CTEB & ANOR v KETUA PENGARAH PENDAFTARAN NEGARA, MALAYSIA & ORS [2020] 3 MLJ 634

Court of Appeal (Putrajaya)

Citizenship of An Illegitimate Child

2.    The First Appellant was born in the Philippines on 27 September 2010.

3.    The Second Appellant, a Malaysian citizen, is the biological father, and the mother is a Philippine citizen.

4.    The parents legally married in Malaysia on 22 February 2011, four months after the child’s birth, through legal registration.

5.    At birth, the First Appellant was deemed illegitimate.

(b) Whether a child who has acquired foreign citizenship may lose their right to Malaysian citizenship?

Ratios

1.    Whether an illegitimate child born abroad to a Malaysian father and a mother who is a Philippine citizen was eligible for Malaysian citizenship?

(a) The Court referred to Paragraph (b) of Clause (1) of Article 14 of the FC, addressing citizenship by law, which must be read in conjunction with the provisions below. The relevant provisions are –

(i)    Paragraph (b) Clause (1) of Article 14 of the Federal Constitution states-

“Citizenship by operation of law

14(1) Subject to the provisions of this Part, the following persons are citizens by operation of law, that is to say:

(b) every person born on or after Malaysia Day, and having any of the qualifications specified in Part II of the Second Schedule.”

(ii)   Section 1 of Part II of the Second Schedule provides-

“1. Subject to the provisions of Part III of this Constitution, the following persons born on or after Malaysia Day are citizens by operation of law, that is to say:

 (b) every person born outside the Federation whose father is at the time of the birth a citizen and either was born in the Federation or is at the time of the birth in the service of the Federation or of a State;”

(iii)  Section 17 of Part III of the Second Schedule provides-

“17. For the purposes of Part III of this Constitution references to a person’s father or to his parent, or to one of his parents, are in relation to a person who is illegitimate to be construed as references to his mother, and accordingly section 19 of this Schedule shall not apply to such a person.”

[Emphasis Added]

(b)   In the present appeal, the First Appellant was born before the parents’ marriage and classified as illegitimate at time of birth, with the mother being a Philippine citizen. According to the principles, for an illegitimate child to obtain citizenship by operation of law, the mother must have been a Malaysian citizen at the time of the child’s birth. Hence, this requirement was not fulfilled.

(c)  The Court also referred to section 3, section 4, and section 9 of the Legitimacy Act 1961 (Act 60), which provides that –

“Section 3

(1)    Nothing in this Act shall operate to legitimate a person unless the marriage leading to the legitimation was solemnised and registered …”

“Section 4

Subject to section 3, where the parents of an illegitimate person marry or have married one another, whether before or after the prescribed date, the marriage shall, if the father of the illegitimate person was or is at the date of the marriage domiciled in Malaysia, render that person, if living, legitimate from the prescribed date or from the date of the marriage, whichever is the later”

 

“Section 9

A legitimated person shall have the same rights and be under the same obligations in respect of the maintenance and support of himself or of any other person as if he had been born legitimate, and subject to this Act the provisions of any written law relating to claims for damages, compensation, allowance, benefit or otherwise by or in respect of a legitimate child shall apply in like manner in the case of a legitimated person.“

(d) However, the child’s legitimacy, as defined by section 3 and section 4 cannot be applied retrospectively. Section 4 clearly specifies that the child is considered legitimate only from the “prescribed date or the date of marriage, whichever is later.

(e)  Consequently, the First Appellant was recognised as a legitimate child only from the date of the parents’ marriage and not from the time of birth.

(f)   Additionally, the Court clarified that section 9 of Act 60 only covers maintenance, support, claims for damages, compensation, allowances, and benefits, but it does not extend to rights of citizenship.

2.    Whether a child who has acquired foreign citizenship may lose their right to Malaysian citizenship?

(a)   The Court also referred to Article 24 of Federal Constitution which allows the Federal Government to revoke a person’s Malaysian citizenship if it is determined that the individual has obtained citizenship of another country through registration, naturalisation, or any other formal and voluntary means (excluding marriage).

(b)   Additionally, if a Malaysian citizen voluntarily exercises rights in another country that are exclusive to its citizens, the government may also revoke their Malaysian citizenship.

(c)   In the present case, the Court held that the First Appellant holds a Philippine passport, which implies that he has exercised rights exclusive to Philippine citizens.

Key Take Away

1.    A child born abroad to a Malaysian father may qualify for citizenship under Article 14 of the FC if the father held citizenship at the child’s birth.

2.    However, an illegitimate child born abroad to a non-Malaysian mother cannot automatically gain Malaysian citizenship through the father’s status; which Section 17 of Part III of the Second Schedule specifies that citizenship in such cases depends on the mother’s nationality.

3.    A child’s legitimacy is only recognised from the date of the parents’ marriage, not from the time of birth, thus not granting retrospective citizenship.

4.    The Constitution (Amendment) Bill 2024 amendment allowing Malaysian mothers to confer citizenship to children born overseas aims to address issues of gender inequality. However, if the interpretation of section 17 and illegitimacy remains unchanged, the rule that illegitimate children’s citizenship is based on the mother’s nationality may still apply.