Landmark ruling on citizenship

PUTRAJAYA: The Federal Court, in a majority 4-3 decision, Friday dismissed an appeal by a 10-year-old boy who was born to a Malaysian father and a Filipino mother to get Malaysian citizenship.

Court of Appeal President Tan Sri Rohana Yusuf, who delivered the court’s majority decision, said the child did not meet the requisite criteria under the Federal Constitution to be declared a Malaysian citizen by operation of law. The child was born in the Philippines in September 2010 and a few months later, he and his parents travelled to Malaysia where the couple registered their marriage in February 2011.

Justice Rohana said legitimisation of the child after birth precluded him from being a citizen by operation of law under Article 14 of the Federal Constitution.

“This is because the provisions of the Federal Constitution are clear that citizenship by operation of law must be determined at his birth, not after that,” she said.

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The boy, whose identity is being withheld, sought to get Malaysian citizenship based on Article 14 (1) (b) of the Federal Constitution which states that a person is a citizen by operation of law or how a person automatically becomes a citizen if conditions under the Federal Constitution’s Second Schedule is met.

The majority decision to dismiss the boy’s appeal came from Justice Rohana and Federal Court judges Datuk Vernon Ong Lam Kiat, Datuk Zabariah Mohd Yusof and Datuk Seri Hasnah Mohammed Hashim, while Chief Justice Tun Tengku Maimun Tuan Mat and Federal Court judges Datuk Nallini Pathmanathan and Datuk Mary Lim Thiam Suan dissented.

The child’s father had applied to the National Registration Department (NRD) for his son to be made a citizen of Malaysia, but his application was rejected without any valid reason in 2012.

This prompted the boy, through his father, to file an originating summons against the NRD director-general, the Home Ministry secretary-general and the Malaysian government, seeking for a declaration that he is a Malaysian citizen and to compel the NRD director-general to issue a birth certificate and Malaysian identity card to the child.

On Aug 23, 2017, the High Court dismissed the originating summons and the boy also lost his appeal, which was dismissed by the Court of Appeal on Feb 14, 2019.

The boy, represented by a team of lawyers led by Datuk Dr Cyrus Das, then obtained leave to appeal to the Federal Court on Oct 1, 2019 on four legal questions for the court to determine.

In the court’s majority judgment, Justice Rohana said Section 17 of Part III of the Federal Constitution clearly states that for an illegitimate child, he is to follow the citizenship of his mother, which was presumed he had obtained because he was travelling on a passport issued by the Philippine government.

Meanwhile, Justice Tengku Maimun, in allowing the boy’s appeal, said the boy has met all requirements to get the citizenship by operation of law as there was no dispute with regard to the child’s biological father.

She said the word “father” in section 1 (b) in Part II of the Federal Constitution’s Second Schedule means biological father of the child, adding that whether a person is illegitimate or not is an irrelevant fact to determine the entitlement to citizenship provided that the identity of the biological father is known.

Both Justices Nallini and Lim also delivered separate judgments in support of Justice Tengku Maimun’s judgment.

Justice Nallini said it is an unsustainable construction to utilise illegitimacy to abrogate from the acquisition of a right of citizenship by operation of law.

“To deprive a child who by accident of the timing of his birth, and the marital status of his parents, of citizenship, both of which he had no control over, is to make him suffer the consequences of his parents’ actions. Is that the purpose and intention of the citizenship provisions under the Federal Constitution?, “ she said.

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Meanwhile, Justice Lim said it was her view that the fact the boy’s father was not married to his mother at the time of his birth does not diminish his right to acquire citizenship by operation of law.

The respondents were represented by a team of senior federal counsel led by Shamsul Bolhassan.

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