Dad sued Putrajaya before exhausting other avenues to get son’s citizenship, court told

KUALA LUMPUR, Nov 7 — The father of a 16-year-old boy whose citizenship status is currently in limbo did not go through the due process of applying to the Home Ministry for his son’s Malaysian citizenship before mounting a legal challenge against the authorities, a High Court was told today.

Instead, businessman Moorthy Ramiah Pillai dragged the Malaysian government to court after the National Registration Department (NRD) — a department under the purview of the Home Ministry — rejected his son, Navin’s, citizenship, said federal counsel Maisara Juhari.

“The plaintiff had decided to take the extreme action by filing an application to court,” said Maisara in the first day of trial before Justice Datuk Huew Siew Kheng.

“The court can only order the government to act if all other legal remedies have been exhausted... the plaintiff could have appealed or even filed for a fresh citizenship application

“There is no deadline or limitation for these applications,” she argued.

The government lawyer said that the rejection was decided by the Home Ministry’s secretary-general, not the minister, who has the final “absolute discretion”.

“The minister, on behalf of the federal government, has the right to decide on the citizenship status of the plaintiff,” she said in response to the argument by Navin’s lawyer, Annou Xavier.

Navin resorted to suing the director-general of the NRD, the Home Ministry and the federal government over his citizenship status through his father, after the his citizenship application was rejected twice.

In his submissions filed last December, the teenager claimed that he was initially issued a birth certificate that listed him as a citizen when he was born on July 8, 1998, but found that his status was later changed to “Bukan Warganegara” or non-citizen.

Navin, who was born to a Malaysian father and Filipino mother, is also listed as a citizen in his Malaysian passport issued by the Immigration Department.

In one of the letters of rejection, the NRD wrote that Navin’s application was fortified on grounds that his father’s marriage was not registered under the Law Reform (Marriage and Divorce) Act 1976.

But Xavier pointed out that Section 13 of the Birth and Death Registration Act 1957 gives power to the registrar to even register the birth of an illegitimate child, provided the father acknowledges himself to be the father of that child.

The teenager was also issued an international passport listing him as a citizen, said the lawyer, asking how could it be a “mistake”, and questioning the government’s earlier defence in reversing Navin’s citizenship status.

But Maisara stated that the passport was a “mere travel document” and that the “onus” is on plaintiff to prove whether he is a Malaysian citizen or otherwise.

Maisara also said that Navin’s application was without basis as the latter was born out of wedlock and by the Malaysian law, an illegitimate child should then follow the mother’s citizenship.

Citing the Second Schedule of the Federal Constitution, the federal counsel stated that in order to qualify for a citizenship, Navin’s parents must be married - taking to mean that “parents” under Article 14 of the Federal Constitution are individuals who are lawfully married.

But Xavier countered that Section 17 of Part III of Second Schedule of the Federal Constitution “merely envisages a situation where a child is illegitimate”.

He also noted that by definition, “child” under the Law Reform (Marriage and Divorce) Act 1976 includes an illegitimate child or an adopted child.

“The plaintiff may not be treated as a citizen by law but that does not mean that he cannot apply to be registered as a citizen of Malaysia under Article 15A of the Federal Constitution,” said Xavier.

Article 15A of the Federal Constitution provides special powers to the federal administration to register anyone under 21 years of age as a citizen, he added.

He asserted that while Malaysia has not drawn up any laws that adopt provisions under the United Nations’ Convention on the Rights of the Child (CRC), it is still bound by the principles of the convention - which covers legal protection of undocumented children - as the country had already ratified it in 1995.

Xavier also said that results of a DNA test proved Navin is the biological son of his Malaysian father.

Navin is seeking a declaration that he is a Malaysian citizen under Articles 14 and/or 15A of the Federal Constitution, and that he be issued a birth certificate and MyKad stating that he is a citizen.

Justice Huew is expected to deliver her judgement on November 25.