Introduction – Citizenship of Children
Citizenship of children is a real problem. Under the law, citizenship of a child follows that of the father, if the mother was married when the child was born. However, citizenship of the child will follow the mother, if the mother was not married when the child was born.
For many Malaysian men who married foreign women, their first child may have been born before the marriage was registered. Thus, for many years, the citizenship of children born out of wedlock to foreign mothers (i.e. unmarried foreign women) was deemed to follow the foreign mother.
Take, for example, a true case that we had encountered during our work.
Ah Chong (Malaysian man) had a relationship with Pim (Thai woman). Ah Chong brought Pim over to Malaysia with the intention of marrying her. Pim was heavily pregnant, in the late stages of her pregnancy. Ah Chong hoped that his child would be a Malaysian.
Before the marriage could be registered, Pim gave birth to their child, James. James’ birth was registered at the Jabatan Pendaftaran Negara, but James did not get Malaysian citizenship.
Ah Chong and Pim subsequently got married, and Pim gave birth to two other lovely children. The two younger children had MyKad (identity cards) and Malaysian citizenship. But their eldest child, James, was without Malaysian citizenship for many years.
Ah Chong and Pim would face many problems, from enrolling their child into the government school to getting his MyKad. James would not be able to vote as a citizen until he got his citizenship.
Over the years, Ah Chong would take DNA tests to show that he was the biological parent of James, in his bid to apply for citizenship through the Jabatan Pendaftaran Negara. His application would be rejected, twice.
But Ah Chong never gave up hoping that his son, James, would be a Malaysian.
Landmark Decision on Citizenship of Children
In November 2017, the Malaysian Court of Appeal delivered a landmark decision on the citizenship of children.
The case, Madhuvita Janjara Augustin (suing through next friend Margaret Louisa Tan) v Augustin a/l Lourdsamy & Ors [2018] 1 MLJ 307, was notable because the Court of Appeal took a different approach to the question of citizenship of children born out of wedlock to foreign mothers.
Some brief facts follow.
Madhuvita was born in 2005 in Malaysia. Her father was Malaysian, and her mother was a citizen of Papua New Guinea. Unfortunately, when she was born, her parents had not yet been married.
Madhuvita’s parents married in January 2006, but did not register her birth. Only when Madhuvita’s parents wanted to enrol her in school, did they realize that her birth certificate was missing.
Thus, in April 2011, Madhuvita’s parents registered her birth, and obtained her birth certificate.
The birth certificate stated that Madhuvita was not a Malaysian.
In dismay, Madhuvita’s parents applied to court for her to be made a citizen of Malaysia.
At the High Court, Madhuvita’s parents’ application was rejected because her parents were not married at the time of her birth.
At the Court of Appeal, Madhuvita’s parents’ application was allowed!
Unless there’s any appeal in this matter, this decision from the Court of Appeal would be binding upon High Courts all over Malaysia.
Let’s dive into the legal provisions that affect applications for citizenship of children under the Federal Constitution.
Federal Constitution Provisions on Citizenship of Children
Her parents relied on Article 14(b) of the Federal Constitution, which allows anyone who was born after Malaysia Day (i.e. after the formation of Malaysia), and qualified according to the Federal Constitution, to apply for Malaysian citizenship.
“Qualified” means, qualified according to Part II, Schedule Two of the Federal Constitution.
Section 1, Part II of Schedule Two says, anyone in the following categories, born after Malaysia Day, is a citizen by operation of law. There are 5 categories.
First Category
A child born within Malaysia, who at the time of his birth, has at least one parent who is a Malaysian or permanent resident in Malaysia.
Second Category
A child born outside Malaysia, who at the time of his birth, his father was a Malaysian by birth, and his father was either born in Malaysia or working for the Malaysian government or one of its states.
Third Category
A child born outside Malaysia, who at the time of his birth, his father was a Malaysian, and the child’s birth was registered within a year (or more, as allowed by government) with a consulate of Malaysia, or with the Malaysian government.
Fourth Category
A child born in Singapore, who at the time of his birth, had at least one Malaysian parent, and not born as a Malaysian citizen except through Part II, Schedule 2 of the Federal Constitution.
Fifth Category
A child born in Malaysia, who was not born as a citizen of any country except through Part II, Schedule 2 of the Federal Constitution.
The Court of Appeal Decision
The Court of Appeal decided that the matter was within their jurisdiction. The precedents cited did not say that the issue was “non-justiciable”, only that caution should be exercised.
The Court of Appeal felt that the concepts of “jus soli” and “jus sanguini” underline the provisions of the Federal Constitution, and should be adhered to.
When Madhuvita was born, Madhuvita’s father was a Malaysian. Madhuvita was also born in Malaysia.
Thus, the Court of Appeal felt that Madhuvita fulfilled section 1(a) of Part II, Second Schedule, Federal Constitution.
What about the fact that Madhuvita’s parents were not married at the time of Madhuvita’s birth?
Because Madhuvita’s parents subsequently married, she became legitimised under the Legitimacy Act 1961.
Legitimacy came to Madhuvita the day her natural parents (one of which was Malaysian) got married.
There was another factor that influenced the Court of Appeal’s decision. Madhuvita’s birth had not been registered in Papua New Guinea!
If her application for citizenship had been rejected, Madhuvita would have become stateless.
Before we end: a technical point arises. Do adopted children qualify to apply for Malaysian citizenship under the same provisions? In the case of adopted children, it might depend on whether the adopted child has a birth certificate. It’s difficult to prove that the child’s father or mother was Malaysian without such a certificate.
Disclaimer
While this article has been prepared to provide information to the general public, your case might be different. Kindly consult with a lawyer before you make any conclusions.
If you are seeking advice on citizenship of children, please get in touch with us for a consultation.