The Kuala Lumpur High Court on 10.2.2022 declared that a person, who was born in Malaysia to a Malaysian father and a non-Malaysian mother who were not married at the time of birth, is a citizen by operation of law. Our Ms Jasmine Wong and Ms Rachel Ng successfully represented 24-year-old Ridzuwan Mohammad Napolean (“Plaintiff”) who had been refused citizenship by the Malaysian authorities and who had been left stateless in the East Malaysian state of Sarawak.
The relevant facts of this case are as follows:
- The Plaintiff was born in Malaysia;
- The Plaintiff was born out of wedlock. The Plaintiff’s parents subsequently registered their marriage after the Plaintiff’s birth;
- The Plaintiff’s father is a Malaysian citizen;
- The Plaintiff’s mother is an Indonesian citizen;
- The Plaintiff had obtained confirmation from the Indonesian Embassy that the Plaintiff’s details are not found or shown in their database of Indonesian citizens; and
- The Plaintiff has a younger sister who is a Malaysian citizen.
The main issue in this case was whether the Plaintiff, who was born in Malaysia to a Malaysian father and a non-Malaysian mother who were not married at the time of birth, is a citizen by operation of law.
On 11.6.2021, the Plaintiff 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(a) and Section 1(e) read with Section 2(3) Second Schedule of the Federal Constitution:
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:
(a) every person born within the Federation of whose parents one at least is at the time of the birth either a citizen or permanently resident in the Federation; and
(e) every person born within the Federation who is not born a citizen of any country otherwise than by virtue of this paragraph.
2(3) For the purposes of paragraph (e) of section 1 a person is to be treated as having at birth any citizenship which he acquires within one year afterwards by virtue of any provisions corresponding to paragraph (c) of that section or otherwise.
Submissions in the High Court
The case was heard on 10.2.2022 at the Kuala Lumpur High Court. During the Hearing, our Ms Jasmine Wong, on behalf of the Plaintiff, submitted that the Federal Constitution was drafted to prevent statelessness in Malaysia. If it is shown that the Plaintiff did not acquire citizenship of any country, the Plaintiff would be rendered stateless and that would be contrary to the intention of Parliament.
Further, based on our legislative history, the Parliament had intended for a person to be a citizen if either one of his parents is a citizen. The Parliament did not intend to differentiate between a father and a mother, nor did Parliament intend for a person’s right to citizenship to be affected by the parents’ marital status.
Ms Jasmine further submitted for the Plaintiff that he has a sister who is a Malaysian citizen. The Defendants’ conduct in registering the Plaintiff as a non-citizen is a violation of the Plaintiff’s right to equal treatment under Article 8 and the Plaintiff’s right to life under Article 5 of the Federal Constitution.
The Director General of National Registration Department, Minister of Home Affairs and the Government of Malaysia were cited as the Defendants. The Defendants, represented by Federal Counsel Liyana binti Muhammad Fuad, addressed the Court that pursuant to Section 17 Part II of the Federal Constitution and the decision of the Federal Court in CTEB & Anor v Ketua Pengarah Pendaftaran Negara, Malaysia & Ors, Section 17 should apply as the Plaintiff is an illegitimate person. Any references to the Plaintiff’s “parent” should refer to the Plaintiff’s mother. Since the Plaintiff’s mother is an Indonesian citizen, Plaintiff’s citizenship status ought to follow his mother.
On 10.2.2022, the learned High Court Judge, YA Datuk Noorin binti Badaruddin, delivered her decision and allowed the Plaintiff’s originating summons. The High Court further ordered the Defendants to update the Plaintiff’s records in the Central Register Record of Birth of the State of Sarawak to reflect the Plaintiff’s status as a Malaysian citizen and to issue the Plaintiff with a MyKad. The High Court declared the Plaintiff as a Malaysian citizen by operation of law by virtue of (i) his birth in Malaysia pursuant to Section 1(e) Second Schedule FC and (ii) the Plaintiff being born to a father who is a Malaysian citizen at the time of his birth pursuant to Section 1(a) Second Schedule FC.
This decision is a positive change in the development of Malaysian citizenship law. Our lawyers at MahWengKwai & Associates take the position that a person’s right to citizenship is linked to his/her right to life and equality. We welcome this High Court decision which recognises the right of an individual to be a citizen by operation of law as long as the person was born in Malaysia and the person was born to at least one parent who is a Malaysian citizen. With this decision, the Plaintiff is no longer stateless and his right to citizenship is protected. This is consistent with the intention of the drafters of our Federal Constitution.
This article has been prepared and published with the consent of the Plaintiff.
By Rachel Ng
(Edited 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.