End marriage-based citizenship discrimination

 By applying Section 17 strictly to deny citizenship, the law effectively perpetuates gender discrimination against Malaysian men and penalises children based on legitimacy.

From Dr Amar-Singh HSS, Hartini Zainudin and 28 others

Every child deserves the security of knowing where they belong. Nationality is more than a legal status as it is also the foundation of identity, protection and equal participation in society.

Yet for some children born and raised in Malaysia, this fundamental sense of belonging remains uncertain, not because of anything they have done, but because of their parents’ marital status at the time of birth.

The Court of Appeal recently dismissed the citizenship claims of two Malaysia-born adults raised their entire lives in Malaysia by Malaysian fathers. In both instances, their parents were unmarried, and their mothers left when they were very young.

However, both have official letters confirming they are not registered citizens of their mothers’ countries and have DNA evidence proving their paternity.

Sadly, both have just been told that none of that matters under the Federal Constitution, as it presently stands. In both cases, it was argued they should qualify under Section 1(e), Part II, Second Schedule, which grants automatic citizenship to a Malaysia-born child who is “not born a citizen of any country” – the constitutional safeguard against statelessness.

The court rejected this, holding that both were presumed capable of taking on their mothers’ nationalities, regardless of the fact that both mothers had disappeared from their children’s lives decades ago. The judgment relied heavily on other Federal Court decisions and Court of Appeal rulings.

By applying Section 17 strictly to deny citizenship, solely because the unmarried parent is the father, the law effectively perpetuates gender discrimination against Malaysian men and penalises children based on legitimacy.

Just as recent constitutional amendments recognised the equal right of Malaysian mothers to confer citizenship, Section 17 must be given a purposive, harmonious interpretation alongside Article 8(2) of the Federal Constitution – which explicitly prohibits gender discrimination – so that “parent” includes a Malaysian father.

The deeper question is whether this framework still deserves to stand in 2026. The constitutional provisions being applied here were drafted in 1957 in a world where legitimacy carried heavy legal weight, DNA testing did not exist, international mobility was rare and preventing dual nationality was a central policy concern.

Paternity among the unmarried could not be proven reliably, so the law defaulted to the mother.

That justification has largely disappeared. DNA testing can now establish paternity with near certainty. Children’s rights have become a principle of international human rights law.

Many countries have abolished the legal distinction between “legitimate” and “illegitimate” children.

Statelessness, once a marginal concern, is now recognised globally as a serious, generational harm.

Malaysia is not unique in having once tied citizenship to legitimacy but is increasingly an outlier in still doing so.

Broadly, four approaches exist internationally:

1. Citizenship follows either parent, regardless of marital status. The operative legal question is simply “is this your biological or legally recognised child?”, not “were you married?”

2. A legitimation cure. Some jurisdictions allow citizenship to be secured later through subsequent marriage, judicial declaration of paternity, or DNA proof.

3. An anti-statelessness backstop. Some countries confer citizenship automatically, wherever the alternative is a child with no nationality at all.

4. A strict lineage approach. This continues to penalise children born to Malaysian fathers outside of a legal marriage, placing Malaysia in a rapidly shrinking minority.

The present framework says something quite stark: that a child should bear the legal consequences of their parents’ marital status. Malaysian father, DNA-proven paternity, 30 years raised in Malaysia, no ties whatsoever to the mother’s country of origin – all of this is legally irrelevant. The only fact that matters is whether a marriage certificate existed at the time of birth.

That is the wrong question. The right questions are: who is this child, where do they actually belong, and what happens if no state will claim them?

The right answer to all these questions would be that these children raised in Malaysia, educated in our schools, and rooted in our communities owe their sole allegiance, attachment and loyalty to Malaysia.

Malaysia has shown that things can change. In October and December 2024, Parliament passed the Constitution (Amendment) Bill 2024, which allows Malaysian mothers to automatically confer citizenship on their children born overseas.

It was a hard-won, decade-long campaign that proves Parliament can and will revisit citizenship provisions when the underlying unfairness is exposed. The precedent matters: constitutional citizenship law in Malaysia is not frozen.

There are realistic paths forward, none of which require abandoning legitimate immigration control:

1. Strengthen the anti-statelessness safeguard. Section 1(e) exists precisely to prevent statelessness. Where a child was born in Malaysia, has no practical route to another nationality as certified by the relevant embassy, and has been raised in Malaysia, that safeguard should function as intended, rather than being defeated by a theoretical claim to a foreign nationality the child has never been able to access.

2. Introduce judicial or administrative discretion for cases of long-term residence, education in Malaysia, absence of any foreign citizenship, and abandonment by the foreign parent so that individual injustices do not have to wait for wholesale legislative reform.

3. Guarantee equal citizenship rights for children of either Malaysian parent. Children of a Malaysian citizen, whether mother or father, should be able to obtain citizenship irrespective of gender, marital status, or place of birth.

4. Recognise proven biological paternity as a pathway to citizenship. Where the father is still alive and DNA evidence conclusively establishes paternity, a Malaysian father should be entitled to confer citizenship to his child as an available legal route, placing paternal biological reality above marital status.

The home ministry and national registration department must actively assist applicants and establish expedited processing timeframes, in alignment with the best interests of the child.

Where does this go next? The Court of Appeal has answered what the law currently is.

Whether the law should remain this way is now a matter for Parliament and, where constitutional interpretation allows it, the Federal Court.

The global direction of nationality law has moved away from punishing children for the circumstances of their birth, and towards recognising proven parentage, genuine connection to the state and prevention of statelessness as guiding principles.

Malaysia took a step in that direction in 2024 for children of Malaysian mothers born abroad. The same principle should be extended to Malaysia-born children of Malaysian fathers, whatever their parents’ marital status.

The debate, when it happens, should begin with a single question: who should bear the consequences of an adult’s choices, the parent or the child? Two Malaysia-raised adults, now in their late 20s, are still waiting for an answer. - FMT

This statement was endorsed by 18 organisations and 12 people, including consultant paediatrician Dr Amar-Singh HSS and child activist Hartini Zainudin.

The views expressed are those of the writers and do not necessarily reflect those of FMT. - FMT