KUALA LUMPUR, July 22 — The Court of Appeal today unanimously decided that two persons who were born in Malaysia are not entitled to be Malaysian citizens under the Federal Constitution, as their biological Malaysian fathers were not married to their non-Malaysian mothers when they were born.

Court of Appeal judge Datuk Azhahari Kamal Ramli, who chaired a three-judge panel, said the High Court was correct in deciding to reject their bid to be recognised and declared as Malaysians.

Azhahari ultimately concluded that the Kuala Lumpur-born woman (identified only as J for privacy purposes) has to follow her Indonesian biological mother’s citizenship, and that the man born in Teluk Intan, Perak (identified only as D) has to follow his Filipino mother’s citizenship.

Both J’s and D’s biological non-Malaysian mothers have disappeared from their lives since they were young, and both had studied and lived in Malaysia their whole lives while being raised by their Malaysian fathers.

Here’s a quick recap of the facts in their cases based on court documents, and what the Court of Appeal decided today:

The Court of Appeal said Malaysia-born children have to follow their mother's citizenship status, if the child is illegitimate or born when the parents were not married. — File picture by Devan Manuel

The case of J: Birth certificate once recorded her as Malaysian, had a Malaysian passport  

 J, who will be turning 30 this year, has a DNA test to show her biological ties to her Malaysian father.

Her Malaysian father has been caring for her since young, as her Indonesian mother had ran off and been uncontactable since she was three.

J’s initial birth certificate in 1996 was issued without stating her citizenship status, as this was not part of birth certificates’ format then.

J’s second birth certificate issued in 2004 in an updated format states that she is a Malaysian, and she was issued a Malaysian passport in 2006.

But when her father applied for her Malaysian identity card when she turned 12, J’s birth certificate was amended to show her status as “non-citizen” as her parents were unmarried at the time of her birth. 

The Home Ministry rejected her citizenship applications four times in 2010, 2012, 2015 and 2021 without giving any reasons, while J said the National Registration Department (NRD) in 2023 did not allow her to apply for citizenship via naturalisation under the Federal Constitution’s Article 19.

The four citizenship applications that the Home Ministry had rejected were made under the Federal Constitution’s Article 15A (which J could only use before she hit the age limit of 21), while the Article 19 route was the only citizenship route available to her once she turned 21.

The NRD had in court documents denied not allowing J to even try to apply for citizenship under Article 19, as it said there were no documents that could prove that she applied or that the NRD had made any decision.

J says she has no ties to Indonesia and is now stateless, and a letter from the Indonesian Embassy here certified that she is not registered as an Indonesian citizen.

D had unsuccessfully tried to apply for Malaysian citizenship several times before coming to court. — Picture by Sayuti Zainudin

What the Court of Appeal decided

In online court proceedings via Zoom, Court of Appeal judge Azhahari said J could not be a Malaysian even though the identity of her Malaysian biological father is known.

This is because her parents were not legally married when she was born and she is considered as an illegitimate child, which means that Section 17 of the Federal Constitution’s Second Schedule’s Part III applies to J’s case.

Under Section 17, an illegitimate child’s parent can only refer to the child’s mother, the court said.

J had wanted to be declared a Malaysian citizen under the Federal Constitution, specifically Article 14(1)(b) and Second Schedule’s Part II’s Section 1(a).

The judge said J must fulfill all requirements under Section 1(a) to be a Malaysian, namely “jus soli” (by being born in Malaysia) and “jus sanguinis” (through lineage).

Section 1(a) required J to be born in Malaysia and have at least one parent who is a Malaysian citizen or permanent resident when she was born, but Section 17 would mean that her “parent” can only refer to her non-Malaysian mother.

“Since the plaintiff’s parents were not legally married, ‘whose parents’ in Section 1(a) must be construed as reference to ‘mother’. Since plaintiff’s mother is not a Malaysian citizen but an Indonesian citizen, the plaintiff has failed to satisfy jus sanguinis and is therefore not entitled to citizenship under Section 1(a),” the judge said, referring to J as the plaintiff.

J had also wanted to be declared a Malaysian citizen under Section 1(e) of the Federal Constitution’s Second Schedule’s Part II, which enables automatic Malaysian citizenship for Malaysia-born children who are “not born a citizen of any country”.

J had argued that Section 1(e) is meant to prevent children born in Malaysia from becoming stateless, or persons who are not citizens of any country in the world.

But Azhahari said J cannot be considered as stateless as she could take on her mother’s Indonesian citizenship: “We have already concluded in cases of illegitimate children born out of wedlock, and where Section 17 applies, the citizenship of the plaintiff would follow the citizenship of the mother.”

For Section 1(e), the judge said J also had to satisfy “jus sanguinis”, but said she failed to do so, as she could not trace her lineage to her Malaysian father who was not married at the time of her birth.

As for the initial birth certificate which recorded J as a citizen and the Malaysian passport issued to her, the judge said this was due to initial incorrect information given to the authorities.

What about D’s case?

D, who will turn 28 this year, said his biological Filipino mother left him when he was just a few months old, and said he does not know where she is and had never been to the Philippines.

D said he only had his Malaysian biological father his whole life, but is now alone as his father had died in 2022.

D also has a DNA test confirming that he is the biological son of his Malaysian father.

D also has a letter from the Philippine Embassy in Kuala Lumpur which certified that his birth had never been reported there and that he had never applied or been issued a Philippine passport.

D said his future is uncertain and he cannot live a normal life as a stateless person in Malaysia, and said ignoring his father’s Malaysian citizenship status because his parents were not married is gender discrimination. 

An SPM graduate, D said he faces difficulties as a stateless person, such as to continue his studies, to get a driving licence, to open bank accounts or apply for bank loans, to do online transactions, or to find work.

But applying all the same reasons in J’s case, Azhahari also read out the Court of Appeal’s unanimous decision to reject D’s citizenship bid under Section 1(a) and Section 1(e), and also said D is not stateless as he could trace his citizenship to his Filipino mother.

The Court of Appeal’s decision today was largely based on a Federal Court’s 2021 decision in CTEB’s citizenship case, as well as past Court of Appeal decisions in other citizenship cases.

Lawyer Larissa Ann Louis represented both J and D, while federal counsel Ng Wee Li appeared today for the National Registration Department’s director-general, the Home Ministry’s secretary-general and the Malaysian government.

The other two judges on the panel today are Datuk Faizah Jamaludin and Datuk Hayatul Akmal Abdul Aziz.

Last month, the same Court of Appeal panel had also rejected the citizenship appeals of three Malaysia-born children in similar situations of being born when their Malaysian fathers were not married to their non-Malaysian mothers.

They can still appeal to the Federal Court against the Court of Appeal’s decision, and one of them — Haritharan Mugunthan — had already confirmed via his lawyer that he would be appealing.