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Case Update: Federal Court confirms that illegitimate child cannot be a citizen of Malaysia by operation of law

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14 June 2021

CONSTITUTIONAL LAW
Citizenship – Illegitimate Child – Whether an illegitimate child born outside Malaysia, to a Malaysian biological father and a Filipino mother is entitled to become a Malaysian citizen by operation of law - Federal Constitution 1957, Article 14(1)(b), 15A & 15(2)

CTEB & Anor v Ketua Pengarah Pendaftaran Negara, Malaysia & Ors
[2021] MLJU 886, Federal Court
- see the grounds of judgment here

Facts Chan Tai Ern Bermillo (“1st Appellant”) was born in the Philippines on 27 September 2010 to Chan Wai Boon (“2nd Appellant”), his biological father, a Malaysian and Maylene Venecio Bermillo (“Maylene”), his mother, a citizen of the Republic of Philippines. At the time of the 1st Appellant’s birth, the 2nd Appellant and Maylene were not married therefore making the 1st Appellant illegitimate at the time of his birth. The registration of marriage was only done five months after the 1st Appellant was born. In April 2011, an application for Malaysian citizenship was made on behalf of the 1st Appellant pursuant to Article 15A[1] of Federal Constitution 1957 (“FC”) which was rejected and non-appealable. Both the appellants commenced proceedings at the High Court for a declaration that the 1st Appellant was a Malaysian citizen pursuant to Articles 14(1)(b)[2] and 15(2)[3]  of the FC which was dismissed. An appeal was made to the Court of Appeal based on Article 14(1)(b) of the FC only, which upheld the High Court’s decision. Both Courts rejected the application principally on the basis that if a child is born out of wedlock or prior to the marriage registration of his parents, the citizenship status of the child shall be determined by his mother’s citizenship status at the time of his birth. Hence, this appeal.

Issue Whether an illegitimate child born outside Malaysia, to a Malaysian biological father and a Filipino mother is entitled to become a citizen by operation of law pursuant to Article 14(1)(b) of the FC.

Held In dismissing the appeal, majority of the judges agreed with the lower courts’ decision that legitimisation of the 1st Appellant after his birth will not make him a citizen by operation of law under Article 14 of the FC. In order for Article 14 of the FC to be applied, it must be determined at the time of his birth, and not after. Section 17[4] of Part III of the Second Schedule to the FC also clearly provides that the citizenship of an illegitimate child follows that of his mother.

ZUL RAFIQUE & partners
{15 June 2021}
[1] Subject to Article 18, the Federal Government may, in such special circumstances as it thinks fit, cause any person under the age of twenty-one years to be registered as a citizen.
[2] Subject to the provisions of this Part, the following persons are citizens by operation of law, that is to say:
(b) every person born on or after Malaysia Day, and having any of the qualifications specified in Part II of the Second Schedule.
[3] 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.
[4] For the purposes of Part III of this Constitution references 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.

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