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Issue on citizenship

Case Law: Chan Tai Ern Bermillo & Anor v Ketua Pengarah Pendaftaran Negara & Ors [2017]
MLJU 1220, High Court KL

Facts:

First plaintiff was born in the Philippines on 27 September 2010. His biological father is Malaysian and
biol mother is a citizen of the Republic of the Philippines. At the time of Pi's birth, P2 and Maylene
were not married in Malaysia. They were also not married according to the laws of the Philippines.
Hence, PI was born out of wedlock and was illegitimate at the material time of his birth. P2 was born in
Alor Setar, Kedah on 13 March 1965 and is a Malaysian citizen by operation of law. P2 and Maylene
legally registered their marriage in Malaysia on 22 February 2011 which is about five (5) months after
PI was born. All parties are domiciled in Malaysia.

First plaintiff made an application for citizenship on 20 April 2011, pursuant to Article 15A of the FC.
However, the application for citizenship was rejected.

Grounds of reliefs under OS

i) a declaration that P1 is a Malaysian citizen under Article 14(1)(b) and /or Article 15(2);
ii) an order compelling the defendants to issue a certificate of citizenship and a Malaysian identity
card to P1;
iii) an order for the defendants to register Pi's name in the Register under Section 4 of the National
Registration Act 1959 and its regulation; and
iv) damages.

Plaintiff's Submission

1. The Legitimacy Act 1961

3. Conditions of application of Act


Section 3(1): Nothing in this Act shall operate to legitimate a person unless the marriage leading to the
legitimation was solemnised and registered in accordance with.

Section 4 - Legitimation by subsequent marriage of parents


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.
It is submitted that the proper solemnisation and registration of marriage between P2 and Maylene
evidences that the condition in Section 3 of Legitimacy Act 1961 has been satisfied and Section 4 of
Legitimacy Act 1961 renders PI legitimated since his biological parents subsequently married.

2. Best interest of the child


It was also submitted that Malaysia had ratified the United Nation Convention on the Rights of the
Child in 1995 to uphold Malaysia's commitment to the protection and welfare of the children in the
country. Counsel for plaintiff referred to
Article 3 of the CRC which states:-
"In all actions concerning children, whether undertaken by public or private social welfare institutions,
courts of law, administrative authorities or legislative bodies, the best interests of the child shall be
primary consideration.”

Defendants' Arguments
1. P1 is not qualified to acquire citizenship by operation of law under Article 14(1)(b)

The acquisition of citizenship by operation of law is governed by Article 14 of Federal Constitution


read together with Part II of the Second Schedule, which read as follows:-

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:
(a) every person born before Malaysia Day who is a citizen of the Federation by virtue of the
provisions contained in Part 1 of the Second Schedule; and
(b) every person born on or after Malaysia Day, and having any of the qualifications specified in
Part II of the Second Schedule.

The necessary qualifications are as stipulated in Part II of the Second Schedule and the relevant
portion of Part II of the Second Schedule of the Federal Constitution provides as follows:-

"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;”

Section 1 Part II of the Second Schedule of the Federal Constitution is subject to the provisions of Part
III of the Second Schedule. In particular Section 17 is relevant and reads as follows:-

"Section 17 -- For the purposes of Part III of this Constitution, reference 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.

2. P1 is not eligible to acquire citizenship by registration under Article 15(2) of the Federal
Constitution

Citizenship by way of registration must be applied and approval is subject to the Federal Government's
discretion. In this case, there was no such application, rendering this application as premature. In any
event, P1 is still not eligible to acquire citizenship under Article 15(2) due to his illegitimate status at
the time of his birth. Article 15(2) reads as:-
"Subject to Article 18, the Federal Government may cause any person under the age of twenty-one
years of whose parents one at least is (or was at death) a citizen to be registered as a citizen upon
application made to the Federal Government by his parent or guardian.''

Conclusion by Court
 Section 17 of Part III of the Second Schedule has specifically and unambiguously construed that
"father for the purpose of Part III of the Federal Constitution which governs the acquisition of
citizenship, in relation to a person who is illegitimate, refers to his mother.
 At the material time of his birth, P1's mother was not a citizen of the Federation of Malaysia.
On that analysis, P1 clearly does not fulfill the criteria which is necessary for the application of
Article 14(1)(b) of the Federal Constitution of Malaysia.
 No doubt, with effect from 22 February 2011, upon the marriage between P2 and Maylene, P1
was no longer illegitimate pursuant to Section 4 of the Legitimacy Act 1961. And pursuant to
Section 9 of the Legitimacy Act 1961, PI acquires all the rights and entitlements as a legitimate
child of his parents "as if he had been born legitimate. But it is important to bear in mind that
the section refers to "maintenance and support claims and for "damages, compensation,
allowance, benefit or otherwise under any written law.
 It is significant that the section does not expressly or impliedly allude to acquisition of
citizenship by a child whose illegitimate status has been legitimized by virtue of the subsequent
marriage of his parents.
 Pi's illegitimate status may have been legitimized by virtue of Section 4 of the Legitimacy Act
1961 for all the purposes as stated in Section 9 of the Legitimacy Act 1961. Indeed, P1 may
well have become legitimate for purposes beyond the four corners of Section 9. But, that of
itself does not mean that Pi's status of illegitimacy has been altered for purposes of Article 14(1)
(b) and Section 1 Part 11 of the Second Schedule to the Federal Constitution.
 Thus, regardless of the subsequent legitimization of Pi's status with effect from 22 February
2011, his illegitimate status at the point of birth remains extant and Section 17 Part III to the
Second Schedule to the Federal Constitution applies with full force with the result that the
relevant citizenship status is that of the mother and here it is plainly obvious and indisputable
that at birth, P1 was illegitimate and his mother was not a citizen of the Federation of Malaysia.
 The legitimization of P1's status as no longer illegitimate with effect from the date of his
parents' marriage on 22 February 2011 is irrelevant in so far as Section 17 Part III of the Second
Schedule of the Federal Constitution is concerned.
 For purposes of Section 17 Part III of the Second Schedule of the Federal Constitution, P1's
status is the status that obtained at the time of birth, which means that he was illegitimate at that
time, and since his mother, Maylene was a non-citizen, he accordingly lacked the requisite
qualification for purposes of acquiring citizenship "by operation of law under Article 14(1) (b)
of the Federal Constitution.
 In Yu Sheng Meng (Suing Through Next of Kin, Yu Meng f eng) v Ketua Pengarah Pendaftaran
Negara & Ors [2016] 1 CLJ 336;; [2015] MLJU 637 HC Asmabi J held that the parent of an
illegitimate child whose biological mother is a non-citizen is disqualified from making an
application for citizenship under Article 15(2) of the Federal Constitution. This Court inclined
to agree with the interpretation that was rendered by the High Court in that case.
 P1' biological mother's non-citizenship is an impediment to any application for citizenship
under Article 15(2) of the Federal Constitution.