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Here’s how Malaysian dad’s three stateless kids were declared citizens: Court says not illegitimately born as parents customarily married

Malay Mail
Malay Mail

KUALA LUMPUR, Jan 24 — How did three siblings born in Malaysia to a Malaysian father become stateless? How did they become someone who is not a citizen of any country in the world?

It is all because of one thing: Their Malaysian father and non-Malaysian mother did not register their marriage with the government before they were born, and the government’s view is that this means they are illegitimate and can only take on the mother’s nationality.

But the three siblings — identified only as K1, K2 and K3 to protect their privacy — only know Malaysia as their home as they have lived here their whole lives, and their non-Malaysian mother has disappeared from their lives for more than a decade and cannot be traced.

These three siblings, now aged 26, 21 and 19, have been waiting for the past 13 years to be officially recognised as Malaysians and to hold Malaysian identity cards (MyKad) in their hands.

They tried applying again and again — since they were aged 13, eight and six — to be recognised as Malaysian, but the government repeatedly said no to their applications.

The first rejection letter stated the reason as their parents’ failure to register their marriage under the Law Reform (Marriage and Divorce Act) 1976 (LRA), while no reasons were given for the other rejections.

(The LRA is a law on marriages which applies only to non-Muslims in Malaysia, as marriages of Muslims are governed under state Islamic laws.)

The three siblings say their parents were married in a Chinese customary marriage or traditional Chinese wedding, although this marriage was not officially registered.

As the government typically took a few years to reply to each of their citizenship applications (under the Federal Constitution’s Article 15A which has an age limit of 21), by the time the two younger siblings made their fifth citizenship application in 2022, they would already be turning 20 and 18. The oldest child had by then already exceeded the age limit and could not make a fifth attempt under Article 15A.

On August 24 of that same year, the three siblings filed a lawsuit in the High Court in Kuala Lumpur against the national registration director-general, the Home Ministry secretary-general and the Malaysian government, to seek to officially be Malaysians.

The High Court decided that the three siblings are not illegitimate, as their parents’ customary marriage is still valid under the Federal Constitution (for the purposes of deciding whether the three children are Malaysians.) — Picture by Choo Choy May
The High Court decided that the three siblings are not illegitimate, as their parents’ customary marriage is still valid under the Federal Constitution (for the purposes of deciding whether the three children are Malaysians.) — Picture by Choo Choy May

The High Court decided that the three siblings are not illegitimate, as their parents’ customary marriage is still valid under the Federal Constitution (for the purposes of deciding whether the three children are Malaysians.) — Picture by Choo Choy May

So how did they win a court declaration which recognised them as Malaysians?

On July 10, 2023, High Court judge Datuk Amarjeet Singh Serjit Singh in a brief decision declared all three siblings to be Malaysians.

We now know the reasons, based on the judge’s 12-page written judgment released late last month. Here’s a quick summary by Malay Mail:

The short answer: The High Court decided that the three siblings are not illegitimate, as their parents’ customary marriage is still valid under the Federal Constitution (for the purposes of deciding whether the three children are Malaysians.)

Since the three siblings are not illegitimate, the effect is that they would not need to follow their non-Malaysian mother’s nationality.

To put it simply, the three siblings — based on the reason that they are not illegitimate — can then follow the Malaysian father’s nationality to be entitled to be Malaysian citizens. This is because they will be able to fulfil a citizenship requirement in the Federal Constitution: being born in Malaysia to at least one parent who is a Malaysian citizen or a permanent resident.

Two key points: Customary marriage valid + not illegitimate

Read here for the long answer in the judgment:

The judge noted that the government’s only reason for saying that the three siblings are not entitled to Malaysian citizenship is because the parents’ marriage was not registered under the LRA (even though they had a Chinese customary marriage), and that the government’s argument was that the children are illegitimate and a constitutional provision (Section 17) would mean they would follow the mother’s nationality to be Philippine citizens.

This constitutional provision is Section 17 of Part III of the Federal Constitution’s Second Schedule, which states that when a person is “illegitimate”, the words “father” or “parent” or “one of his parents” — in citizenship provisions in the Federal Constitution — will be interpreted to refer to the person’s “mother”.

(The effect of the government’s argument is this: Since the three siblings’ mother is not a Malaysian citizen, Section 17 would have prevented them from meeting the citizenship requirement of having at least one parent who is a Malaysian when they were born. This is because the only “parent” that would be applicable to their case is the non-Malaysian mother, based on how Section 17 works according to the government's view. This is even if their father is Malaysian.

In other words, Section 17 has the effect of denying Malaysian citizenship to the three siblings, based on how the law is interpreted by the government.)

The judge said the three siblings would have to be illegitimate for Section 17 to apply to them, and said the critical question is whether Section 17 requires the parents to be married through registration under the LRA or whether Section 17 does not recognise customary marriages.

“Looking at the issue in this way and applying the canons of constitutional interpretation set referred to above, I arrived at the conclusion that plaintiffs were not illegitimate for the purposes of citizenship under the Federal Constitution,” the judge said.

The judge then made two points or two reasons for his conclusions: Customary marriages are valid under the Federal Constitution so children born from such marriages are not illegitimate; and children born under customary marriages would be legitimate children when it comes to determining their citizenship.

Firstly, the judge pointed out that citizenship provisions — including the requirements to be a Malaysian citizen and how to interpret these requirements — are contained only in the Federal Constitution, and that this means the High Court could not look anywhere else — including the LRA — “to determine whether a child is illegitimate”.

The judge said he only has to look and interpret the constitutional provisions to decide whether a child is illegitimate.

The judge noted that before LRA was introduced as law in Malaysia, the Federal Constitution recognised customary marriages to be valid marriages, adding that he would continue to maintain this recognition of such customary marriages.

“Customary marriage was recognised and a valid marriage under the Federal Constitution prior to the coming into force of the Act. I find no reason to depart from that position.

“Therefore, a child is not illegitimate if his or her parents was married under customary marriage at the time of birth,” the judge said.

Secondly, as the right to Malaysian citizenship is a fundamental right, the judge said provisions in the law that limit or affect this right of citizenship “must be narrowly interpreted”.

“The word ‘illegitimate’ must be read to mean parents who are not married either by custom or registration under the Act.

“Thus, a child would be legitimate for the purposes of citizenship under the Federal Constitution even if his or her parents had only undergone a customary marriage,” the judge said.

(In other words, the judgment indicated that if parents had either married in a customary marriage or had a marriage that was registered, their child would not be considered to be illegitimate when it involves the question of whether the child is entitled to Malaysian citizenship. To recap, the government would use a child’s illegitimate birth — to a Malaysian father and non-Malaysian mother — to deny them Malaysian citizenship and to argue that they should take on the mother’s nationality.)

The judge then made two points or two reasons for his conclusions: Customary marriages are valid under the Federal Constitution so children born from such marriages are not illegitimate; and children born under customary marriages would be legitimate children when it comes to determining their citizenship. — Picture by Farhan Najib
The judge then made two points or two reasons for his conclusions: Customary marriages are valid under the Federal Constitution so children born from such marriages are not illegitimate; and children born under customary marriages would be legitimate children when it comes to determining their citizenship. — Picture by Farhan Najib

The judge then made two points or two reasons for his conclusions: Customary marriages are valid under the Federal Constitution so children born from such marriages are not illegitimate; and children born under customary marriages would be legitimate children when it comes to determining their citizenship. — Picture by Farhan Najib

For this citizenship case, the judge pointed out that the High Court was not looking at matters that would arise from the non-registration of marriages under the LRA.

After having concluded that the three siblings are not illegitimate, the High Court then proceeded to grant four of the court orders that they had sought, including a declaration that they are Malaysian citizens in line with Article 14(1)(b) read together with the Federal Constitution’s Second Schedule’s Part II’s Section 1(a).

Section 1(a) is the requirement for a person to be born in Malaysia and to have at least one parent who is a Malaysian citizen or a permanent resident in Malaysia at the time of their birth. Those who fulfil Section 1(a) are Malaysian citizens by operation of law (or in other words, entitled to Malaysian citizenship).

The other three court orders the High Court gave were for the government to issue birth certificates and identification cards (MyKad) stating the trio as Malaysian citizens within 30 days from the court orders, and for the national registration director-general to register and update the three siblings’ names in the registry.

The three siblings were represented by lawyer Larissa Ann Louis, while federal counsel Krishna Priya Veenagopal@Venugopal represented all three respondents.

While the High Court declared the three siblings as Malaysians, their journey to be recognised as citizens has not ended, as the government had on August 5, 2023 filed an appeal.

The appeal has yet to be heard as it is still in the preliminary stages. The Court of Appeal has scheduled today for case management of the government’s appeal.

This year, the three siblings will be turning 27, 22 and 20. In two months’ time, they would be marking the 14th year of waiting to be recognised as Malaysians.