Suriani Kempe (President and office bearer of Persatuan Kebajikan Sokongan Keluarga Selangor & Kuala Lumpur (Family Frontiers)) & Ors v Kerajaan Malaysia & Ors

Parties (including notable third parties)

Plaintiffs: Suriani Kempe - President and office bearer of Persatuan Kebajikan Sokongan Keluarga Selangor & Kuala Lumpur (Family Frontiers), Myra Eliza binti Moh Danil, Adlyn binti Adam Teoh, Vimal Devi a/p Muniappan, Choong Wai Li, Ng Mei Mei, Rekha Sen Mei-Mei; Defendants: Kerajaan Malaysia, Menteri Dalam Negeri, Malaysia, Ketua Pengarah Jabatan Pendaftaran Negara, Malaysia

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Summary of Facts

This was a strike-out application brought the Government of Malaysia in the High Court (heard by Akhtar Tahir J on 27 May 2021). The central issue in this case was whether provisions of the Federal Constitution of Malaysia providing for the acquisition of citizenship were discriminatory and therefore contrary to the guarantee of equality in Article 8(1) of the Constitution.

The Constitution presents a distinction: a child born within the Federation is a citizen by operation of law if at least one parent is a citizen or permanent resident; but for a child born outside the Federation, citizenship by operation of law is tied to the status of the father, not the mother, thereby excluding mothers from an equivalent right in overseas births.

The Plaintiffs sought declarations that Article 14(1)(b), read with Part II of the Second Schedule, were discriminatory and must be construed harmoniously with Article 8 in respect of equality before the law and equal protection so as to recognise the equal transmission of citizenship by operation of law by both mothers and fathers to children born abroad.

The First Plaintiff, Suriani Kempe, sued as President of Family Frontiers, a registered association under the Societies Act 1966, with member‑plaintiffs directly affected by the overseas‑birth citizenship regime.

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Legal Arguments

Legal Arguments by the Plaintiffs

The Plaintiffs argued that the citizenship provisions for children born outside the Federation, which privileged the father’s status, were discriminatory on the ground of gender contrary to Article 8 and should be read harmoniously with Article 14(1)(b) to allow mothers equal transmission of citizenship by operation of law. They contended that a declaratory suit does not require a ‘cause of action’ and that it suffices that they have a legal interest to vindicate constitutional/statutory rights, citing authority such as Tan Sri Haji Othman Saat v Mohamed bin Ismail [1982] 2 MLJ 177.

To establish their locus standi, the Plaintiffs relied on the association’s registration and its mission, and the fact that member‑plaintiffs were directly affected by the laws in question.

Legal Arguments by the Defendants

The Government sought to strike out the Plaintiffs’ originating summons on three grounds under Rules of the Court 2012 O 18 r 19:

1) lack of locus standi, 2) no cause of action; and 3) that the originating summons was frivolous, vexatious, scandalous and an abuse of process. Substantively, the Government argued that the Constitution’s text was clear and that no constitutional provision can be invalidated by another and that all are of equal standing, relying on two case (Loh Kooi Choon v Government of Malaysia [1977] 2 MLJ 187 and Maria Chin Abdullah v Ketua Pengarah Imigresen & Anor [2021] 1 MLJ 750) and that there was no legal expectation at play.

Outcome

On Locus Standi

Applying a discretionary and ‘common sense approach’, the Court held the First Plaintiff had a sufficient interest derived from the association’s registered status and the direct impact on its members and family well‑being.

Cause of Action

The Defendant’s argument that there was no cause of action was said to stem from ‘the belief that the clear words of the constitution leave no room to the court to make any further construction to the meaning of the wordings’ (paragraph 20). This was said to be ‘a clear misnomer and belittles the role of the court’ (paragraph 21). The Court accepted that a declaratory claim does not require a cause of action; the Plaintiffs had an interest and right to safeguard their statutory/constitutional rights.

On the Claim as Frivolous, Vexatious, Scandalous and an Abuse of Process

The Court observed that while provisions may be of equal status, the Constitution must be read holistically, with effect given to all its parts rather than treating each article in isolation. Fundamental liberties, especially the right to equality, are of universal application and may, where necessary, prevail in resolving tensions. The law must also be applied consistently within the same statutory scheme; yet, in the citizenship context, there appears to be inconsistent treatment between children born within the Federation and those born outside it. It was said that the Defendant must ‘show justifications to convince the court of the necessity to maintain the distinctions between a child born in the Federation and the child born out of the Federation’ (paragraph 33).

Outcome

The Court found it was not appropriate to summarily dismiss the case under O 18 r 19 without proper evidential evaluation. The Court held that the burden lay with the Government to justify the apparent distinctions between fathers and mothers in the overseas‑birth provisions. The strike‑out application was dismissed, and the claim could proceed on the merits.

Note that this was an interlocutory decision. The primary High Court decision is [2021] 8 CLJ 666 which was then overturned by the Court of Appeal in [2022] MLJU 1803.

International, Regional and Domestic Instruments and Provisions Cited

Source	Instrument name	Provisions cited
Domestic	Federal Constitution	Article 14(1)(b), Article 8, Part II of the Second Schedule

UNHCR Statelessness Guidelines cited

This case does not cite UNHCR Statelessness Guidelines.

Available commentary

Note that there is no commentary considering this strike-out decision specifically. The below articles consider the decision history following the final appeal outcome.

Nur Huda Diyanah binti Amir Hamzah, Sharifah Aishah Alhabshi binti Syed Abdul Rahman and Nabeel Mahdi Althabhawi, ‘Gendered Citizenship: Should There Be A Link Between Gender and Citizenship?’ [2022] 1 Legal Network Series (A) xxxix

• The authors argue that modern feminist and Islamic jurisprudence demand equality in citizenship laws. They argue that the idea of equality pervades the Islamic way of life and is enforced in Islam, although some have used Quranic interpretations to support the notion that citizenship is passed on through paternal blood.
• The authors argue that a purposive approach was used by the High Court in Suriani Kempe to produce the argument that the legislature did not intend to discriminate mothers in granting citizenship to their overseas born children. The advocate for a veil of ignorance regarding identity being applied to the conferral of citizenship.

Rodziana Mohamed Razali and Chin Chin Sia, ‘Towards Equitable, Transparent and Evidence-Based Malaysian Citizenship Law Amendments: Taking Stock of Remaining Risks Of Statelessness and Exclusion’ (2024) 6(2) Statelessness & Citizenship Review 2023

• The authors argue that Malaysian citizenship law is patriarchal and that the legislature has a duty to remove uncertainty for Malaysian mothers overseas. They point out how children born overseas to Malaysian mothers face particular disadvantages in education, property ownership, health care and employment
• The authors compare the Malaysian citizenship system with that of Singapore, which is effectively gender neutral. They argue that the Malaysian Constitution requires amendments to enable equality and avoid statelessness, and that Malaysia should follow the Singaporean approach.

Anis Farid et al, 'Negotiating Ideations: The Role of State-Led Identity-Making in the Progress of Women's Rights in Malaysia' (2022) 23(2) Australian Journal of Asian Law 9

• This article traces the evolution of women’s rights in Malaysia through law reform from 2017-2022, arguing that they have largely improved due to a social context enabling actors to advocate for reform.
• The article notes that Malaysian state institutions, being implemented under British colonialism, often by men, enabled the entrenchment of patriarchal values. It also points to the centrality of conservative interpretations of Islam in reducing women’s participation in public life.
• The article suggests that significant reform in certain areas have not progressed due to incongruence with dominant perceptions of state identity, whereas reforms have been achieved in other areas. It argues that the High Court’s decision in Suriani Kempe reflects how Courts can reimagine state identity and renegotiate community boundaries. It argues in favour of a ‘transformative equality approach’ to restructure institutions, and consequently society, in favour of equality.