Written by: Averroes
(1.0) Introduction;
On the 28th May, the Federal Court in Putrajaya ruled that a 10-year-old boy who has a Malaysian father and a Filipino mother could not get Malaysian citizenship. The identity of the boy is kept a secret by order of the court. The child only had a Filipino passport.
There was a narrow verdict which 4-3 judges, where the 4 majority judges among them including judge Rohana Yusof said that the appeal was dismissed. The verdict was delivered through a virtual meeting on Zoom, due to the covid-19 pandemic.
(1.1) Facts;
The boy was born in 2010 in the Philippines and was brought to Malaysia by his Filipino mother. His mother only legally married his 55-year-old Malaysian father on February 2011, five months after he was born. The family now lives in Malaysia.
According to DNA testing, it is confirmed that the 55-year old man is the biological father of the child. The custody and control of the child is under the parents. Later, to apply for Malaysian citizenship, it was not approved on September 2012 for no valid reason.
This led to the parents filing an originating summons at the High Court in 2016, with the director-general of the National Registration Department (NRD), the secretary-general of the home ministry and the Malaysian government as the defendants.
What they sought was for a declaration that their child is a Malaysian citizen and wanted the authorities to register him as a Malaysian citizen.
(2.0) Legal Analysis;
(2.1) High Court;
Chronologically, when the originating summons was filed, as of 23rd August 2017, the High Court dismissed the suit as the child could not have Malaysian citizenship by operation of law, because when he was born, his mother was not a Malaysian citizen.
(2.2) Court of Appeal;
The appeal was dismissed on 14th February 2019. Hence, the parents obtained leave to the Federal Court on 14th October, 2019 on four legal questions to be determined by the court. The parents legally registered their marriage in Malaysia under the Law Reform (Marriage and Divorce) Act 1976.
The child was correctly presumed to be a citizen of the Philippines. The citizenship by operation of law must be determined at birth, not after that. Even when there was a marriage and the child was legitimized after that, it does not allow the child for citizenship.
(2.3) Federal Court;
(2.3.1) Decision of Judges;
Majority:
According to her ladyship, Tan Sri Rohana Yusof (also the President of Court of Appeal), the appeal was dismissed because the boy was an illegitimate child at birth, since his parents were only married five months later.
Quoting her, her ladyship enunciated;
"I am in full agreement with both the High Court and the Court of Appeal does not meet the requisite criteria stipulated pursuant to article 14(1)(b) of the Federal Constitution read together with Section 1(b) of Part II of the Second Schedule and Section 17 Part III of the Second Schedule to be declared a citizen by operation of law, properly construed."
"Since section 17 Part III of the Second Schedule defines father as referring to mother, in a case of an illegitimate child, the child's citizenship cannot follow that of his father. The appeal is dismissed and the decisions by both courts are affirmed."
Moreover, she clarifies that touching on the provision of equality under article 8, she added that it was beyond the jurisdiction of the court, as discrimination was permitted.
Even if discriminatory, it is not for the court to amend that section 17, since the power to amend the Federal Constitution lies in the Parliament as under article 159 of the Federal Constitution and following the doctrine of separation of powers.
Regardless of popular choice, the function of the Court is always to uphold and interpret the clear wordings of the Federal Constitution. It cannot be affected by how unpopular or how many dislikes it has.
Moreover, article 24 of the Federal Constitution was irrelevant since the child was not a Malaysian citizenship to begin with, in regards to deprivation.
Agreeing with Rohana Yusof were judges Vernon Ong, Zabariah Mohd Yusof and Hasnah Mohammed Hashim. Altogether were the 4 majority judges.
Minority:
However, the remaining 3 judges, Chief Justice Tengku Maimun Tuan Mat, judges Nallini Pathmanathan and Mary Lim Thiam Suan disagreed.
Tengku Maimun Tuan Mat said that the fundamental liberties are always evolving and that refusing citizenship was discriminatory. It countered article 8(1) of the Federal Constitution for equality. Her ladyship added, the citizenship of the child could be determined by the mother only if the identity of the father was unknown.
However, the father was already known, especially since he is the biological father. Furthermore, Nalini said that the majority said that only motherhood gave citizenship of a child. not the father. There is no need to apply supplementary and enabling provisions.
Looking at the purposive cannons on construction as borne, the word father in section 1(b) of Part II and anywhere else connotes that to of biological father. Thus, legitimacy would be irrelevant. When reading article 14(1)(b) and section 1(b) of Part II, since the requirements of;
(i) Paternity is known
(ii) The paternity (biological father) is of Malaysian citizen
Hence, there is no need to look at the illegitimacy provisions. The paternity which is proven through scientific methods and the citizenship of the father as Malaysian is undisputed. This would defy the notion of jus sanguinis, which is not determined by law.
Criticisms:
What transpires is that, there is discrimination, since article 14(1) read with section 17 of the Third Schedule differentiates between a person's status of legitimacy based on their parent's matrimonial status.
A child born out of wedlock could not qualify for jus soli or jus sanguine for citizenship under the Federal Constitution. Moreover, it is also gender-biased since, only the mother carries the burden for illegitimacy.
This also discriminates the father, since he has Malaysian citizenship, he could not have his child be registered as Malaysian by operation of law. It would mean that the father is non-existent and the paternity is outright ignored and only focuses on the illegitimacy.
Even with the DNA testing, the illegitimacy overpowers the biological evidence. This leads to absurdity.
However, her ladyship Rohana did suggest that to apply child's status, he could do so under article 15(2) of the Federal Constitution to gain citizenship, which a step that requires special approval directly from the federal government.
The Philippine passport does not disbar him for attaining Malaysian citizenship. However, the Joint Action Group for Gender Equality (JAG) lamented the court's suggestion. The process under article 15(2) is uncertain and prolonged. There were 34,286 citizenship applications for children below 21, between 2013 to 2019 alone from the NRD statistics. The success rate is only at 3%.
JAG also said that the verdict was a grave violation to article 8 of the Federal Constitution. The misinterpretation of article 8(2) undermines the very basis upon which it was created that was to prevent discrimination. Thus, the verdict came with a very narrow interpretation.
JAG commented, "We also believe that the right to nationality is very closely bound to the right to life and liberty as it permeates all parts of a child's reality including access to education, healthcare and security."
Furthermore, the government should lift their reservations on articles 2 and 7 of the Convention of the Rights of Child (CRC), an international treaty ratified by Malaysia in 1995, which relates to discrimination and the right to name and nationality.
Lastly, the group also suggested that article 14 and 15 be amended in Parliament, but this may counter or transgress the Basic Structure Doctrine of the Federal Constitution.
(2.3.2) Arguments by Counsel;
Counsel for Child: Lawyer Cyrus Das, appearing for the child, submitted that the only condition for a person born overseas to have Malaysian citizenship is that the father was a Malaysian during time of birth, the legitimacy of the child has nothing to do with it.
Moreover, Sharmini Thruchelvam and Francis Pereira added that if an illegitimate child were excluded citizenship, the constitutional framers would have expressly said so as a disqualification.
Federal counsel: Shamsul Bolhassan states that the constitution did not permit for an illegitimate child born to a non-citizen mother to gain Malaysian citizenship by operation of law. Subsequent legitimisation of child would still not affect the child's birth status.
He even added that, under section 4 of the Legitimacy Act 1961, even subsequent marriage is not valid, as the child is legitimate at the date of marriage.
Her Ladyship Rohana agreed with the Federal Counsel, because the Federal Constitution was explicitly clear that the citizenship by operation of the law must be determined at his birth, not after that. Clearly section 17, the child was illegitimate, he followed the mother's as he travelled with the Government of the Philippines passport.
(3.0) Conclusion;
To conclude, if a child were to be born illegitimately at that time to a non-Malaysian mother, then he could not apply for Malaysian citizenship. Even a marriage after that and changing the status of the illegitimate child afterwards to a legitimate one would not be fruitful.
The most important aspect is that during the time, being illegitimate to a non-Malaysian mother. Even for most people, thinking that this law is horrendous, the court took a positivist approach and states that it is for the parliament to decide, not the courts and they have interpreted the provisions of the Federal Constitution in accordance with the clear wordings.
(4.0) References;
Anbalagan, V. (2021, May) Federal Court rules illegitimate child not entitled to citizenship. Retrieved from, https://www.freemalaysiatoday.com/category/nation/2021/05/28/federal-court-rules-illegitimate-child-not-entitled-to-citizenship/
Emmanuel, M. (2021, May) Federal Court, in a 4-3 split decision, dismisses 10-year old boy’s appeal to get Malaysian citizenship. Retrieved from, https://www.malaymail.com/news/malaysia/2021/05/28/federal-court-in-a-4-3-split-decision-dismisses-10-year-old-boys-appeal-to/1977661
New Straits Times, (2021, May) JAG dismayed over Federal Court's citizenship denial for child. Retrieved from, https://www.nst.com.my/news/nation/2021/05/694189/jag-dismayed-over-federal-courts-citizenship-denial-child
Press Summary in the Federal Court of Malaysia (Appellate Jurisdiction) Civil Appeal No: 01(i)-34-10/2019(W). Dated, 28th May 2021. Retrieved from, http://www.kehakiman.gov.my/sites/default/files/2021-05/Press%20Summary%20%28Majority_28.5.2021%29%20FC.pdf
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