LETTER | Who to blame for the stateless child unrecognised by operation of law?

LETTER | The Federal Court has recently decided in a 4-3 split that a 10-year-old boy born to a Malaysian father and a Filipino mother, being illegitimate at the time of birth, is not entitled to Malaysian citizenship.

The case is controversial as according to the law, if the illegitimate child is instead born to a foreign father and a Malaysian mother, then he will be granted the nationality by operation of law (which means the citizenship flows automatically from law and not subject to the executive’s discretion). Hence, the decision by the apex court is seen as a failure to uphold gender equality.

The judgment of the majority can be succinctly summarised as follows:

Article 14(1)(b) of the Federal Constitution recognises a person (born after Malaysia Day) as a citizen of Malaysia if he fulfills the requirements in Part II of the Second Schedule. The controversy here lies squarely in Part II, as section 1(b) contained therein requires the child’s father to be a Malaysian citizen at the time of the child’s birth.

Apparently, this requirement is fulfilled. The child’s father is at all times a Malaysian. Unfortunately, the story gets complicated when the Federal Constitution expressly requires section 1(b) to be construed subject to Part III.

“Subject to the provisions of Part III of this Constitution, the following persons born on or after Malaysia Day are citizens by operation of law…” (emphasis mine). Referring to section 17 of Part III, ‘father’ in section 1(b) above has to be interpreted as ‘mother’ because of the illegitimacy of the child at his date of birth.

“… references to a person’s father or to his parent, or to one of his parents, are in relation to a person who is illegitimate to be construed as references to his mother…” (emphasis mine). Thus, section 1(b) has to be reread to require the child’s mother to be a citizen of Malaysia at the time of his birth. Regrettably, the mother is a foreigner, causing section 1(b) not to be fulfilled by the child to entitle him citizenship.

Hence, the story ends here. It is quite straightforward following the literal interpretation of the law. However, it can be noticed from the analysis above that the law brings varying results depending on the legitimacy of the child, coupled with his Malaysian parent’s gender. This gives rise to the issue of discrimination, particularly gender discrimination.

Nonetheless, discrimination can be lawful. Pursuant to Article 8(2):

“Except as expressly authorised by this Constitution, there shall be no discrimination against citizens on the ground only of…” (emphasis mine). The discrimination in the present case is authorised by Article 14(1)(b) read together with section 1(b) of Part II and section 17 of Part III. Hence, the discrimination is lawful.

Thus, the majority of the Federal Court reaches the decision that the child cannot be granted citizenship as his mother is not Malaysian, and the discrimination involved is lawful. The decision is in fact a natural consequence of adopting literal interpretation to give clear words in the Federal Constitution their plain and ordinary meaning.

For sure, it does not mean that such a conclusion is favourable and satisfactory. As conceded by Rohana Yusuf PCA:

“I, for one, am not in favour of such discrimination but it is beyond the jurisdiction of this court to bridge the discrimination, which the FC allows and in consonant with the clear text of Article 8. Article 8 permits constitutional discrimination because Article 8 says unless it is authorised by the FC then no discrimination is allowed. The function of the court is always to uphold and interpret the clear wordings of the FC or the law no matter how much it dislikes or how unpopular the result may be. Courts, unlike the politicians, do not have the business of seeking popularity by making popular decisions.” (emphasis mine)

Personally, I feel terribly sorry for the child. Although it is true to depict the court as the last line in defending the rule of law, justice and conscionableness, the court has to act according to the law, in the interest of consistency in the law.

It is only open to the court to “disobey” the law by propounding its unconstitutionality. Here, the law concerned is the provisions in the Federal Constitution, hence the court may not be able to declare the “constitution” as “unconstitutional”.

By virtue of Article 8(2), such a declaration is likely to be unsubstantiated and fruitless in the present case even if one resorts to the contentious doctrine of basic structure.

The other alternative to solving the dilemma is provided by the dissenting judgment written by the Chief Justice Tengku Maimun. Her ladyship’s judgment mainly rests on the purposive interpretation of the Federal Constitution. Such a solution might not be perfect as well, in light of the clear and unequivocal wordings of the law concerned. The reminder by Lord Diplock, imported by Suffian LP, and affirmed in the recent Federal Court case of Merck KGaA v Leno Marketing (M) Sdn Bhd (Registrar of Trademarks, interested party) [2018] 5 MLJ 1, is still echoing:

“Where the meaning of the statutory words is plain and unambiguous it is not for the judges to invent fancied ambiguities as an excuse for failing to give effect to its plain meaning because they themselves consider that the consequences of doing so would be inexpedient, or even unjust or immoral.” (emphasis mine)

The rationale above is especially so in the present case, where the purpose ascertained by the minority headed by the learned chief justice is not derived from a direct and clear Hansard or meeting minute, but by their inference. Every judge might have different inferences, thus compromising the consistency in the law.

Indeed, the dissenting judgment sheds light on overcoming the harshness of law in serving justice and I would be more than happy to see that judgment being adopted by the majority. But where the story turns out otherwise, the majority should not be blamed because of their different schools of thought in legal jurisprudence. After all, a prudent legal mind deserves its own credit. If there is someone to be blamed, it is the Parliament to which the judiciary owes its deference. As opined by Rohana Yusuf PCA:

“It is not the function of the court to change that clear terms of the FC because the power to amend the FC lies in the Parliament, pursuant to Art 159 of the FC and in adherence to the doctrine of separation of powers.”

Instead of finger-pointing, it is my recommendation to pressure the legislature for law reform.

The views expressed here are those of the author/contributor and do not necessarily represent the views of Malaysiakini.