Wednesday, October 20, 2021

Boy born to Filipino mother, Malaysian father loses appeal for citizenship

The court rules in a 4-3 decision that the boy did not meet the requisite criteria under the Federal Constitution to be declared a Malaysian citizen by operation of law.

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The Federal Court in a majority 4-3 decision today 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 Rohana Yusuf, who delivered the court’s 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. A few months later, he and his parents travelled to Malaysia where the couple registered their marriage in February 2011.

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.

The boy, whose identity is being withheld, sought to obtain 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 automatically becomes a citizen if conditions under the Federal Constitution’s Second Schedule are met.

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

The child’s father had applied to the National Registration Department (JPN) 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 JPN director-general, the home ministry secretary-general and the Malaysian government, seeking a declaration that he is a Malaysian citizen and to compel the JPN 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. 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 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, Rohana said Section 17 of Part III of the Federal Constitution clearly states that illegitimate children are to follow the citizenship of the mother, which was presumed to have been obtained because he was travelling on a passport issued by the Philippine government.

Meanwhile, Tengku Maimun, in allowing the boy’s appeal, said the boy had met all requirements to obtain 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.

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

Nallini said it was 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.

Meanwhile, Lim said it was her view that the fact that the boy’s father was not married to his mother at the time of his birth did 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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