Federal Court rules illegitimate child not entitled to citizenship

The Federal Court has ruled, in a 4-3 decision, that a 10-year-old boy must follow the citizenship of his Filipino mother.
The Federal Court has ruled, in a 4-3 decision, that a 10-year-old boy must follow the citizenship of his Filipino mother.

PUTRAJAYA: The Federal Court has ruled that a 10-year-old boy born to a Malaysian father and a Filipino mother is not entitled to Malaysian citizenship.

In a narrow 4-3 verdict, judge Rohana Yusuf said the appeal was dismissed as the boy was illegitimate at the time of his birth and the parents were only married five months later.

Rohana, who is also the Court of Appeal president, said the Federal Constitution also stated that an illegitimate child followed the citizenship of the mother.

Joining her were judges Vernon Ong, Zabariah Mohd Yusof and Hasnah Mohammed Hashim.

Chief Justice Tengku Maimun Tuan Mat, judges Nallini Pathmananthan and Mary Lim Thiam Suan were in the minority.

Tengku Maimun said fundamental liberties were always evolving and denial of citizenship was discriminatory as it violated the equality provision in the constitution.

The top judge said the citizenship of a child could be determined by the mother only if the identity of the father was unknown.

Nallini said the majority verdict pointed out that only motherhood conferred the citizenship of a child and not fatherhood.

The verdict was delivered via a virtual proceeding in view of the Covid 19 pandemic. The bench had deferred its judgment after hearing submissions from parties on Feb 4.

The boy, whose identity is being withheld on the order of the court, was born to the couple who were initially not legally married. The child only held a Filipino passport.

The boy, who was born in 2010, was brought into Malaysia by his mother from the Philippines.

His mother legally married his 55-year-old Malaysian father in February 2011, five months after he was born, and the family now lives together in Malaysia.

DNA testing showed the 55-year-old is the biological father. The custody and control of the child have always been with his parents. However, the boy’s application for citizenship was not approved in September 2012.

Following this, an originating summons was filed at the High Court in 2016, naming the director-general of the National Registration Department (NRD), the secretary-general of the home ministry and the Malaysian government as defendants.

The parents sought a declaration that their child is a Malaysian citizen and directed the authorities to register him as a citizen.

On Aug 23, 2017, the High Court dismissed the suit 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 Malaysia.

His appeal to the Court of Appeal was dismissed on Feb 14, 2019. He obtained leave to appeal to the Federal Court on Oct 15, 2019 on four legal questions for determination of the court.

Lawyer Cyrus Das, who appeared for the child, had submitted that the only condition for a person born overseas to be entitled to Malaysian citizenship was that the father be a Malaysian at the time of the person’s birth and not the legitimacy of the child at the time of his birth.

Das, who appeared with counsel Sharmini Thiruchelvam and Francis Pereira, said that if illegitimate children were to be excluded for citizenship, the constitutional framers would have expressly provided for that disqualification.

Federal counsel Shamsul Bolhassan submitted that the constitution did not permit for an illegitimate child born to a non-citizen mother to gain Malaysian citizenship by operation of law.

He said the subsequent legitimisation of the child did not have the effect of changing the child’s birth status.

“It is clear that even under Section 4 of the Legitimacy Act 1961, the subsequent marriage of the parents will only deem the child as legitimate from the date of the marriage,” he had said.


Source: https://www.freemalaysiatoday.com/category/nation/2021/05/28/federal-court-rules-illegitimate-child-not-entitled-to-citizenship/

V Anbalagan – May 28, 2021 12:05 PM

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