Federal Court, in a 4-3 split decision, dismisses 10-year old boy’s appeal to get Malaysian citizenship

KUALA LUMPUR, May 28 — An appeal by a 10-year old boy, who was born out of wedlock to a Malaysian father and Filipino mother, to obtain Malaysian citizenship was dismissed by the Federal Court today in a split 4-3 decision this morning.

The majority judgement dismissing the appeal was read out in court this morning by Court of Appeal President Tan Sri Rohana Yusuf who told the court that she and three other judges concurred that they failed to find merit in the arguments raised by the appellant’s counsels.

“I am in full agreement with both the High Court and the Court of Appeal that the Child 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 of Part III of the Second Schedule to be declared a citizen by operation of law, properly construed.

“Since Section 17 of Part III of the Second Schedule defines the word “father” as referring to “mother” in a case of an illegitimate child, the child’s citizenship cannot follow that of his father,” said Rohana when reading a section of her judgement over a Zoom teleconference streamed this morning.

“The appeal of the appellants is dismissed and the decisions by both courts below are affirmed,” she added.

Other judges on the bench who concurred with Rohana are Datuk Vernon Ong Lam Kiat, Datuk Zabariah Mohd Yusof, Datuk Hasnah Mohammed Hashim.

Article 14(1) must be read alongside its accompanying clauses, namely Section 17 of the Third Schedule which differentiates a person’s status of legitimacy based on their parents’ matrimonial status, even if it carries some form of discrimination.

The ruling effectively interprets that a child born out of wedlock as unable to qualify for jus soli or jus sanguine claims to citizenship provided for under the Federal Constitution, in this case, even if the child’s father is a Malaysian and the couple eventually got married.

“Given that Article 14 discriminates between the legitimate and illegitimate child as well as it is also gender-biased against the mother.

“I, for one, am not in favour of such discrimination but it is beyond the jurisdiction of this Court to bridge the discrimination, which the Federal Constitution allows and inconsonant with the clear text of Article 8,” she said referring to provisions on matters of equality as spelled out in Article 8.

She agreed with Senior Federal Counsel Shamsul Bolhassan, who is representing the government and its agencies as respondents, when he submitted that a child’s status is determined at their point of birth and not after that, voiding the effect of any eventual marriages.

“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.

“Section 17 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 the passport issued by the Government of the Philippines and in this case that of the Philippines.

“It is not the function of the Court to change that clear terms of the Federal Constitution because the power to amend the Federal Constitution lies in the Parliament, pursuant to Article 1599 of the Federal Constitution and in adherence to the doctrine of separation of powers,” she ruled.

This as the child’s lawyers, led by Datuk Cyrus Das, had previously argued how the child should be given citizenship as his parents eventually tied the knot several months after he was born, a view Rohana disagreed with.

Rohana stressed that however unpopular the decision may be, it remains the duty of the courts to uphold and interpret the Constitution through the wordings used in the provisions, and how the judiciary must and will not be bound by the more popular choice.

“The function of the Court is always to uphold and interpret the clear wordings of the FC or the law no matter how much it dislikes or how unpopular the result may be.

“Courts, unlike the politicians, do not have the business of seeking popularity by making popular decisions,” she said.

Rohana ruled that the child having a passport officially issued by the government of the Philippines also disqualifies him from being bound by Article 24 of the Federal Constitution which concerns the deprivation, or revoking, of citizenship from someone who has been registered as a citizen in another country other than Malaysia.

She said the clauses within Article 24 had no bearing on today’s appeal, effectively ruling that the appellant was never a Malaysian to begin with, therefore he could not have been subjected to any form of citizenship deprivation.

But Rohana did say that the child’s status still allows him to apply under Article 15 of the Federal Constitution to gain citizenship, a step that requires special approval directly from the federal government.

“Article 24 is a citizenship-deprivation provision which could only apply to a person who is already a citizen of Malaysia. There could not be a deprivation of citizenship until citizenship has first been conferred on the Child.

“In the present appeal, the child’s acquisition of a Philippines passport is not a disqualifying factor under the law for him to be given consideration for citizenship under Article 15 of the FC.

“Under the Federal Constitution, this child may be qualified to be considered for a citizenship by registration under Article 15(2), which he may have to apply to the Government first,” she read.

Judges who allowed the appeal but formed the minority judgment were Chief Justice Tun Tengku Maimun Tuan Mat, Datuk Nallini Pathmanathan, Datuk Mary Lim Thiam Suan.

When reading her judgment, Tengku Maimun instead ruled that additional provisions inserted alongside Article 14 involving a child’s legitimacy were placed as supplementary and enabling provisions that should apply to children who do not know the identity of their fathers, unlike the appellant in this case.

“The logical conclusion, therefore, is that having regard to the historical and purposive cannons on construction as borne out from the foregoing interpretive exercise, the word ‘father’ in section 1(b) of Part II and anywhere else relevant to the context of this appeal ought to be construed as meaning ‘biological father’.

“Thus, the legitimacy status of any person claiming citizenship under Article 14(1)(b) read together with Part II is an irrelevant factor in cases where paternity is known and the said biological father is a citizen of Malaysia and has met the rest of the requirements of section 1(b) of Part II,” she said.

On the topic of possible discrimination, Tengku Maimun agreed that could be prejudice towards the appellant and the parents if the accompanying provisions surrounding citizenship are read in tandem and not as enabling provisions as how she interprets them.

“The first form of discrimination is against the parents. In a case where the parental status of the child is known but the child is born out of wedlock, interpreting section 17 of Part III in the manner advanced by the respondents has the effect of discriminating the father of the person claiming to be entitled to citizenship by operation of law.

“The fathers are essentially deemed non-existent and the fact of paternity is ignored,” she said.

Other forms of possible discrimination she raised were the possibility of DNA or biological evidence which affirms a child’s paternity as being null and void as the child’s status of legitimacy trounces these facts.

“However, if one were to accede to the interpretation accorded by the respondents, the jus sanguinis principle is effectively rendered otiose for illegitimate children,” she said.

“Whatever one may say or consider about the concept of legitimacy, there is at the end of the day no fault on the part of the person who was born illegitimate. They have absolutely no control over their status.

“I am unable to discern any nexus to any sound objective or policy to deny a person citizenship by operation of law in spite of them being able to prove, through reliable scientific methods, the biological nexus between themselves and their father (or even the mother) simply because their parents are not married.

“This defies the very notion of jus sanguinis (which requires a ‘blood relation’) which is not otherwise determined by law,” she said.

This marks the final legal passage for the child’s attempt towards gaining Malaysian citizenship, an application that was first heard and dismissed by the High Court back in 2017, and again in February 2019 by the Court of Appeal.

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

The boy, through his father, then filed an originating summons seeking a declaration that the child is a Malaysian citizen. He was born in the Philippines but his parents married in Malaysia a few months after his birth.

He also sought an order to compel the NRD director-general to issue a birth certificate and Malaysian identity card to the child.

On August 23, 2017, the High Court dismissed the originating summons and ruled that the child was not qualified to acquire citizenship by operation of law as at the time of his birth, the mother was not a citizen of the Federation of Malaysia.

His appeal to the Court of Appeal was dismissed on February 14, 2019. He obtained leave to appeal to the Federal Court on October 15, 2019 on four legal questions for determination of the court before today’s dismissal.