1. ) KOH THONG BEE 2. ) MYA THINZAR MAW 3. ) KOH MIAW XIN v 1. ) Ketua Setiausaha Kementerian Dalam Negeri 2. ) PENDAFTAR BESAR KELAHIRAN DAN KEMATIAN JABATAN PENDAFTARAN NEGARA MALAYSIA

Case Significance

A citizenship claim for an illegitimate child whose parents later married, dismissed because section 17 of the Second Schedule treats the 'parent' as the mother, barring transmission of the father's citizenship by descent.

This High Court decision concerns an application for a declaration that a child is a Malaysian citizen, advanced both by operation of law under Article 14(1)(b) of the Federal Constitution and by way of naturalisation under Article 19. The applicants sought to establish the citizenship of the third applicant, a child, and the case turned on the constitutional treatment of an illegitimate child whose parents had subsequently entered into a legal marriage.

The central question was whether such a child acquires the father's citizenship by descent — jus sanguinis — once the parents' subsequent marriage is taken into account, so as to qualify for citizenship by operation of law. That question depended in turn on a point of construction of the word "parent" as it is used in section 17 of Part III of the Second Schedule to the Federal Constitution, which provides that references to a person's parent, in the case of an illegitimate child, are to be read as references to the mother. If the operative "parent" of an illegitimate child is the mother, then the father's citizenship cannot be transmitted by descent to the child on the basis of illegitimacy alone, and a later marriage does not automatically confer the father's citizenship retrospectively. The alternative route of naturalisation under Article 19 is a discretionary avenue governed by its own conditions, not a matter of entitlement.

The Court concluded that the applicants had not established the child's entitlement to citizenship by operation of law on either constitutional footing, and dismissed the originating summons with no order as to costs. The judgment is a useful illustration of how the definition of "parent" in section 17 of the Second Schedule governs the transmission of citizenship by descent to an illegitimate child, and of the distinction between citizenship as of right by operation of law and the discretionary route of naturalisation under Article 19.