Citizenship of an illegitimate child born outside Malaysia, to a Malaysian biological father.

CTEB & ANOR v. KETUA PENGARAH PENDAFTARAN NEGARA, MALAYSIA & ORS

FEDERAL COURT, PUTRAJAYA

[CIVIL APPEAL NO: 01(i)-34-10-2019(W)]

28 MAY 2021

Whether it was proper to import into Part II Section 1(b) of the Second Schedule to the FC any other requirements for the citizenship of a child born to a Malaysian father other than those expressly stated in the provision?

Once art. 14(1)(b) and s. 1(b) of Part II of the Second Schedule of the Federal Constitution ('FC') is read together with the interpretation provision in the FC, in particular s. 17 of Part III of the Second Schedule in order to determine the qualifications necessary for the acquisition of citizenship by operation of law of an illegitimate child born out of the Federation, there is no necessity to adopt any other requirement to construe the provisions. Hence, the Legitimacy Act or any other law is therefore not to be read into the provisions as there is no mention made for the rights of citizenship in the Legitimacy Act and no corresponding provision in the FC that deems legitimisation confers the right to citizenship. The qualification of acquiring citizenship by operation of law must be met at birth. If the qualifications are not met, the court was not at liberty to add and subtract any other or qualifications which the FC states otherwise. There is no judicial supremacy articulated in the FC and the power to amend the Constitution rests solely with the Parliament. The court should not endeavour to achieve any fanciful meaning against the clear letter of the law.

Conclusion

The first appellant, being an illegitimate child, was not allowed to take after the citizenship of his father, the second appellant. This limited his lineage to his mother and since she was not a Malaysian citizen, the first appellant was not entitled to citizenship by operation of law under s. 1(b) of Part II of the Second Schedule. The fact that the first appellant was legitimated upon his parents' marriage subsequent to his birth was immaterial to the construction of the provisions of the FC. The thrust of the reasoning was that s. 17 of Part III of the Second Schedule qualifies the application of Part II, specifically s. 1(b) thereof. The important point to note on the material finding of the High Court was that legitimacy must be assessed from the time of birth. Only if the first appellant was legitimate at the time of birth would he automatically qualify for citizenship by operation of law under art. 14(1)(b) of the FC.

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