Citizenship by operation of law is determined at birth, and illegitimate children follow the citizenship of their mother, as clarified by the Federal Court's ruling in CTEB.

JUDGMENT

Amarjeet Singh Serjit Singh J:

Introduction

[1] The question in the instant judicial review proceeding is whether a child who is born in Malaysia, to parents who were not married at the time of his birth, and where the father is a citizen of Malaysian and the mother is a non-citizen, qualifies as a Malaysian citizen by operation of law pursuant to art 14(1)(b) read with s 1(a) or 1(e) of Part II of the Second Schedule of the Federal Constitution .

[2] On 4 June 2024, I refused to grant the declaration sought, ie that the child is a citizen by operation of law pursuant to art 14(1)(b) read with s 1(a) of Part II of the Second Schedule of the Federal Constitution and the consequential order of mandamus directing the Director General of Births and Deaths ("Director General") to issue a birth certificate that reflects the child's nationality as a citizen of Malaysia within 14 days of the order.

[3] The names of the child and the 1st applicant, the father of the child, are redacted to maintain anonymity.

[4] For the sake of brevity, unless otherwise stated, all references in this judgment to "Articles" and "Second Schedule" are to that of the Federal Constitution . Similarly, and unless otherwise stated, any references to Part II or Part III are to that of the Second Schedule of the .

Background Facts

[5] The child was born on 19 March 2017 at Hospital Kuala Lumpur. His biological mother is a citizen of Vietnam whereas his biological father is a citizen of Malaysia. The biological parents were not married at the time of the child's birth. Since there was no marriage between the parents at the time of birth the child was an illegitimate child. Based on this information, at the time of registering the birth of the child at the National Registration Department ("NRD"), a birth certificate was issued on 30 March 2017 depicting the child as a "non-citizen".

[6] On 28 August 2017, some 5 months after the birth of the child, the biological father and biological mother married by registering the marriage under the Law Reform (Marriage and Divorce) Act 1976.

[7] On 23 May 2023, the father, by a letter through his solicitors applied for citizenship under art 14(1)(b) of the Federal Constitution . The letter was addressed to the 1st, 2nd, 3rd and 4th respondents. In the absence of a response, the applicants filed these judicial review proceedings for the said orders.

[8] By way of observation, there is no provision to make such an application by letter or otherwise as was made by the applicants. The respondents being creatures of statute had no jurisdiction to do what was asked of them. The proper thing was to seek a declaration from the High Court as to the child's status of citizenship by way of an originating summons. Nothing turned on this issue and I proceeded to hear the merits of the application.

The Submissions

[9] In their written submissions, the applicants submitted the classification as non-citizen ought to be reviewed on the following grounds: (i) the classification is ultra viresart 14(1)(b) read with s 1(a) of Part II of the Second Schedule; (ii) the factor of illegitimacy is irrelevant and wrongly considered; and (iii) the child had a legitimate expectation to be classified as a citizen of Malaysia. It is to be noted that there were no submissions made on s 1(e) of Part II although this ground was pleaded in the O 53 Statement in support of the application.

[10] Article 14(1)(b) and s 1(a) of Part II were reproduced to show that the conditions to qualify as a citizen therein had been satisfied by the 2nd applicant, namely: (a) the person must be born after Malaysia Day; (b) the person must be born within Malaysia; and (c) one of the parents, at the time of birth, is a citizen of Malaysia (in the instant case was the 2nd applicant's father).

[11] In support, the applicants also cited the following cases which established, as trite law, that both the concepts of jus soli (citizenship based on birthplace) and jus sanguinis (ci