On 4.2.2021, the Federal Court had the opportunity to consider arguments on the interpretation of Section 1(b) of the Second Schedule of the Federal Constitution which concerns a person’s right to citizenship by operation of law if he/she was born outside of Malaysia to a father who is a citizen at the time of birth. Our Jasmine Wong held a watching brief during the appeal in the Federal Court on 4.2.2021.
The child, B (“Child”), was born on 27.10.2010 in the Philippines. The Child was born to a father who is a citizen of Malaysia and a mother who is a citizen of the Philippines. The Child’s parents subsequently registered their marriage in Malaysia on 22.2.2011, approximately 4 months after the Child’s birth. As the Child was born out of lawful wedlock, the National Registration Department (“NRD”), who was named as the 1st Respondent, registered the Child as a “non-citizen” on his birth certificate.
Sometime in 2011, the Child applied to the NRD to be registered as a citizen pursuant to Article 15A of the Federal Constitution. However, the Ministry of Home Affairs, who was cited as the 2nd Respondent, rejected the Child’s application without stating any reasons.
On 11.11.2016, the Child filed a suit in the High Court to obtain a declaration of citizenship by operation of law pursuant to Article 14(1)(b) read with Part II Section 1(b) of the Second Schedule of the Federal Constitution (“Section 1(b) Second Schedule FC”).
Section 1(b) Second Schedule FC reads as follows:-
Part II Second Schedule
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 …
On 23.8.2017, the High Court dismissed the Child’s suit on the ground that the Child was illegitimate at the time of his birth and therefore his citizenship would follow the citizenship of his mother (as opposed to the citizenship of his putative father).
The Child appealed to the Court of Appeal against the decision. During the hearing in the Court of Appeal, it was argued on behalf of the Child that the Child’s birth was legitimised by virtue of the subsequent marriage of the Child’s parents. The arguments centered on the Child’s legitimacy and its effect on the Child’s right to citizenship by operation of law.
The appeal was fixed for Decision on 13.11.2018. However, on the day of the Decision, the Respondents informed the Court of Appeal that the Child had entered Malaysia with a Filipino passport. By holding a foreign passport, the Child had voluntarily exercised a right which is given only to the citizens of the Philippines. The Respondents submitted that the Child cannot be recognised as a Malaysian citizen given that Malaysia does not recognise dual citizenship.
On 14.2.2019, the Court of Appeal dismissed the Child’s appeal and affirmed the High Court decision. In agreeing with the Respondents, the Court of Appeal further held that the Child was deprived of his right to Malaysian citizenship by virtue of the Child holding a Filipino passport.
Arguments submitted in the Federal Court
On 15.10.2019, the Federal Court granted leave to appeal to the Federal Court on the following questions:-
1. Whether it is proper to import Part II Section 1(b) of the Second Schedule to the Federal Constitution any other requirements for the citizenship of a child born to a Malaysian father other than those expressly stated in the provision?
2. Whether the words “born outside the Federation” in Part II Section 1(b) of the Second Schedule to the Federal Constitution can properly be read as requiring that the child not hold any other citizenship and/or passport or be stateless to qualify for Malaysian citizenship by operation of law?
3. Whether the fact that the biological parents of the child who were not married to each other at the time of the child’s birth but subsequently marry, disqualifies the child from acquiring Malaysian citizenship by operation of law pursuant to Article 14(1)(b) and Part II Section 1(b) of the Second Schedule of the Federal Constitution?
4. Whether having met the qualifications for citizenship by operation of law under Article 14(1)(b) read together with Part II Section 1(b) of the Second Schedule of the Federal Constitution, can the courts arbitrarily impose further qualifications which are not within the said Article?
During the hearing on 4.2.2021, the Child, who was represented by Dato’ Cyrus Das, Sharmini Thiruchelvam and Francis Pereira, argued that the phrase “at the time of the birth” in Section 1(b) refers to the citizenship status of the Child’s father at the time of the Child’s birth. As it was not disputed that the Child’s father was a Malaysian citizen at the time of the Child’s birth, the Child should be recognised as a Malaysian citizen by operation of law.
It was further argued that the Child was no longer illegitimate by virtue of the subsequent marriage of his parents under the Legitimacy Act 1961. As a legitimate person, the Child would be entitled to rely on his father’s citizenship (see the Court of Appeal’s decision in Madhuvita Janjara Augustin (suing through next friend Margaret Louisa Tan) v Augustin a/l Lourdsamy & Ors  1 MLJ 307). Therefore, it follows that the issue of illegitimacy in Part III Section 17 Second Schedule FC does not arise in construing Section 1(b) Second Schedule FC.
On the issue of the Child being deprived of Malaysian citizenship by virtue of holding a Filipino passport, it was argued on behalf of the Child that the deprivation could not have arisen as the Child’s citizenship status is still unascertained. The process of depriving one’s right to citizenship is not automatic as seen in Article 24 and Article 27 of the Federal Constitution.
In response, the Respondents, represented by Senior Federal Counsel Shamsul Bolhassan and Mazlifah binti Ayob, argued that the Child could not be a Malaysian citizen by operation of law because the Child’s parents were not legally married at the time of his birth and therefore rendering the Child illegitimate. The Child’s citizenship would follow his mother’s citizenship, i.e. a Filipino citizen, pursuant to Section 17 Second Schedule FC. The Respondent further argued that the Child failed to fulfil the cardinal requirements in Section 1(b) Second Schedule FC by virtue of the non-existence of marriage between the Child’s parents.
The panel of 7 Federal Court judges hearing the Child’s appeal has reserved its judgment.
We note that Section 1(b) Second Schedule FC is not qualified with the requirement that the child’s parent’s marriage be registered at the time of the child’s birth.
With the incorporation of the word “gender” in Article 8(2) of the Federal Constitution in 2001, the Federal Constitution no longer permits any discrimination on the ground of gender. In the event the requirement of a registered marriage is read into Section 1(b) Second Schedule FC as held by the Court of Appeal, the end result would lead to a situation where the child’s biological father is discriminated against. A scenario would be created whereby a child’s unmarried Malaysian mother would be able to pass her citizenship to her child born out of Malaysia, as opposed to an unmarried Malaysian father. Such a situation is contrary to the principle of gender equality in Article 8(2) and could not have been envisaged by the drafters of the Constitution in 2001.
We take the position that the Section 1(b) Second Schedule FC should be read at face value by recognising the child’s right to citizenship provided the child’s father is a Malaysian citizen at the time of the child’s birth (regardless of whether the child’s parents were married at the time of the child’s birth). To avoid Section 1(b) Second Schedule FC from becoming discriminatory or run counter to Article 8(2), the word “father” must not be given a narrow and technical construction to mean only a father in lawful marriage. After all, a father’s capacity as a parent is not defined by the registration (or lack thereof) of his marriage.
This case is a reminder of the harsh reality and discrimination faced by children born outside Malaysia and their parents. There are two categories of children born outside Malaysia who may face difficulties in having their right to citizenship recognised. These categories are:
1. Children born outside Malaysia and out of wedlock to a Malaysian father and a non-Malaysian mother; and
2. Children born outside Malaysia to a non-Malaysian father and a Malaysian mother in lawful wedlock.
The arguments on the children’s right to citizenship in the categories above will be covered in further detail in our upcoming article. Please contact us should you require our assistance and further advice on your right to citizenship.
By Jasmine Wong
Note: This article does not constitute legal advice to any specific case. The facts and circumstances of each and every case will differ and therefore will require specific legal advice. Feel free to contact us for complimentary legal consultation.