Citizenship under Article 14(1)(b) cannot be retroactively granted based on subsequent legitimacy; illegitimate children are subject to mother's citizenship status.

Zaleha Yusof JCA:

[1] The High Court at Kuala Lumpur had on 23 August 2017 dismissed the appellants' Originating Summons which inter alia sought for a declaration that the 1st appellant is a Malaysian citizen pursuant to art 14(1)(b) or under art 15(2) of the Federal Constitution ( FC ). Hence, the appeal before us by the appellant. However, before us, learned counsel for the appellants informed us that the appellants were not pursuing art 15(2) but confined their appeal to only art 14(1)(b) of the .

[2] The 2nd appellant, a Malaysian at the time of the birth of the 1st appellant, is the biological father of the 1st appellant. The 1st appellant's mother is a citizen of the Republic of the Philippines. The 1st appellant was born on 27 September 2010 in the Philippines but his biological parents only legally registered their marriage in Malaysia on 22 February 2011. Hence the 1st appellant was an illegitimate child at the time of his birth.

Issues

(1) Can a child born out of wedlock be regarded as a legitimate child for the purpose of art 14(1)(b) of the Federal Constitution , once his parents marry each other after he was born, hence s 17 of Part III of the Second Schedule is not applicable.

(2) Whether a child who has obtained a foreign citizenship is deprived of Malaysian citizenship.

Our Decision

[3] On the 1st issue, art 14(1)(b) of the Federal Constitution talks about citizenship by operation of law. However it needs to be read together with Part II and Part III of the Second Schedule of the FC . For ease of reference we reproduce the relevant provisions as follows:

Article 14(1)(b)

"Citizenship by operation of law

14(1) Subject to the provisions of this Part, the following persons are citizens by operation of law, that is to say:

(a) ...

(b) every person born on or after Malaysia Day, and having any of the qualifications specified in Part II."

Section 1 of Part II of the Second Schedule:

"1. Subject to the provisions of Part III, the following persons born on or after Malaysia Day are citizens by operation of law, that is to say:

(a) .....

(b) every person born outside the Federation whose father as at the time of the birth a citizen and either was born in the federation or of a State; and."

Section 17 of Part III of the Second Schedule

"Section 17 - For the purposes of Part III of this Constitution, reference to a person's father or this 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 s 19 of this schedule shall not apply to such a person".

[Emphasis Added]

[5] As alluded to earlier, the mother of the 1st appellant is a citizen of the Republic of the Philippines. Hence one of the qualifications of the citizenship by operation of law that the father, in this case, the mother, is a Malaysian citizen at the time of the 1st appellant's birth, by plain reading of the provisions of the FC , has not been fulfilled.

[6] However, learned counsel for the appellants argued that the 1st appellant's status had been legitimated since his biological parents subsequently married. Hence the 1st appellant is not illegitimate and reference to "person's father" or "parent" in s 17 of Part III are not to be construed as reference to his Filipino mother. Learned counsel found support in the provision of ss 3, 4 and 9 of the Legitimacy Act 1961 (LA1961); which for ease of reference are reproduced below:

Section 3

"(1) Nothing in this Act shall operate to legitimate a person unless the marriage