Citizenship law in Malaysia is complex and highly regulated, particularly when it comes to children born out of wedlock to foreign parents. This case study examines the legal battle of Kenneth Loong Chet Ming and Irene Cheah Sook Yee, who sought to secure Malaysian citizenship for their adopted child, JLTX (name of the child is redacted to maintain anonymity), under Article 14(1)(b) of the Federal Constitution. The case highlights several critical issues within the Malaysian legal system, including the application of jus soli (citizenship by place of birth) and jus sanguinis (citizenship by blood), as well as the challenges faced by illegitimate children in acquiring citizenship. Despite the plaintiffs' efforts, the High Court ultimately dismissed their claim, demonstrating the stringent requirements of Malaysian citizenship law and the difficulties in proving statelessness. This case serves as an important example of how citizenship is determined in Malaysia, especially for children born in complex parental circumstances.
A. A FACTUAL BACKGROUND OF THE CASE
1. This case concerns a citizenship dispute initiated by the plaintiffs, Kenneth Loong Chet Ming and Irene Cheah Sook Yee, regarding their adopted child, JLTX, who was born out of wedlock in Malaysia. The plaintiffs sought a declaration that the child was a Malaysian citizen by operation of law, based on Article 14(1)(b) of the Federal Constitution, which deals with citizenship by birth.
2. Birth and Parentage: JLTX was born in Malaysia in 2016. The biological mother is a Vietnamese citizen, and the father's identity was initially not listed on the birth certificate. A DNA test later confirmed Kenneth Loong Chet Ming as the biological father. The biological parents were never married, making JLTX an illegitimate child under Malaysian law.
3. Adoption: In 2016, the plaintiffs legally adopted JLTX. Despite the new birth certificate listing them as parents, the child’s nationality remained “non-citizen,” following the biological mother’s citizenship status. The plaintiffs applied to the government for citizenship under Article 15A (discretionary citizenship), but it was rejected.
4. Court Application: The plaintiffs subsequently filed a suit against the Director General of the National Registration Department, for a declaration that the child was entitled to citizenship by operation of law under Article 14(1)(b), specifically Section 1(a) or 1(e) of the Second Schedule to the Federal Constitution.
B. LEGAL ISSUES
B1. SECTION 1(A) – CITIZENSHIP BY BIRTH WITHIN MALAYSIA, WHERE AT LEAST ONE PARENT IS A CITIZEN OR PERMANENT RESIDENT
5. The court held that since the child was illegitimate, Section 17 of Part III applied, meaning the child’s citizenship would follow that of the biological mother (Vietnamese). The court could not consider the father’s Malaysian citizenship, as the parents were unmarried at the time of birth.
B2. SECTION 1(E) – CITIZENSHIP FOR A CHILD BORN IN MALAYSIA WHO IS STATELESS AT BIRTH
6. The plaintiffs argued that JLTX was stateless since the child did not have any citizenship at birth. However, the court found that because the biological mother was Vietnamese, the plaintiffs failed to prove that the child did not acquire Vietnamese citizenship. Therefore, the court concluded the child was not stateless at birth, disqualifying the child from citizenship under Section 1(e).
C. JUDGMENT
7. The High Court dismissed the plaintiffs' application, ruling that JLTX did not qualify for Malaysian citizenship by operation of law under either provision. The court emphasized that the child’s illegitimacy and the mother’s foreign citizenship were determinative, and the child’s citizenship followed the mother’s nationality. Additionally, the plaintiffs did not provide sufficient evidence that the child was stateless.
8. This case reaffirms the strict interpretation of Malaysian citizenship laws, especially in cases involving illegitimate children born to foreign mothers. The court underscored the importance of adhering to the Federal Constitution's provisions, particularly in cases where the child’s lineage or status at birth is in question.
D. THE KEY TAKEAWAYS FROM THE CASE
9. This case directly engages with the interpretation and application of Malaysian citizenship laws, specifically within the framework of the Federal Constitution, and it highlights several key legal principles that are critical in determining citizenship by birth, particularly for children born out of wedlock to foreign mothers.
D1. CITIZENSHIP BY OPERATION OF LAW – ARTICLE 14(1)(B)
10. Article 14(1)(b) of the Federal Constitution states that individuals born in Malaysia can be citizens if they meet certain qualifications listed under the Second Schedule, primarily through jus soli (right of the soil, i.e., birth in Malaysia) and jus sanguinis (right of blood, i.e., parental citizenship).
11. This case illustrates how Malaysian courts apply these principles strictly, particularly in cases where one or both parents are non-citizens. The court held that citizenship could only be granted under Section 1(a) of the Second Schedule if at least one parent (either biological father or mother) was a Malaysian citizen or a permanent resident at the time of the child's birth.
12. For children born out of wedlock, the citizenship follows that of the biological mother if the parents are not married, regardless of the father’s citizenship. This is codified under Section 17 of Part III of the Federal Constitution and was applied in this case to rule that the child’s citizenship must follow that of the Vietnamese mother, even though the father was Malaysian. This strict application ensures clarity and uniformity in determining citizenship.
D2. ILLEGITIMATE CHILDREN AND CITIZENSHIP
13. In the Malaysian legal context, illegitimacy is a key factor in determining the citizenship of children born to foreign mothers. Section 17 of Part III makes it clear that for illegitimate children, references to “father” in the Constitution are treated as references to the mother. This provision essentially places the entire weight of citizenship determination on the mother’s nationality in cases where the child is born out of wedlock.
14. In this case, since the biological parents were not married at the time of birth, the child was deemed illegitimate, and the citizenship followed the Vietnamese mother, regardless of the father’s Malaysian citizenship. This strict distinction in treatment based on marital status is characteristic of Malaysian law, where legitimacy has long-lasting consequences on the rights of the child, including citizenship rights.
D3. STATELESSNESS AND SECTION 1(E)
15. Section 1(e) of the Second Schedule allows for citizenship by operation of law for children born in Malaysia who are “not born a citizen of any country.” However, this requires proof that the child was stateless at birth, meaning that they did not acquire citizenship from either parent.
16. In the Malaysian context, courts require clear evidence that the child is not entitled to citizenship from another country, a burden which was placed on the plaintiffs in this case. In this instance, the court found that the child’s Vietnamese mother likely conferred Vietnamese citizenship to the child, meaning that the child was not stateless at birth and therefore did not qualify for citizenship under Section 1(e).
17. The court’s decision illustrates that jus soli (birth in Malaysia) alone is insufficient to acquire Malaysian citizenship. Children must also be stateless at birth to qualify under Section 1(e), and parents have the burden of proving that the child has no claim to foreign citizenship. In this case, the plaintiffs could not prove that the child did not acquire Vietnamese citizenship, so the child did not qualify as stateless.
D4. REJECTION OF CITIZENSHIP APPLICATIONS
18. The plaintiffs initially sought citizenship for their child pursuant to Article 15A of the Federal Constitution, which allows for discretionary citizenship in special circumstances. However, that application was rejected, and this case underscores the limitations of judicial discretion when dealing with citizenship by operation of law. Citizenship under Article 14(1)(b) leaves no room for discretion as it is based strictly on constitutional provisions.
19. Malaysian courts, as demonstrated in this case, are bound by the Constitution to interpret and apply citizenship provisions rigidly, particularly when dealing with statelessness and jus sanguinis issues. The Federal Court decision in CCH v. Pendaftar Besar Kelahiran and other precedents affirm that citizenship by operation of law is a fundamental right, but only when specific criteria are met. This means the Federal Government cannot exercise discretion under Article 14(1)(b), as it applies automatically based on constitutional provisions.
D5. CHALLENGES IN PROVING STATELESSNESS
20. The burden of proving statelessness rests with the claimant, and in Malaysia, this has been strictly enforced by courts. In this case, the plaintiffs failed to prove that their adopted child had not acquired Vietnamese citizenship from the biological mother. Without such proof, the claim under Section 1(e) failed.
21. This decision reflects the high standard of proof required by Malaysian courts in statelessness cases. The presumption is that a child born to foreign parents will have the nationality of one or both parents unless proven otherwise. Parents seeking to claim statelessness for a child must provide substantial evidence to support that claim, a significant hurdle for those seeking Malaysian citizenship through Section 1(e).
E. CONCLUSION
22. In the Malaysian context, this case demonstrates the strict interpretation and application of constitutional provisions regarding citizenship by operation of law. It highlights the challenges faced by children born out of wedlock to foreign mothers in securing Malaysian citizenship. The court’s reliance on jus soli and jus sanguinis principles, the treatment of illegitimacy, and the difficulties in proving statelessness underscore the rigid nature of Malaysian citizenship law..
23. This case reinforces that Malaysian citizenship laws are primarily governed by the Federal Constitution, leaving little room for discretion or flexibility, especially in cases involving foreign-born parents or illegitimate children. The clear application of these principles serves to protect the integrity of the country’s citizenship laws while also ensuring that such significant rights are granted only when the constitutional criteria is fulfilled.