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2021 MarsdenLR 3400
HIGH COURT MALAYA PULAU PINANG
CHEW CHIA CHIA & ANOR – Appellant
Versus
KETUA PENDAFTARAN KELAHIRAN DAN KEMATIAN MALAYSIA & ANOR AND ANOTHER CASE – Respondent
[Originating Summons No: PA-34-5-08/2019 & PA-34-7-11/2019]
The current legitimacy status of children born out of wedlock, following legitimation by marriage, determines their eligibility for Malaysian citizenship under Article 14 of the Federal Constitution.
Headnote:(A) Federal Constitution – Article 14 – Citizenship by Operation of Law – Applications for re-registration of citizenship status by children born out of wedlock – The court held that the current legitimacy status of the applicants is relevant for citizenship determination, referencing prior case law – Two conflicting Court of Appeal decisions addressed; preference given to Madhuvita's rationale. (Paras 19, 22, 34)
(B) Legitimacy – Distinguishing between illegitimate and legitimate status for citizenship – Under the Legitimacy Act, children can be rendered legitimate through subsequent marriage of parents, affecting citizenship eligibility. (Paras 22, 23, 34)
Facts of the case: The cases involved two families seeking Malaysian citizenship for children who were originally registered as non-Malaysians due to illegitimate birth status but were subsequently legitimated by parental marriage.
Findings of Court: The applicants were deemed Malaysian citizens by operation of law due to their legitimation status.
Issues: Whether the legitimacy status at birth or the current status should determine citizenship under the Federal Constitution.
Ratio Decidendi: The court followed the precedent established in Madhuvita, which prioritizes current legitimacy for citizenship purposes.
Result: Applications allowed.
Introduction
[1] There were two Originating Summonses before me: Suit PA-34-508-2019 where the applicants were Chew Chia Chia and Chew Chia Ching, minors suing through their father Chew Kean Yew ("Chew Suit"); and Suit PA34-7-11-2019 where the applicant was Go Fu Seng ("Go Suit"). They were represented by the same solicitor.
[2] The principal respondent in both suits was the "Ketua Pendaftaran Kelahiran dan Kematian Malaysia" (the 1st respondent in the Chew Suit and the 2nd respondent in the Go Suit). He was represented by Senior Federal Counsel.
[3] There was much in common in both cases. They both sought for an order that the Ketua Pendaftaran Kelahiran dan Kematian Malaysia re-registers their citizenship status as Malaysian premised on the same legal basis. Although it concerned two different families, the differences were nuanced and not determinative of the outcome. As such, at the request of all the parties, the two applications were heard together.
Preliminary Points
[4] Before I begin, there are a couple of preliminary matters that I best clarify at the outset.
[5] First, the Menteri Dalam Negeri was made the 2nd respondent in the Chew Suit and the Peguam Negara Malaysia was made the 1st respondent in the Go Suit. Their roles would prove to be nominal. No remedy was sought against them. They were also represented by Senior Federal Counsel and took a common stand with the Ketua Pendaftaran Kelahiran Dan Kematian Malaysia.
[6] Second, there was initially another remedy sought by the applicants in the Chew Suit. They had prayed for an order that the Ketua Pendaftaran Kelahiran Dan Kematian Malaysia re-registers Chew Kean Yew and Zheng Xiaohua as the biological parents of the applicants. However, that prayer was subsequently dropped in the course of submission.
Background
[7] The background facts are as follows.
The Chew Family
[8] Mr Chew Kean Yew, a Malaysian, is married to Ms Zheng Xiaohua, a Chinese national. Together, they have five children.
[9] Their first two children, Chia Ching (DOB 30 October 2011) and Chia Chia (DOB 3 November 2012), were born before they solemnised their marriage on 5 December 2012. Being illegitimate at birth, they were not accorded citizenship of their father and were registered as non-Malaysians. Subsequently, their birth status was legitimated by their parents' marriage and a High Court Order dated 1 August 2019, but their citizenship status remained unchanged.
[10] In or around 2016-2017, Mr Chew applied to the government for Chia Ching and Chia Chia to be Malaysian citizens under art 15A of the Federal Constitution (Special Power to Register Children).
The Go Family
[11] Mr Go Chin Au, a Malaysian, is married to Ms Elizabeth Albertus, an Indonesian now with permanent residence status in Malaysia. Together, they have two children.
[12] Their first child, Fu Sheng (DOB 19 September 1999), was born in wedlock - they were already married in Indonesia - but before they registered their marriage with JPN on 29 December 1999. Being legally illegitimate at birth, he was not accorded citizenship of his father and was registered as a nonMalaysian. Subsequently, his birth status was legitimated by the registration of his parents' marriage and by a High Court Order dated 3 October 2019, but his citizenship status remained unchanged.
[13] In 2017, Mr Goh applied to the government for Fu Sheng to be a Malaysian citizen under art 15A of the Federal Constitution (Special Power to Register Children).
No Response
[14] In both cases, the Ketua Pendaftaran Kelahiran dan Kematian Malaysia had not responded to their application for citizenship under art 15A of the Federal Constitution .
[15] Whilst waiting for their application under art 15A Federal Constitution (Special Power to Register Children) to be processed, they decided to simultaneously take a different route to try to procure citizenship.
[16] In 2019, they applied to this
