC: (1) the Citizenship Provision is Part of the Second Schedule, and therefore does not fall under Part III of the FC; and failing which (2) the change in interpretation caused by the Gender Equality Amendment is not an “amendment” to the Citizenship Provision. I consider both arguments in turn below.
Article 159(5) entrenches Part III by requiring the Conference of Rulers to consent to any changes to Part III. However, Article 159(5) does not entrench the Citizenship Provision because the Citizenship Provision is not in Part III. Instead, it is in Part II, section 1(1)(d) of the Second Schedule. Therefore, the Citizenship Provision does not fall under the special procedure in Article 159(5), and merely follows the usual process of constitutional amendment, as laid out in Article 159(3).
The Court of Appeal argued that the Citizenship Provision is entrenched by Article 159(5) because Part III includes all articles relating to citizenship – as highlighted by the title of Part III being “Citizenship”. The Citizenship Provision is also explicitly referenced by Article 14(1)(b), Part III: “every person… having any of the qualifications specified in Part II of the Second Schedule” is a citizen by operation of law. However, this reference does not move the Citizenship Provision to Part III. Article 160(3) states that “unless the context otherwise requires,” any reference to a specified Part of the FC is a reference to that Part of the FC in which the reference occurs. Therefore, the reference to Part III, FC should be limited exclusively to Part III. The Citizenship Provision is not in Part III and the usual process of constitutional amendment should apply.
Alternatively, Article 159(6) defines “amendment” by way of example as including “addition and repeal” of articles. The doctrine of harmonious construction does not change the text of the FC – it merely changes the interpretation of the existing words of the Construction. Thus, “father” in the Citizenship Provision is not being changed to “parent” as the text will remain the same. Instead, “father” is interpreted as the gender-neutral term “parent”. The change in interpretation does not “amend” the Citizenship Provision and therefore does not need to follow any special constitutional amendment procedure.
Constitutional Interpretation
Notably, the discrepancy in my approach to constitutional interpretation is clear. I have argued for a purposive interpretation of the Citizenship Provision and Equality Amendment but relied on a strict textual approach to address the entrenchment of the Citizenship Provision. Indeed, both my definition of “Part III, FC” and “amendment” are narrow. This difference is grounded in the prioritisation of fundamental rights and the process of constitutional interpretation, as outlined by Chief Justice Tengku Maimun in CCH & Anor. V Pendaftar Besar Bagi Kelahiran Dan Kematian, Malaysia:
“[49] … The starting point is the understanding that fundamental rights and provisions must be construed as broadly as possible. Next, provisions which limit those rights must be construed as narrowly as possible. Finally, judicial precedent must play a lesser part when construing constitutional provisions. One cannot afford to be pedantic or cling helplessly to tabulated legalism.” [8]
Conclusion
Suriani Kempe is an important constitutional case about citizenship law which has broader implications on the application of fundamental rights to the rest of the Constitution. The Court of Appeal relied on a restricted, textual approach to the Citizenship Provision which failed to recognise the importance of fundamental rights. The Federal Court now has the opportunity to highlight the importance and effect of the Gender Equality Amendment on the interpretation of the FC. Thousands of Malaysian women await to see if the Court of Appeal’s decision will be reversed and end the current systematic discrimination against Malaysian mothers.
[1] [2022] 5 MLJ 194 (CA)
[2] [2009] 5 MLJ 301
[3] Lee Lee Cheng v Seow Peng Kwang [1958] 1 LNS 32, Thomas CJ (as he then was): “it is axiomatic that when different words are used in a statute they refer to different things and this is particularly so where the different words are, as here, used repeatedly.”
[4] [1976] 2 MLJ 116
[5] Lee Lee Cheng v Seow Peng Kwang [1958] 1 LNS 32
[6] [2021] 1 MLJ 750
[7] Lord Sales, P. (2022) “Long Waves of Constitutional Principle in the Common Law” [Lecture], Public Law Conference, Dublin. July 2022.
[8] [2022] 1 MLJ 71
