Malaysian Citizenship & Stateless Children Special Series | Seeking Citizenship Through the Courts

⚖️ Parties to the Lawsuit & Legal Basis

Court Action Against:

When commencing legal proceedings, the respondents are typically the Director General of the National Registration Department (JPN) and the Government of Malaysia.

Core Legal Basis:

The primary legal foundation relied upon is Article 14(1)(b) of the Federal Constitution.

What is Article 14(1)(b) of the Federal Constitution?

This provision states that:

Any person born after Independence Day (31 August 1957) who satisfies any of the conditions set out in Part II of the Second Schedule is entitled to citizenship by operation of law.

In other words, citizenship is automatically conferred by law and does not require governmental approval.

Four Main Applicable Situations:

📌 A person born in Malaysia where at least one parent is a Malaysian citizen or Permanent Resident (PR)

📌 A person born overseas whose father is a Malaysian citizen and whose birth has been duly registered with the relevant Malaysian authorities

📌 A foundling discovered in Malaysia (who is presumed by law to be a citizen)

📌 Other special circumstances registered in accordance with the law

Courtroom Arguments: The Government’s Position vs The Applicant’s Response

In most cases, applicants reaching this stage have already submitted an application under Article 15A (special registration) and have waited between two and four years.

The common arguments presented in court are as follows:

Government Counsel’s Position (Delay-Based Argument):

📌 The Minister of Home Affairs requires time to properly consider the Article 15A application under the Citizenship Rules 1964

📌 Since the application remains under consideration, the applicant has not exhausted all available administrative remedies

📌 Therefore, court proceedings should not be commenced and the applicant should continue waiting for the outcome

Applicant’s Counsel’s Response:

📌 Article 14(1)(b) (citizenship by operation of law) and Article 15A (governmental discretion) are entirely separate legal provisions

📌 The court has full jurisdiction to determine citizenship matters

📌 There is no legal requirement that an applicant must first exhaust the Article 15A administrative process before pursuing a claim under Article 14(1)(b)

Typical Cases Falling Within Article 14(1)(b)

In practice, the strongest and most common cases generally satisfy the following three requirements:

📌 Condition A: The child was born in Malaysia

📌 Condition B: At least one parent was a Malaysian citizen at the time of the child’s birth (commonly arising where the parents did not register their marriage in time)

📌 Condition C: A clear DNA report is available to conclusively establish the identity of the biological parents

Key Area of Dispute: Illegitimate Children and Gender Equality

The Government’s Traditional Argument:

Government lawyers frequently argue that:

📌 The citizenship of an illegitimate child should follow that of the mother

📌 If the mother is a foreign national, the child should likewise be regarded as a foreign national

📌 Consequently, the child is not entitled to derive Malaysian citizenship from the father

The Strong Response Based on Article 8 (Equality Before the Law):

Applicants commonly rely on Article 8 of the Federal Constitution, which provides that:

📌 All persons are equal before the law

📌 No person should be discriminated against on the basis of gender or other prohibited grounds

If a father’s ability to transmit citizenship is denied solely because the parents were not legally married, such treatment may amount to:

📌 Gender discrimination

📌 A violation of the constitutional principle of equality