Harmonious Construction or Judicial Disobedience of Stare Decisis? Suraini Kempe & Ors v Kerajaan Malaysia & Ors

Abstract

In Suraini Kempe & Ors v Kerajaan Malaysia & Ors, the High Court ruled, on a harmonious construction of the relevant constitutional provisions on citizenship and equality before the law, the word ‘father’ in Article 14(1)(b), read together with section 1(c) of Part II of the Second Schedule of the Federal Constitution includes the mother of the children born out of Malaysia, and therefore declared, among others, that children born out of Malaysia, to mothers who are Malaysian citizens, are entitled to citizenship by operation of law if all the procedures to those followed by the father are adhered to. A harmonious construction is one where two provisions of the Constitution bearing upon the same subject are read together and so interpreted as to give meaning and effect to, and not render, the provision of the Constitution as otiose or nugatory. Curiously, the learned judge avoided referring to a recent Federal Court decision which ruled there was no necessity to adopt any other requirement to construe the constitutional provisions. The decision, albeit by a majority, is binding on the learned judge. This case comment argues that the learned judge disregarded and disobeyed the well-entrenched doctrine of stare decisis.