Whether an illegitimate child born outside of Malaysia to a Malaysian biological father and Filipino mother is entitled to become a Malaysian citizen?

CTEB & ANOR v KETUA PENGARAH PENDAFTARAN NEGARA, MALAYSIA & ORS [2022] MLJ 236 – FEDERAL COURT [CIVIL APPEAL NO: 01(i)-34-10 OF 2019(W)]

• CTEB was born in the Philippines on 27 September 2010 to his biological father, a Malaysian [the Father] and, his mother, a Filipino citizen of the Republic of Philippines [the Mother].

• At the time of CTEB’s birth, the Father and the Mother were not married therefore making CTEB illegitimate at the time of his birth (born out of wedlock). The registration of marriage was subsequently done five months after CTEB was born.

• In April 2011, an application for Malaysian citizenship was made on behalf of CTEB pursuant to Article 15A of Federal Constitution 1957 (“FC”), which provides the Federal Government special powers as it thinks fit to register a child. However, the application was rejected and is non-appealable.

• Subsequently, both the Father and Mother commenced proceedings at the High Court for a declaration that CTEB was a Malaysian citizen pursuant to Articles 14(1) (b) and 15(2) of the FC which governs the law of citizenship but was still dismissed.

• An appeal was then made to the Court of Appeal based on Article 14(1) (b) of the FC. Nevertheless the Court of Appeal rejected the appeal and upheld the decision made by the High Court. Both Courts have rejected the application primarily on the basis that if a child is born out of wedlock or prior to the registration of the parent’s marriage, the citizenship status of the child shall be determined by his mother’s citizenship status at the time of his birth. Hence, an appeal was made to the Federal Court.

• The Federal Court rejected the Parent’s appeal. There were two important points noted by the Federal Court.

• Firstly, the Federal Court held that Section 17 of Part III of the Second Schedule of the FC avers that in relation to Part III of the Second Schedule of the FC, the word ‘father’ shall be referred to as ‘mother’ at all cost in cases where an illegitimate child is involved. Therefore, the only clear meaning to be concluded here is that the child’s citizenship follows that of his mother.

• The Federal Constitution distinguished the importance of a legitimate and an illegitimate child. Only a legitimate child can be admitted as a citizen by operation of law.

• While CTEB’s biological father was a Malaysian citizen, and because of his illegitimate status since birth, CTEB cannot acquire the citizenship of his biological father. Instead, he will acquire the citizenship of his biological mother, a Filipino national.

• Secondly, the attempt by the Father and the Mother to legitimise CTEB after his birth cannot make him a citizen of Malaysia by operation of law under Article 14 of the FC.

• A person is only deemed legitimate from the prescribed date or date of the parent’s marriage. Thus, the subsequent marriage of the parents would not change the birth status of the Child as an illegitimate child. This effect cannot work retrospectively.