KUALA LUMPUR, Feb 15 — The Court of Appeal today unanimously decided that it was correct to declare a 15-year-old girl born in Perak — to a Malaysian father and Filipino mother — as a Malaysian citizen.
Court of Appeal judge Datuk Gunalan Muniandy, who read out a three-judge panel’s brief judgment, said the High Court was correct in deciding in 2019 to recognise the girl as a Malaysian citizen.
Gunalan dismissed the government’s appeal against the High Court’s recognition of the girl as a Malaysian citizen.
“In our judgment, the learned High Court judge had interpreted the law correctly and appreciated the facts before her in coming to the decision,” the judge said.
“We do not agree with the respondents that the judge had erroneously construed the Articles of the Federal Constitution and Second Schedule before arriving at her decision and making the orders against the respondents. Therefore in our considered view, there was no clear error of fact or law in the learned High Court judge’s judgment.
“We accordingly are inclined to conclude there are no merits in this appeal, which is hereby dismissed with no order as to costs,” the judge said in the delivery of the decision through the video-conferencing platform Zoom.
The Court of Appeal panel was chaired by Datuk Seri Kamaludin Md Said, while judge Datuk Vazeer Alam Mydin Meera was also on the panel.
The High Court had on May 2, 2019 declared that the girl — who would be 13 that year — is a Malaysian citizen by operation of law under Article 14(1)(b) of the Federal Constitution, and directed for a citizenship certificate and identification card to be issued to her.
With the Court of Appeal today unanimously upholding the High Court’s decision, this would mean the High Court orders for the girl to be issued a citizenship certificate and identification card would still stand.
When contacted after the decision, Annou Xavier, who is one of the lawyers for the girl, told Malay Mail: "With today's Court of Appeal decision, I hope the Home Ministry will issue an identity card stating 'Warganegara' to my client without delay." Warganegara is the Malay term for citizen.
When contacted by Malay Mail, Larissa Ann Louis, who is also a lawyer for the girl, said: “We filed the case when she was 10, she’s 16 now. It’s been a long journey but we are overjoyed that she is now recognised. She belongs.”
The girl’s parents attended the Court of Appeal’s delivery of its decision online via the video-conferencing platform Zoom.
Senior federal counsels Liew Horng Bin and Nur Idayu Amir, who represented the Malaysian government and two other respondents, were also present at today’s Zoom session.
Lawyers who held a watching brief today for the case were G. Manimagalai for the Bar Council, Tay Kit Hoo for the Human Rights Commission of Malaysia (Suhakam), Denise Lim for Voice of the Children, and Ranee Sreedharan for the Development of Human Resources for Rural Areas Malaysia, while Yayasan Chow Kit was represented by Noor Hasini Omar who was present as an observer.
Waiting her whole life for recognition as Malaysian citizen
The girl was born in Perak in November 2006 with a birth certificate stating her status to be “Bukan Warganegara” (non-citizen). She will be turning 16 later this year, and has virtually been waiting her entire life for Malaysia to recognise her as a citizen.
The girl’s Malaysian father had made multiple attempts throughout an eight-year period from February 2008 to August 2016 ― which included years of waiting for the National Registration Department’s (NRD) to respond ― to seek his daughter’s recognition as a Malaysian citizen.
The Malaysian father had first applied for the girl’s citizenship on February 20, 2008 when she was just more than one year old but had received no replies.
The second citizenship application for the girl on October 13, 2011 resulted in a rejection letter dated December 17, 2012 with no reasons given for why the application was unsuccessful, while the third application made on September 9, 2013 only resulted in a response almost three years later via an August 5, 2016 rejection letter that again gave no reasons for the rejection.
The Malaysian father had also carried out a DNA test, and the Department of Chemistry Malaysia’s July 18, 2014 report confirmed that he is the girl’s biological father.
Together with his daughter, the father then filed a lawsuit on October 28, 2016 against the August 2016 citizenship application rejection, naming the three respondents in the judicial review as Home Ministry secretary-general, the NRD’s director-general and the government of Malaysia. The girl would be 10 that year.
Although the High Court had on May 2, 2019 ordered for the girl to be issued with a Malaysian citizenship certificate and the MyKad identification card, the girl did not receive these documents as the government and the two other respondents filed an appeal on May 27, 2019 to the Court of Appeal.
In 2019, she was due to turn 13. She is now already 15 and is due to turn 16 later this year.
If the Malaysian government does not file for an appeal at the Federal Court against the Court of Appeal decision today favouring the girl, the government, NRD and the Home Ministry would have to comply with the High Court order to issue the citizenship documents to the Perak-born girl in recognition of her Malaysian citizenship.
Previously, the Perak-born girl’s lawyer Annou had pointed out during the Court of Appeal hearing that the girl has been in Malaysia her whole life, and that she is a stateless person as she is not a citizen of any country ― including the Philippines where her mother originates from.
What the High Court decided
The girl’s parents registered their marriage in Perak in January 2008. Although the girl was initially considered to be illegitimate due to her birth before the marriage registration, the High Court said the girl has since become legitimate in status upon her parents’ marriage registration, due to Section 3 and Section 4 of the Legitimacy Act 1961.
Under the Legitimacy Act’s Section 4, a child would become legitimised by the parents’ subsequent marriage, with the change in status being from the date of marriage or prescribed date, whichever is later. (This provision however applies only to non-Muslims, and would apply to the Perak-born girl’s situation as her parents are non-Muslims.)
This is a crucial point as the government had sought to rely on Section 17 in Part III of the Second Schedule of the Federal Constitution ― which applies to illegitimate persons and results in “father” or “parent” or “one of his parents” in the Constitution’s citizenship provisions being interpreted as referring to an illegitimate person’s mother ― to argue that the girl should not be recognised as a Malaysian.
The government had argued that Section 17 means that the girl should follow her non-Malaysian mother’s nationality due to her illegitimate status at birth, despite her having been born in Malaysia.
The High Court judge Datuk Faizah Jamaludin however concluded that Section 17 does not apply to the Perak-born girl as she has been legitimised after her parents’ marriage was registered, and that this meant she fulfilled the conditions under Article 14(1)(b) and Section 1(a) of Part II of the Federal Constitution’s Second Schedule to be a citizen by operation of law.
Article 14(1)(b) states that those who are born after Malaysia was formed and who fulfil any of the conditions in Part II of the Second Schedule are citizens by operation of law or entitled under the law to be Malaysians, while the Section 1(a) condition provides that every person born in Malaysia ---- with at least one Malaysian or permanent resident parent at the time of their birth --- qualifies to be a Malaysian citizen.
As the girl has been legitimised, the High Court said she has a legitimate expectation to acquire Malaysian citizenship and to own rights as a Malaysian citizen, saying that her personal right to be entitled to Malaysian citizenship by operation of law would be injured if the respondents fail to issue her with a Malaysian citizenship certificate and a MyKad.
The Court of Appeal today agreed with and upheld the High Court’s decision.