A child born in this country to a Malaysian father and a foreign mother is still a citizen of Malaysia, even if the parents were yet to register their marriage at the time of birth.
This was the gist of the landmark decision by the Ipoh High Court today, which allowed the citizenship suit by the five-year-old girl’s father, Ong Chin Hock. The 38-year-old father is married to a woman of Chinese nationality.
Online news portal The Malay Mail reported the family’s counsel Nicholas Kow as describing the ruling by judge Abdul Wahab Mohamed as a landmark decision.
“It is a landmark decision in a way because the father is a Malaysian, the child is born in Malaysia but the mother is a foreigner. This case has settled that the child will be a Malaysian citizen.
“So at least now the law has been settled by the virtue of this case. Every citizenship case is fact-centric. The facts of this case are totally different from other cases,” Kow was quoted as saying after proceedings today.
When contacted by Malaysiakini today, Andy Ooi Keng Liang, who is also part of the legal team representing the family, said the critical issue the court today decided on was whether a child, born illegitimate to a Malaysian father and a foreign mother, can be a Malaysian.
Two conditions
Previously, the government and the Registrar of Births and Deaths of Malaysia contended that the child, born at KPH Ipoh Specialist Hospital on June 14, 2016, was not a Malaysian citizen as her parents were not yet married at the time.
Later on Sept 9 that year, the parents registered their marriage at the National Registration Department, Putrajaya.
They had been applying for their child’s citizenship since 2017. In contrast to her, the girl’s younger brother, who was born on Sept 19, 2018, is a Malaysian citizen.
During proceedings earlier today, Abdul Wahab ordered the registrar to re-register the girl as a Malaysian citizen. The government and the registrar are the two defendants targeted by the originating summons.
The judge ruled that the child should be a Malaysian as she abides by two conditions under Article 14(1)(b) of the Federal Constitution. Article 14 deals with citizenship by operation of law.
“It is undisputed that the child was born in the country after Malaysia day.
“Secondly, the child also fulfils two qualifications in Part II of the Second Schedule which is Section (1)(a) and Section (1)(e),” Abdul Wahab said.
Section (1)(a), of Part II of the Second Schedule of the Federal Constitution, states that a person born within the federation, whereby at least one parent at the time of birth was either a citizen or permanent resident in the Federation, is a Malaysian citizen.
Meanwhile, Section (1)(e) states that a person born within the federation, who is not born a citizen of any country otherwise than by virtue of this paragraph, is a citizen of Malaysia.
No evidence
Abdul Wahab pointed out that there is no evidence the girl had any other citizenship or passport of any other country or had ever left Malaysia, since her birth.
“Accordingly, I find that the plaintiff has made out a case for this court to declare order in terms of the originating summons, Paragraphs 1 and 2, with no order as to cost,” the judge ruled.
According to Ong’s affidavit, the Ipoh High Court on Sept 4, 2019, had declared the girl as the legitimate child of the couple. Under Malaysian law, non-Muslim couples are permitted to legitimise their child through marriage later.
The father contended that on Nov 18, 2019, he and his wife received a DNA results report from the Chemistry Department of Malaysia that proved the girl was their biological child.
On behalf of his child, Ong then filed the originating summons at the Ipoh High Court in December, the same year.
Besides Kow and Ooi, the family was also represented by lawyer Ong Yu Shin.
When met by media after proceedings today, Ong reportedly said they are happy that the whole family can now be together.
“It’s a very long judgment with a total of 51 pages. In gist, I could say that the judge found that whether the parents legitimately married or not when the child was born was not really relevant in this case.
“This is because the girl was born in Malaysia after Malaysia Day and has no other passport or no other citizenship,” he said.
Senior federal counsel Ashyraf Ashyari Kamaruzaman appeared for the two defendants today.
Malaysiakini is attempting to reach out to the legal team of the defendants over the matter. - Mkini
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