Federal Court: Illegitimate Child cannot be a Citizen by Operation of Law

The Federal Court in CTEB and CWB v Ketua Pengarah Pendaftaran Negara, Malaysia, Ketua Setiausaha Kementerian Dalam Negeri and Kerajaan Malaysia (Federal Court Civil Appeal No.: 01(i)-34-10/2019(W)) held on 28 May 2021 by a majority of 4 to 3 that an illegitimate child born outside Malaysia to a Malaysian biological father and a non-Malaysian mother is not entitled to become a Malaysian citizen by operation of law pursuant to Article 14 of the Federal Constitution (“FC”).
 
Background facts
 
The child, Chan Tai Ern Bermillo (“CTEB”), was born in the Philippines. His biological father, Chan Wai Boon (“CWB”), is a Malaysian and his mother, Maylene Venecio Bermillo (“Maylene”) is a citizen of the Republic of Philippines. At the time of CTEB’s birth, CWB and Maylene were not married. As such, CTEB was illegitimate at the time of his birth. CWB and Maylene legally registered their marriage in Malaysia five months after CTEB was born. An application for citizenship was made on behalf of CTEB pursuant to Article 15A of the FC, but the application was rejected. Article 15A of the FC provides that the “Federal Government may, in such special circumstances as it thinks fit, cause any person under the age of twenty-one years to be registered as a citizen”. The reason for this rejection is not clear from a reading of the decisions from all three tiers of the courts.
 
As the application for registration as a citizen was rejected, an application for a declaration that CTEB is a citizen of the Federation of Malaysia “by operation of law” under Article 14 of the FC was made on behalf of CTEB. The reliefs sought in this application included a declaration that CTEB was a Malaysian citizen under Article 14(1)(b).
 
Article 14(1)(b) (Citizenship by operation of law)
 
For the purpose of this case, the cumulative effect of Article 14(1)(b) and section 1(b) Part II of the Second Schedule of the FC provides that every person born outside Malaysia whose father is a Malaysian-born citizen at the time of the birth of that person, shall be a Malaysian citizen by operation of law.
 
What the High Court and Court of Appeal decided
 
The High Court (Chan Tai Ern Bermillo & Anor v Ketua Pengarah Pendaftaran Negara, Malaysia & Ors [2018] 1 CLJ 671) and Court of Appeal (Chan Tai Ern Bermillo & Anor v Ketua Pengarah Pendaftaran Negara & Ors) [[2020] 4 CLJ 597 both rejected the application principally on the ground that if a child is born out of wedlock or prior to the marriage registration of his parents, the citizenship status of the child is determined by his mother’s citizenship status at the time of his birth. The fact that CTEB was legitimated upon his parents’ marriage after his birth was immaterial to the interpretation of the relevant provisions of the FC. CTEB’s legitimacy had to be determined at the time of his birth.
 
The principal basis for this reasoning was that citizenship by “operation of law” was governed by Article 14(1)(b) of the FC with section 1 of Part II and section 17 of Part III of the Second Schedule to the FC. Section 1 of Part II of the Second Schedule to the FC is subject to the provisions of Part III of the Second Schedule. Section 17 of Part III of the Second Schedule (“Section 17”) expressly provides that ‘father’ for the purposes of Part III of the FC which governs the acquisition of citizenship, in relation to a person who is illegitimate, refers to his mother. As CTEB’s mother Maylene was not a citizen of Malaysia, Article 14(1)(b) was not applicable.
 
Federal Court – Majority decision
 
The majority judges, Tan Sri Rohana Yusof, Datuk Vernon Ong Lam Kiat, Dato’ Zabariah Mohd Yusof and Dato’ Sri Hasnah Dato Mohammed Hashim, whose decision was delivered by Tan Sri Rohana Yusof, President of the Court of Appeal, agreed with the lower courts that legitimisation of CTEB after his birth precluded him from being a citizen by operation of law under Article 14 of the FC because citizenship by operation of law must be determined at his birth, not after that, and because section 17 clearly provides that the citizenship of an illegitimate child follows that of his mother. The majority added that it is not the function of the Court to change the clear terms of the FC because the power to amend the FC lies in the Parliament pursuant to Art 159 of the FC and in adherence to the doctrine of separation of powers. The majority dismissed the argument that its interpretation was discriminatory and contravened Article 8 (right to life, including nationality) as Article 8 expressly authorises such discrimination.
 
Federal Court – Minority decision
 
The dissenting judges, the Chief Justice, Tun Tengku Maimun, Datuk Nallini Pathmanathan and Dato’ Mary Lim set out the following forceful and cogent arguments in their dissenting judgments:
  • The right of a person to citizenship comprises the right to liberty under Article 5(1) of the FC as well as the right of equality before the law and equal protection of the law under Article 8(1).
  • The word ‘father’ in Article 14 should be interpreted to mean biological father such that section 17 of Part III only applies in situations where the child does not know his father or that the status of the father is generally unknown.
  • Part III was meant to only serve as an aid to assist in the interpretation of Parts I and II and not to qualify or conditionalise the application of those Parts to Part III and certainly not to dilute the intent and purpose of the principal provisions.
  • The interpretation adopted by the lower courts discriminated against a person born illegitimately through no fault of his or her own. Such discrimination which would deny a person citizenship by operation of law had no nexus to any sound governmental objective or policy.
  • Section 17 as an interpretation provision was intended only to apply to instances where a person is illegitimate and who has no knowledge of who his or her biological father is. It does not envisage depriving the child of a Malaysian father of citizenship on the grounds of the lack of a legally recognised marriage.
  • The FC is to be interpreted harmoniously and in a broad, liberal and expansive sense as it is a living and organic document that is constantly being examined, explained and developed. Each of the fundamental constitutional principles in the FC is of equivalent importance and no one provision should be enforced so as to nullify or substantially prejudice or harm the other.
Comments
 
The majority decision is based on a literal interpretation of the provisions of the FC. The minority decisions, on the other hand, have pointed out the discrimination resulting from such a literal interpretation: discrimination against specifically the biological father; against illegitimate children as the jus sanguinis or ‘right of blood’ principle (which together with the jus soli or ‘right of soil’ / ‘place of birth’ principle have been incorporated into Article 14 and related provisions) would be rendered otiose in relation to illegitimate children; and against Muslims due to the definition of legitimacy under Muslim State Enactments. Ultimately, an illegitimate child such as CTEB who through no fault of his or hers would undoubtedly be an innocent victim of such an interpretation. This is a development that would come as a surprise to the original framers of the avowedly living and organic FC.
 
Commentary by Trevor Jason Mark Padasian (Partner) of the Family Law Practice of Skrine.