The Temporal Lottery of Belonging: Addressing the Non-Retroactive Nature of Malaysia’s Constitution (Amendment) Bill 2024

Author: Sarisha Harikrishna

July 7, 2026

Malaysian mothers and their children holding up placards with the words ‘Saya Juga Anak Malaysia’ (I am also a child of Malaysia) [Image credit: Family Frontiers via Al Jazeera]

Introduction: A History of Struggle and Reclamation of Dignity

After over 450 years of foreign colonial rule by various nations including the United Kingdom, Portugal, Japan, and the Netherlands, Malaysia’s fight for sovereignty  succeeded on August 31, 1957. After achieving independence, Malaysia created the Malaysian Federal Constitution, which established a constitutional monarchy and parliamentary democracy. 

The Malaysian Federal Constitution is a document that embodies what many regard as the foundational promise of a newly sovereign people, which is that citizenship, rights, and protections would be extended without arbitrary discrimination. It has been amended multiple times to reflect the changing values of society. Beyond its key provisions, which ensure that fundamental freedoms  (e.g., the right to life and liberty, the freedom of movement, and the freedom of speech) are safeguarded, the constitution also ensures the unfettered right of children born to Malaysian parents to acquire Malaysian citizenship. 

Historically, Malaysian citizenship, which is governed by Part II of the Federal Constitution, is acquired through four recognized means: via the operation of law (Article 14 of the Federal Constitution), by registration (Articles 15-18), via naturalization (Article 19), and through the incorporation of territory (Article 22). Although interpretations of what it means to be Malaysian varies from person to person, with scholars debating whether a Malaysian is identified by blood and  cultural immersion, under the eyes of the law a Malaysian is  an individual who possesses Malaysian citizenship. The advantages that come with holding Malaysian citizenship, as opposed to being a non-citizen resident such as a permanent resident, are undeniable, such as access to affordable public healthcare and education, along with the unrestricted right to live and work in the country. 

In recent years changes were implemented to achieve equity and advance women’s rights. One such provision affords Malaysian citizenship to children born overseas to Malaysian fathers, but not Malaysian mothers. So, a Malaysian father could live anywhere in the world and still pass his Malay citizenship on to his children, but a Malaysian mother’s right to pass down citizenship dissipates outside Malaysia’s recognized borders. 

This requirement sparked heated debate, with rights groups advocating for radical change to what determines whether a child has the right to citizenship. This article argues that while the Constitution (Amendment) Bill 2024 marks a significant step toward gender equality in Malaysian citizenship law, its non-retroactive application creates a new injustice, which is a temporal lottery that grants citizenship to children born after the 1st of June 2026, while denying it to those born just days earlier. The question at the heart of this analysis is whether such a compromise truly serves justice, or is merely administrative convenience. 

A Timeline of Change: Addressing The Patrilineal Ghost of the Federal Constitution

The change that finally led to the amendment granting Malaysian mothers the ability to pass down their citizenship to their overseas-born children happened slowly, largely driven by these mothers’ courage after being exasperated by government and parliamentary inaction. In 2020, the advocacy group Family Frontiers and six Malaysian mothers filed a lawsuit challenging the government  to amend Section 1(b) and Section 1(c) of Part II of the Second Schedule of the Malaysian Constitution, which allowed Malaysian fathers but not mothers to automatically confer citizenship on overseas-born children.

 In 2021 the High Court in Kuala Lumpur, Malaysia’s capital city, delivered a landmark judgment interpreting the original wording of ‘father’ in the provision to also include ‘mother’. The case of Suraini Kempe & Ors v the Government of Malaysia & Ors saw the courts apply a holistic interpretation of the provision in tandem with Article 8(1) of the Constitution which guaranteed equality before the law. 

Under the old rule, a Malaysian father could pass citizenship to a child born in Singapore or Bangkok, but a Malaysian mother giving birth in the exact same city could not, leaving her child stateless, unable to attend Malaysian public schools, access healthcare, or even legally reside with her. This allowed Malaysian women to pass on their citizenship to their children born on overseas soil, effectively dismantling a 60-year-old discriminatory barrier, illustrating the power of ‘living constitutionalism’, the idea that a nation’s founding document must evolve to reflect modern standards of gender equality rather than being tied to the patriarchal biases that existed in 1957. 

The government’s lawyers argued that the matter was one of policy and thus should fall under the ambit of the ‘separation of powers’ doctrine. But the court rejected this position, emphasizing that the contested provision should be interpreted with its underlying historical and philosophical context in mind. However, the happiness and certainty of automatic citizenship conferral brought by this initial judgment was short-lived, as the Court of Appeals in August 2022 overturned the courts’ ruling and stated that only the government has the power to alter the fundamental criteria for citizenship, a decision that was criticized by constitutional scholars as prioritizing a narrow and originalist interpretation of the text over the human rights of Malaysian families. For example, forcing mothers of stateless children to continue applying for discretionary immigration permits rather than enjoying automatic citizenship by law. 

In 2023, the Madani government which is  spearheaded by Prime Minister Dato’ Seri Anwar Ibrahim, pledged to resolve the issue of birthright citizenship in Malaysia by choosing to amend the Federal Constitution itself; this occurred in mid-October 2024, when the Dewan Rakyat (the Malaysian House of Representatives), passed Constitution (Amendment) Bill 2024. Following the support garnered by two-thirds of the Members of Parliament, the bill was passed by the Dewan Negara (the Senate), with full enforcement expected in early June 2026. 

Despite offering relief to future generations of Malaysian children, constitutional lawyers and legal scholars have questioned the non-retrospective nature of the Constitutional amendment. Since the amendment does not offer the same privileges to children born before its effective date, a limitation that opposition Members of Parliament including Ramkarpal Singh have raised during parliamentary debates, only to be met with the Home Ministry’s assertion that retroactivity would ‘open the floodgates’, has justice truly been achieved? Or is this more of a calculated compromise that prioritizes administrative convenience over restorative efforts for the hundreds of thousands of families whose overseas-born children remain stateless simply because they were born a year too early?

Unpacking the Non-Retroactive Nature of the Newly Announced Amendment

The issue of whether legislation can apply retroactively, meaning that it applies  to matters that occurred  before its enactment, has garnered significant attention. Proponents of the argument against the amendment feel that, in certain circumstances (such as when an archaic law has caused systemic citizenship injustices), retroactive reform is essential to rectify these historical wrongs and restore vested rights to those unfairly excluded. 

In March 2025, the Federal Court permitted a settlement that grants automatic citizenship to overseas-born children of Malaysian mothers under the age of 18 but not to those 18 or older. This rigid age-based cutoff is inhumane in practice as a 17-year-old receives citizenship while their 19-year-old sibling, born to the same mother in the same foreign country, remains stateless, unable to work legally, access healthcare, or reside in Malaysia without renewable visas. The settlement was permitted as a political compromise following sustained pushback to the government’s 2023 constitutional amendment, which had proposed granting citizenship only to future births with no retroactive relief. Facing pressure from civil society groups and parliamentary opposition, the government agreed to this partial measure to avoid a definitive Federal Court ruling that could have ended all legal avenues for affected families. Yet, by excluding adults who have endured statelessness for decades, the settlement prioritizes administrative convenience over true restorative justice. 

Turning to the plight of Malaysian women residing overseas with their children who are currently trapped in an abusive marriage, most of whom would endure the torture of abuse if it means that their children can stay with them or avoid being separated from them due to their lack of legal status in Malaysia. The current legal framework, if allowed to operate non-retroactively, risks entrenching a mother in the same cycle of abuse that she is trying desperately to escape from as it becomes much easier for the foreign father to leverage the child’s predicament to gain full custody in a foreign court, effectively granting him coercive control. Furthermore, the argument that making the law retroactive would pose an unpredictable logistical hurdle holds little merit not because the affected class is merely ‘specific and defined’, but because the actual number of individuals is relatively small and finite. Unlike an open-ended or future-only provision that could theoretically apply to an unlimited number of unknown births, retroactive coverage would apply only to children born to Malaysian mothers abroad between 1957 and the amendment’s effective date. The logistical challenges such as obtaining and authenticating overseas birth certificates are real, but they are solvable with dedicated administrative resources, inter-agency cooperation, and reasonable documentary accommodations for stateless individuals who may lack formal records through no fault of their own. 

Identity Crisis and Psychological Trauma Due to Exclusion

Children who have been denied citizenship suffer from potentially lifelong ramifications that extend far beyond legal status. Denied access to public education, a stateless child cannot enroll in Malaysian schools without paying exorbitant international fees, if they can enroll at all. Denied healthcare, a mother cannot register her child at government clinics, forcing families into medical debt. Denied the ability to work legally, an adult who has lived their entire life in Malaysia cannot open a bank account, sign a lease, or obtain a driver’s license. Denied a sense of belonging, these individuals grow up learning that their own country considers them permanent outsiders, a psychological burden that manifests in anxiety, depression, and a fractured identity.  The long-term impacts of this form of ‘othering’ is well-documented and profound, often manifesting as chronic legal anxiety and fear that renewing a temporary visa will be denied for arbitrary reasons and that their own children will inherit the same statelessness.. 

What emerges from this decade-long struggle is a sobering truth that legal change and justice are not always the same thing. The constitutional amendment of 2024 and the Federal Court settlement of 2025 have dismantled a 60-year-old discriminatory barrier for some. But by drawing arbitrary lines at the date of birth and the age of 18, the government has transformed what should have been a remedy into a rationing exercise. The documented fears of stateless individuals, such as deportation and separation from family does not vanish when a child turns 19. They persist, often intensifying as adulthood brings about questions regarding employment and property ownership. Until Parliament answers that question with retroactive relief, Malaysia’s citizenship law will remain a testament not to equality achieved, but to compromise chosen over justice. 

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Glossary

• Ambit: The range or limits of the influence of something.

• Arbitrary: Something that is not planned or chosen for a particular reason, is not based on reason or evidence, or is done without concern for what is fair or right.

• Discretionary: Able to be decided by a particular person or group in a particular situation, rather than being controlled by rules or being the same for everyone; relating to the power to make these decisions. 

• Living constitutionalism: A theory of legal and constitutional interpretation which posits that a constitution’s meaning should dynamically adapt over time to reflect evolving societal values, circumstances, and moral standards, rather than remaining strictly bound to the original intentions or fixed meaning of its drafters. 

• Naturalization: The legal process through which a foreign national voluntarily acquires the citizenship or nationality of another country. 

• Non-retroactive (non-restrospective): A fundamental legal principle that laws, regulations, and judicial decisions only apply to events and actions occurring after their enactment. 

• Patrilineal: A system of tracing ancestral descent through the paternal line, meaning lineage is based on relationships through the father. 

• Restorative justice: An approach to crime and conflict that focuses on repairing the harm caused by wrongdoing.

• Separation of powers: A constitutional principle that divides state responsibilities into distinct branches, the legislature, the executive and the judiciary, to prevent the concentration of power and safeguard against tyranny. 

• Stateless: Not being recognized as a citizen or national by any country under the operation of its laws

• Originalist interpretation: A legal philosophy that dictates historical texts must be interpreted based on the common meaning of their words and phrases at the time they were adopted. 

• Othering: The act of treating a person or group as intrinsically different from, and inferior to, a dominant social norm.