Three Lessons from the Illegitimate Child’s Citizenship Case

On 28 May 2021, within the Palace of Justice sat a panel of 7 judges, prepared to orally present the decision relating to one main issue: Whether the Federal Constitution allowed for the denial of Malaysian citizenship to the child of a Malaysian father and a non-Malaysian mother, on the basis that they were not married at the time of the child’s birth, but five months later. 

Up till that point, it was well-established that Malaysian laws on citizenship allow Malaysian fathers with foreign spouses to automatically pass on citizenship to their children, while the same was not accorded to Malaysian mothers with foreign spouses. However, the Federal Court was dealing with a novel point; it was about to make history by ruling on an instance concerning non-Malaysian mothers who had illegitimate children with Malaysian fathers.

Out of the 7 judges, 4 (the majority) ruled against the appeal to overturn the High Court and Court of Appeal decisions to deny the child citizenship, while 3 (the minority) were in favour. It is worth noting that the Chief Justice herself, YA Tengku Maimun Tuan Mat was one of the 3 who were in favour of the appeal.

The main issue

Prior to the decision, both the Applicants (the child in question and his mother) and the Respondents (Director General of the National Registration Department, the Secretary General of the Home Ministry and the Government of Malaysia) presented their respective arguments for the Federal Court’s determination. Although there was a minor point concerning whether the child in question was to be deprived of  Malaysian citizenship for possessing a Filipino passport (the answer was unanimously: no, although the majority and minority had different reasons behind it), the major dispute centered around the interpretation of three main provisions of the Federal Constitution – Section 14(1)(b), Section 1(b) Part II of the Second Schedule, and Section 17 Part III of the Second Schedule:

  Part II Second Schedule

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 … 

Supplementary Provisions Relating to Citizenship

Part III Second Schedule

Interpretation

17. For the purposes of Part III of this Constitution references to a persons 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.

In gist, the Applicants took the view that Section 1(b) does not distinguish between ‘legitimate’ and ‘illegitimate’ children, and that Section 17 is only to be applied where a child is born to an unwed Malaysian mother and the father cannot be identified.

On the other hand, the Respondents took the view that Section 17 has the effect of qualifying Section 1(b), and therefore the word ‘mother’ must be read in place of ‘father’ in Section 1(b). 

Three Lessons from the Outcome

In my humble view, 3 lessons can be gleaned from both majority and minority judgements.

One, not all judges think alike. The majority gave one written grounds of judgment, while the 3 dissenting judges (i.e. the minority) gave separate grounds of judgment – 1 main ground of judgment and 2 concurring judgments.  

It is interesting to note, that both the Applicants and Respondents argued that their respective interpretations were ‘literal interpretations’, while having completely differing positions. Yet, from reading the written judgments of the majority and minority, it is clear that both utilize different methods of interpretation to achieve their respective outcomes.

Good lawyers will do their best to understand their audience (i.e. the judge or panel of the day) and, where necessary, adjust their style of submission. However, when it comes down to brass tacks, the ruling of one judge may not necessarily be replicated with another judge.

Two, judges can recognize the injustice caused to you, but at the same time rule against you. The Malaysian legal system is based on constitutional supremacy, and our judiciary is the guardian of the Federal Constitution. This was common ground between the majority and the minority. Further, all 7 judges agreed that disallowing a child’s citizenship purely based on illegitimacy at the time of birth amounted to discrimination against illegitimate children.

Where both sets of judges differed is where the majority held that the Federal Constitution provides for the discrimination between legitimate and illegitimate children and therefore can only be amended through Parliament, and the minority held that such discrimination could not have been intended by the drafters of the Federal Constitution as it contravened Article 8 (right to equality).

In fact, YA Rohana Yusuf JCA for the majority stated, “I am in full agreement with the views expressed that the provisions on citizenship are gender biased in that it emphasises on the citizenship of the father and not the mother. I hasten to add, lest it be misunderstood that I am all for the abolition of gender discrimination.”

Many clients perceive that judges will always rule in their favour, because they believe that the justice of their case lies with them. However, there are many factors that determine the success of a case, and unfortunately, the justice of a case does not override all the said factors. This is why it is important to engage a competent lawyer who is honest about the chances of your success.

Three, judicial cases can have wide-ranging implications on ordinary people. While this may be obvious to some, it cannot be understated how case laws, have an effect, not only on the parties litigating the matter but many other strangers – from mothers of newborns in a National Registration Department office based in Gombak to purchasers who are facing late delivery of vacant possession of their residential properties.

As a result of this decision, many children who may have otherwise been granted citizenship, are deprived of, among other things, affordable education and free medical care, through no fault of their own. As YA Tengku Maimun binti Tuan Mat CJ stated at Paragraph 94, “Whatever one may say or consider about the concept of legitimacy, there is at the end of the day no fault on the part of the person who was born illegitimate. They have absolutely no control over their status.”

Unless and until the Federal Court revisits and revises its own decision through another case with similar facts, the discrimination faced by children of illegitimate status, including the deprivation of citizenship in the event the child’s mother is non-Malaysian notwithstanding the father being Malaysian, can only be remedied through Parliament.

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