The Federal Court established that citizenship for children born out of wedlock is determined based on their birth status, not subsequent legitimation by parental marriage.

JUDGMENT

S Nantha Balan JCA:

Introduction

[1] The common question in the appeals before us is whether a child who is born in Malaysia, to a father who is a Malaysian citizen and the mother is a non-citizen (foreigner), and where the parents subsequently registered their marriage under the Law Reform (Marriage and Divorce) Act 1976, is a Malaysian citizen by operation of law pursuant to art 14(1)(b) read together with s 1(a) Part II of the Second Schedule of the Federal Constitution ("FC"). Hence, the issue is whether by reason of the subsequent legal marriage of the illegitimate child's parents, that child acquires the father's citizenship by descent (jus sanguinis) and therefore qualifies for Malaysian citizenship under the provisions of the FC.

[2] There are three (3) appeals before us and they shall be referred to collectively as "the appeals". They are:

(i) Civil Appeal No P-01(A)-321-06/2021 ("Appeal 321")

(ii) Civil Appeal No P-01(A)-322-06/2021 ("Appeal 322")

(iii) Civil Appeal No W-01(NCVC)(A)-191-04/2021 ("Appeal 191").

[3] These appeals are directed at the decision of the High Court in three (3) separate Originating Summons applications whereby rulings were made in favour of the applicants (respondents before us). The High Courts granted declarations in favour of the respondents who were declared to be citizens of Malaysia by operation of law pursuant to art 14(1)(b) of the FC read with s 1(a) Part II, Second Schedule of the FC.

[4] In each of the cases before the High Court, the rulings in favour of the respondents were anchored on the decision of the Court of Appeal in Madhuvita Janjara Augustin (Suing Through Next Friend, Margeret Louisa Tan) v. Augustin Lourdsamy & Ors, [2018] 1 MLJ 307 (CA) ("Madhuvita").

[5] Essentially in Madhuvita, the Court of Appeal ruled that the subsequent legitimation of the marriage of the illegitimate child's parents altered the status of that child and that the child is no longer regarded as illegitimate when seeking citizenship by operation of law. According to the Court of Appeal upon the legitimation of the parents' marriage, the relevant status of legitimacy of the child should be referenced to the time when the application for citizenship is made and not the illegitimate status at the time of birth.

[6] However, the Madhuvita jurisprudence was short-lived as the correctness of the Court of Appeal's decision was doubted and was overruled by the majority decision of the Federal Court in CTEB & Anor v. Ketua Pengarah Pendaftaran Negara, Malaysia & Ors, [2021] 4 MLJ 236 (FC) ("CTEB").

[7] The Federal Court's decision in CTEB was delivered after the High Court had rendered their decision in each of the applications which are now before us on appeal. It was common ground between all the counsel who appeared before us that in light of the Federal Court's decision in CTEB, Madhuvita is no longer good law. Thus, when the matter came before us, the legal position in relation to an illegitimate child's entitlement to Malaysian citizenship consequent upon the subsequent registration of the marriage between the Malaysian father and non-citizen mother, was as stated by the majority decision of the Federal Court in CTEB.

[8] Thus, it is the illegitimate status at the time of birth which is relevant and the subsequent legitimation of marriage of the parents did not alter the earlier illegitimate status of the child and in such circumstances, the illegitimate child will follow the mother's citizenship. These issues are elaborated further in this judgment. Consequently, in light of the Federal Court's ruling in CTEB, we found ourselves bound by the doctrine of stare decisis and were compelled to and did allow the appeals.

Appeal 321 (Brief Facts)

[9] In Appeal 321 the facts are as follows. The respondent, Go Fu Seng was born on 19 September 1999 in Malaysia. His biological father, Go Chin Au is a Malaysian citizen. Go Chin Au was married in Indonesia to Mdm Elisabeth Elbertus ("Mdm Elizabeth"), an Indonesian cit