Francis D Netto v Ketua Pengarah Jabatan Pendaftaran Negara (WA-24-27-04/2023)

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1 DALAM MAHKAMAH TINGGI MALAYA DI KUALA LUMPUR DALAM WILAYAH PERSEKUTUAN KUALA LUMPUR (BAHAGIAN KUASA-KUASA KHAS) SAMAN PEMULA NO.: WA-24-27-04/2023 Dalam perkara Aturan-Aturan 7, dan 73 Kaedah-Kaedah Mahkamah 2012; Dan Dalam perkara Seksyen 25 Akta Mahkamah Kehakiman 1964; Dan Dalam perkara Bab-Bab VI dan VII Akta Relif Spesifik 1950; Dan Dalam perkara Perkara 14 dan Bahagian

Schedule

Jadual Kedua Perlembagaan Persekutuan. ANTARA 1. FRANCIS D NETTO (Sijil Kelahiran No. Daftar: CC39577) 2. NANCY D NETTO (Sijil Kelahiran No. Daftar: CC39576) …PLAINTIF-PLAINTIF DAN 1. KETUA PENGARAH PENDAFTARAN NEGARA 2. MENTERI DALAM NEGERI 3. KERAJAAN MALAYSIA …DEFENDAN-DEFENDAN GROUNDS OF JUDGMENT Introduction [1] By this Originating Summons the Plaintiffs seek to be recognised as Malaysian citizens, on the basis they are citizens by operation of law. Key background facts [2] The facts upon which this suit is premised, are not in dispute. [3] The Plaintiffs were born on 29.12.1994 and 28.11.1995 respectively at Taj Hospital, Jalan Ipoh, Kuala Lumpur. Their Birth Certificates state that Felix Aloysius DʼNetto (“Felix”) is their father and Melisa their mother. At the time of the Plaintiffs’ birth, Felix had a Malaysian identity card, but Melisa was the holder of an Indonesian Passport No.: B2142166. [4] When the Plaintiffs were born, both Felix and Melisa were not married. Their marriage was only registered on 24.10.2007 at JPN Daerah Kecil Gombak, Malaysia. [5] Felix passed away on 8.9.2013. [6] On 23.9.2022, upon the application of the Plaintiffs, the Shah Alam High Court declared them as the legitimate children of Felix and Melisa. [7] On 9.2.2023 and 3.7.2023, the Plaintiffsʼ solicitors, MahWengKwai & Associates wrote to the Embassy of the Republic of Indonesia to obtain confirmation as to whether the Plaintiffs are citizens of Indonesia. However, to date, the Embassy of the Republic of Indonesia has yet to provide any response regarding the same. [8] The Plaintiffs seek the following reliefs in this action: (i) A declaration that the Plaintiffs are both citizens of Malaysia by operation of law by virtue of their births within the Federation pursuant to Article 14(1)(b) and Part II Section 1(e) and Section 2(3) of the Second Schedule of the Federal Constitution; (ii) A declaration that the Plaintiffs are citizens of Malaysia by operation of law by virtue of the citizenship status of their father, Felix Aloysius DʼNetto (NRIC No.: 500221-10-5115) pursuant to Article 14(1)(b) and Part II Section 1(a) of the Second Schedule of the Federal Constitution; (iii) A declaration that the Plaintiffsʼ birth certificates (Register No.: CC39577 and Register No.: CC39576) dated 29.6.2020 issued by the 1st Defendant which registers the Plaintiffs as a non-citizen (bukan warganegara) instead of a citizen of Malaysia is an unlawful violation of the Plaintiffsʼ rights as a citizen of Malaysia; and (iv) An order that the Defendants reissue the Plaintiffsʼ birth certificates and register the Plaintiffs as citizens of Malaysia within 14 days from the date of service of this order on the Defendants; and (v) An order that the Defendants issue the Plaintiffs with a NRIC/MyKad that is blue in colour within 14 days from the date of service of this order on the Defendants. Contention of the Plaintiffs [9] The Plaintiffs’ case can be summarised as follows. [10] The Plaintiffs fulfil the requirements of Article 14(1)(b) and Part II Section 1(a) and Section 2(3) of the Second Schedule of the Federal Constitution as firstly, the Plaintiffs were born after Malaysia day, secondly, they were within born within the Federation and thirdly, one of the parents, namely Felix their biological father, was a Malaysian citizen at the time of their births. [11] The Plaintiffs rely on the cases of Madhuvita Janjara Augustin (suing through next friend Margaret Louisa Tan) v Augustin a/l Lourdsamy & Ors [2018] 1 MLJ 307 and Pendaftar Besar Kelahiran dan Kematian, Malaysia v Pang Wee See & Anor (applying on their behalf and as litigation representatives for Pang Cheng Chuen, a child) [2017] 3 MLJ 308 where the Court of Appeal in both cases held that the word “parent” in section 1(a) refers to a child’s biological parent, which would include the Plaintiffs’ biological father. [12] The Plaintiffs further contend that they also fulfil the requirements of Article 14(1)(b) and Part II Section 1(e) and Section 2(3) of the Second Schedule of the Federal Constitution as they were not registered as a citizen of any other country since their births on 29.11.1994 and 28.11.1995 respectively. Their affidavit filed in support affirmatively stated so. The Plaintiffs are effectively stateless. Contention of the Defendants [13] The Defendants contend that the Plaintiffs were born illegitimate as parents were not married at the time of their birth. Their parents’ marriage were registered only after the birth of both Plaintiffs. To rely on the provisions of section 1(a) of the Second Schedule, the Plaintiffs must be born to parents who were legally married. If they were not, section 17 of Part III of the Federal Constitution provides that reference to the parent or one of the parents of an illegitimate child, is a reference to his mother. [14] The Defendants rely on the Federal Court case of CTEB & Anor v Ketua Pengarah Pendaftaran Negara, Malaysia & Ors [2021] 4 MLJ 236 which held that in view of the operative provisions, the conclusion to arrive at is that the child’s citizenship follows that of his mother. In this case, their biological mother, Melisa is a citizen of Indonesia. [15] In addition, the Plaintiffs are not entitled to rely on the provisions of section 1(e), as they are regarded as having acquired the citizenship of their mother. The law of Indonesia regards an illegitimate child born to an Indonesian mother as a citizen of Analysis and findings of this court Whether the Plaintiffs are entitled to citizenship pursuant to Article 14(1)(b) read together with section 1 (a), Part II of Second Schedule of the Federal Constitution [16] The starting point for discussion is Article 14(b) of the Federal Constitution which states: Citizenship by operation of law 14. (1) Subject to the provisions of this Part, the following persons are citizens by operation of law, that is to say: (a) every person born before Malaysia Day who is a citizen of the Federation by virtue of the provisions contained in Part I of the Second Schedule; and (b) every person born on or after Malaysia Day, and having any of the qualifications specified in Part II of the Second Schedule. [17] The qualification the Plaintiffs rely on is section 1(a) of Part II of the Second Schedule which states: Part II [Article 14(1)(b)] CITIZENSHIP BY OPERATION OF LAW OR PERSONS BORN ON OR AFTER MALAYSIA DAY 1. 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, that is to say: (a) every person born within the Federation of whose parents one at least is at the time of birth either a citizen or permanently resident in the Federation. [18] Had the parents of the Plaintiffs been married at the time of their birth, their entitlement to citizenship under section 1(a) Part II would not present any difficulty. [19] As they were not, the question then is whether section 1(a) Part II is to be read together with section 17 Part III of the Federal Constitution. Section 17 provides as follows: For the purpose of Part III of this Constitution 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, and accordingly section 19 of this Schedule shall not apply to such a person. [20] It needs to be mentioned that Defendants do not dispute the fact that the biological father is a Malaysian citizen. However, they rely strongly on the Federal Court decision of CTEB. [21] In CTEB the child was born in the Philippines, to a Malaysian father and a Filipino mother. His parents were not married at the time of his birth. They registered their marriage some five months later. The parents applied for the child to be declared a Malaysian citizen by operation of law under Article 14 (1)(b) read with section 1(b) Part II. [22] The majority decision in CTEB was of the view that the supplementary provisions of section 17 Part III cannot be detached from the provisions of section 1(b) Part II, and is to be read together. Adopting this approach to construction of the relevant provisions, the only conclusion to be arrived at is that the child’s citizenship, determined at the time of birth, follows that of the mother. [23] The minority decision of CTEB (supra) held a contrary view. It was of the view that section 17 Part III should not be read as qualifying the application of section 1 (b) of Part II. As the minority decision of CTEB was later to gain significance in CCH & Anor v Pendaftar Besar Bagi Kelahiran dan Kematian, Malaysia [2021] 6 CLJ 471, it is proposed to set out the relevant portions of the judgment by the members of the minority judgment: [76] The logical conclusion therefore is that having regard to the historical and purposive cannons on construction as borne out from the foregoing interpretive exercise, the word ‘father’ in s 1(b) of Part II and anywhere else relevant to the context of this appeal ought to be construed as meaning ‘biological father’. Thus, the legitimacy status of any person claiming citizenship under art 14(1)(b) read together with Part II is an irrelevant factor in cases where paternity is known and the said biological father is a citizen of Malaysia and has met the rest of the requirements of s 1(b) of Part II. … [244] The proper construction of s 17 Part II is that the section makes provision for a child that is illegitimate, in that the child is born out of wedlock, and there is no legally acknowledged father either on the birth certificate or who comes forward to acknowledge paternity. In short, the absence of a father is the relevant situation in which the mother’s status confers citizenship by descent on the child. Put another way, in the absence of a father, the Malaysian mother may confer the right of citizenship by descent on the child. This ensures the child is not stateless. The section does not provide for a situation where there is a legally acknowledged father who is a Malaysian citizen. Even more so in the instant appeal where a marriage was contracted five months after the birth. [245] However, the nub of this construction is the fact of the existence of the father, a Malaysian citizen, who is thus entitled to confer citizenship by descent on the child. Section 17 Part III does not, and cannot, obliterate the fundamental basis of transmission of citizenship by reason of the blood tie. It does not envisage depriving the child of a Malaysian father of citizenship on the grounds of the lack of a legally recognised marriage. [246] Further, it is evident from a perusal of s 17 Part III that it provides for the mother’s status to substitute that of the father in s 1(b) Part II. That should only arise where there is no Malaysian father at all. It does not follow that the citizenship of a legitimate biological father of the child can be ignored in its entirety, simply because the father and mother are not married. [247] The doctrine of jus sanguinis or transmission by descent underlies the basis of art 14(1)(b) of the FC vide s 1(b) Part II. Citizenship by operation of law requires a blood relationship between the father and the child. In a case where such a blood relationship does subsist, it cannot be denied simply because the parents were not at the time of the birth, married. … [283] The issue in this appeal pertains to the acquisition of citizenship of this country by the first appellant. In my view, the first appellant has irrefutably satisfied the terms prescribed in art 14(1)(b) read with s 1(b) of Part II of the Second Schedule. The second appellant is the biological father of the first appellant. He is himself a citizen of this country as he was born in Malaysia. [284] In my view too, the fact that the first appellant’s father was not married to his mother at the time of his birth in the Philippines does not diminish his right to acquire citizenship by operation of law under art 14(1)(b). The second appellant remains the father of the first appellant, and the legal relationship between the father and mother of the first appellant does not alter the status of the first appellant. [24] In my view, the crucial point of the CTEB is that illegitimacy alone cannot determine the citizenship of the child. If the biological father can be identified, and he is a Malaysian citizen at the time of the child’s birth, he is able to transmit citizenship to the child by virtue of the blood tie. [25] The effect of decision of the minority of CTEB to the factual matrix of this case is this. The Plaintiffs’ biological father is a Malaysian citizen, and he is able to confer citizenship to them. The legal relationship of the parents at the time of birth cannot operate to deprive the Plaintiffs’ of their citizenship which they acquire by being born to a father who was a Malaysian citizen at the time of their birth. [26] Shortly after the decision in CTEB, CCH was decided. Although the factual matrix in CCH called for a construction of section 19B Part III, the Federal Court again reiterated that provisions on fundamental rights in the Federal Constitution must be construed as broadly as possible while provisions which limit those rights must be construed as narrowly as possible. Of pertinence, is the portion of the judgment which held as follows: [44] The principles of jus soli and jus sanguinis as well as the principles on how the FC was drafted to enable citizenship as broadly as possible while weeding out statelessness have been discussed in great length by the minority of this Court in CTEB (supra). We adopt the reasoning there as part of this judgment being the only other decision of the Federal Court apart from this one, to our knowledge, to have touched on this issue most recently. [27] Having set out the relevant passages of the minority judgment in CTEB which has been now upheld in CCH, I consider this court bound by the decision in CCH. [28] To recapitulate, a purposive cannon of construction must be taken when citizenship is in question. Section 17 has no application in a situation where there is a legally acknowledged father who is a Malaysian citizen. Applying the interpretation of the Federal Court to this case, the fact of illegitimacy of the Plaintiffs should not operate to deprive them of citizenship as their biological father was a Malaysian citizen. [29] I therefore find the requirements of section 1(a) Part II to have been fulfilled. The twin concepts of jus soli and jus sanguinis, essential to conferment of citizenship has been satisfied. (See: Pendaftar Besar Kelahiran dan Kematian, Malaysia v Pang Wee See & Anor (applying on their behalf and as litigation representatives for Pang Cheng Chuen, a child) [2017] 3 MLJ 308). [30] It therefore follows that the Plaintiffs are entitled to a declaration that they are citizens by operation of law pursuant to Article 14(1)(b) and section 1(a) Part II of the Second Schedule of the Federal Constitution. [31] In view of the above finding, I consider it unnecessary to deal with the question whether they are citizens by operation of law under section 1(e) Part II and Section 2(3) of the Second Schedule of the Federal Constitution. Conclusion [32] In the result, the specific orders to be issued are as follows: (i) A declaration that the Plaintiffs are citizens of Malaysia by operation of law pursuant to Article 14(1)(b) and Part II Section 1(a) of the Second Schedule of the Federal Constitution; (ii) An order that the Defendants reissue the Plaintiffsʼ birth certificates and register the Plaintiffs as citizens of Malaysia within 14 days from the date of service of this order on the Defendants; (iii) An order that the Defendants issue the Plaintiffs with a NRIC/MyKad that is blue in colour within 14 days from the date of service of this order on the Defendants; and (iv) No order as to costs. Dated: 26th February 2026 -sgd-Alice Loke Yee Ching Judge High Court Kuala Lumpur Counsel for Plaintiffs: Pn. Kirthika a/p Padmanapan Tetuan Mah Weng Kwai Counsel for Defendants: Ng Wee Li Federal Counsel Jabatan Peguam Negara