1. ) KETUA PENGARAH PENDAFTARAN NEGARA, MALAYSIA 2. ) PENDAFTAR BESAR BAGI KELAHIRAN DAN KEMATIAN, MALAYSIA 3. ) KERAJAAN MALAYSIA v QUAH ENG PANG

Case Significance

Applies section 17 of Part III of the Second Schedule to the Federal Constitution to hold that the citizenship of a child born out of wedlock follows the mother, so that a child of a foreign mother is not a citizen by operation of law through a Malaysian father.

This Court of Appeal decision at Putrajaya concerns the acquisition of Malaysian citizenship by operation of law by a child born in Malaysia to a Malaysian biological father and a foreign (Thai) mother who were not legally married at the time of the birth. The respondent had obtained declaratory orders from the High Court that she be registered as a Malaysian citizen and as the legitimate daughter of her biological father, and the government appellants, the registration authorities and the Government, appealed against that decision.

The central legal question was how the citizenship provisions of the Federal Constitution apply to a child whose parents were not married at the time of birth, and in particular the interpretation of Article 14(1)(b) read with section 1(a) of Part II and section 17 of Part III of the Second Schedule. Section 17 provides that, for the purposes of Part III, references to a person's father are, in the case of a child not born within a lawful marriage, to be read as references to the mother. The court applied the principle of jus sanguinis, citizenship by descent, and the binding Federal Court authority on the citizenship of children born out of wedlock, to hold that the citizenship of such a child follows the mother rather than the father. Because the respondent's mother was a Thai national, the respondent did not acquire Malaysian citizenship by operation of law through her father.

The court also considered whether the respondent had acquired citizenship by registration or naturalisation, and found that she had not discharged the burden of establishing any such acquisition, so that Articles 26 and 27 and the Citizenship Rules 1964 had no application. Concluding that the respondent was neither a citizen by operation of law nor by registration or naturalisation, and that the registration authorities had lawfully classified and registered her as a non-citizen, the court held that the High Court judge had erred, allowed the appeal, and set aside the declaratory orders. The judgment is a significant application of section 17 of Part III of the Second Schedule to the citizenship of a child born out of wedlock.