Legal Update 1 of 2018

CASE

MADHUVITA JANJARA AUGUSTIN (SUING THROUGH NEXT FRIEND MARGARET LOUISA TAN) V AUGUSTIN A/L LOURDSAMY & ORS [2018] 1 MLJ 307

ISSUE

Is it right for a child to be denied citizenship although one parent is a Malaysian only because the parents were not legally married at the time the child was born?

BRIEF FACTS

  • Madhuvita (citizen of Papua New Guinea) and Augustin (Malaysian citizen) had a daughter on 28 November 2005 in Malaysia before they were legally married in 2006.
  • The child’s parents did not realise that her birth was not registered until the time they wanted to enroll the child at a local school. Having the birth certificate was a pre-requirement.
  • The parents then registered the birth certificate on 18 April 2011. However, the child was not given a Malaysian citizenship. 
  • The father applied for citizenship under art 15A of the Federal Constitution (‘the FC’) but the application was unsuccessful. 
  • Before the High Court, the mother sought: (a) a declaration that the child was a legitimate daughter of the father and her mother; (b) an order that the mother and the father undergo DNA test; (c) the Registrar of Births and Deaths Malaysia re-register the child’s birth as a legitimate person, her status as a Malaysian citizen and her religion as Christian.
  • The issue before the High Court was whether the child may be granted citizenship by operation of law.
  • The High Court judge refused the application.
  • Although the child fulfilled the first condition in that she is born in the Federation, she did not meet the second condition which required at least one of her parents to be, at the time of her birth, a Malaysian citizen or was ordinarily resident in the Federation.
  • This second condition according to the Judge was not met because her parents were not lawfully married to each other at the time of her birth.
  • Madhuvita appealed to the Court of Appeal

DECISION: Appeal allowed

  • In the present appeal, the subject matter is entirely within the purview of the court.
  • The claimed citizenship by operation of law is on the basis that the child was born in the Federation and that one or both parents who are themselves, citizens of Malaysia.
  • The undisputed fact is that the child was born within the Federation. Since it was an uncontroverted and an admitted fact that Augustin was the biological father of the Child the pre-requirements are satisfied.
  • The fact that the child’s biological parents were not married to each other at the time of birth did not alter or diminish their capacities as parents.
  • The child was not illegitimate. She was born of parents who were not married to each other at the time of her birth.
  • However, she was no longer illegitimate by reason of legitimation by the subsequentmarriage of her parents. Their marriage was properly solemnized and recognized. Hence, the child was rendered legitimate.
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