Court defers decision in citizenship appeal

PUTRAJAYA: A seven-member Federal Court bench has deferred its decision to a date to be fixed later in the appeal by a 10-year-old boy, who was born to a Malaysian father and Filipino mother, to get Malaysian citizenship.

Chief Justice Tun Tengku Maimun Tuan Mat who chaired the bench said the court reserved the judgment in the appeal, after hearing submissions from counsel Datuk Dr Cyrus Das and senior federal counsel Shamsul Bolhassan.

The other judges presiding were Court of Appeal president Tan Sri Rohana Yusuf and Federal Court judges Datuk Nallini Pathmanathan, Datuk Vernon Ong Lam Kiat, Datuk Zabariah Mohd Yusof, Datuk Hasnah Mohammed Hashim and Datuk Mary Lim Thiam Suan.

The father of the boy applied to the National Registration Department (NRD) for his child to be made a citizen of Malaysia but his application was rejected without any valid reason in 2012.

The boy, who was born in the Philippines to his parents, who married in Malaysia a few months after his birth, through his father, then filed an originating summons seeking for a declaration that the child is a Malaysian citizen and for an order to compel the NRD director-general to issue him a birth certificate and Malaysian identity card.

On Aug 23, 2017, the High Court dismissed the child’s originating summons ruling that he was not qualified to acquire citizenship by operation of law as at the time of his birth, the mother was not a citizen of the Federation of Malaysia.

He also lost his appeal which was dismissed by the Court of Appeal on Feb 14, 2019. He obtained leave to appeal to the Federal Court on Oct 15, 2019 on four legal questions for determination by the court.

In yesterday’s appeal proceeding conducted via Zoom, the court heard submission from Das who contended that it was the citizenship status of the father at the time of the birth of his child that was material and not the legitimacy of the child at the time of his birth.

He said Section 1 (b) of the Second Schedule in the Federal Constitution should not be read as providing for a discriminatory condition between legitimate and illegitimate children for qualification for citizenship.

Das, who appeared with counsel Sharmini Thiruchelvam and Francis Pereira, said if illegitimate children were to be excluded for citizenship, the constitutional framers would have expressly provided for that disqualification.

On Article 24 of the Federal Constitution which was the principal ground on which the Court of Appeal denied citizenship to the child, Das said the Article had no relevance to the facts of the case.

He said the boy having been born outside Malaysia, had to travel back to Malaysia and as such, had to naturally obtain a travel document at his birth place in order to enter Malaysia legally with his father.

“The child will relinquish and surrender his Philippine passport once a Malaysian citizenship is granted and would welcome any condition that is attached by the court to the granting of Malaysian citizenship,” he said

Shamsul, meanwhile, argued that the child was not entitled to attain citizenship because the Federal Constitution does not permit for an illegitimate child born to a non-citizen mother to gain Malaysian citizenship by operation of law.

He said the child was born out of wedlock to a non-citizen mother, adding that subsequent legitimisation of the child did not have the effect of changing the child’s birth status.

Shamsul represented the NRD director-general, secretarygeneral of the Home Ministry and the Government of Malaysia.