Chan Tai Ern Bermillo & 1 lagi v Chan Tai Ern Bermillo & 1 lagi (W-01(IM)(NCVC)-360-10/2017)

CHAN TAI ERN BERMILLO (NO. PASSPORT PHILIPPINES: EC3106673) [seorang di bawah umur dan membawa tindakan ini melalui bapa yang sah serta sahabat wakilnya Plaintif Kedua]

CHAN WAH BOON (No. K/P: 650313-02-5511) … PERAYU-PERAYU

KERAJAAN MALAYSIA … RESPONDEN-RESPONDEN (Dalam Mahkamah Tinggi Malaya di Kuala Lumpur Dalam Wilayah Persekutuan, Kuala Lumpur Saman Pemula No.: WA-24NCVC-1858-11/2016 Dalam Perkara Artikel 14(1)(b), 15(2), 15A, Fasal Kedua Perlembagaan Persekutuan Malaysia Dan 2 Dalam Perkara Seksyen 4 Akta Kesahtarafan 1961 Dan Dalam Perkara Peraturan 5 (1) (a) Peraturan-Peraturan Pendaftaran Negara 1990 dan Akta Pendaftaran Negara 1959 Dan Akta Relif Spesifik 1950 Dan Dalam Perkara Aturan 7 Kaedah-Kaedah Mahkamah 2012 Dan Dalam Perkara Aturan 73 dan Aturan 76

CHAN TAI ERN BERMILLO (No. Passport Philippines EC3106673) [seorang di bawah umur dan membawa tindakan ini melalui bapa yang sah serta sahabat wakilnya Plaintif Kedua] 3

CHAN WAH BOON (No. K/P: 650313-02-5511) … PLAINTIF-PLAINTIF

KERAJAAN MALAYSIA … DEFENDAN-DEFENDAN) CORUM Abdul Rahman Sebli (then JCA) Zaleha Yusof (then JCA) Rhodzariah Bujang, JCA GROUNDS OF JUDGMENT [1] The High Court at Kuala Lumpur had on 23 August 2017 dismissed the appellants’ Originating Summons which inter alia sought for a declaration that the 1st appellant is a Malaysian citizen pursuant to Article 14(1)(b) or under Article 15(2) of the Federal Constitution (FC). Hence, the appeal before us by the appellant. However, before us, learned counsel for the appellants informed us that the appellants were not pursuing Article 15(2) but confined their appeal to only Article 14(1)(b) of the FC. 4 [2] The 2nd appellant, a Malaysian at the time of the birth of the 1st appellant, is the biological father of the 1st appellant. The 1st appellant’s mother is a citizen of the Republic of the Philippines. The 1st appellant was born on 27 September 2010 in the Philippines but his biological parents only legally registered their marriage in Malaysia on 22 February

Hence the 1st appellant was an illegitimate child at the time of his birth.

Can a child born out of wedlock be regarded as a legitimate child for the purpose of Article 14(1)(b) of the Federal Constitution, once his parents marry each other after he was born, hence section 17 of Part III of the Second Schedule is not applicable.

Whether a child who has obtained a foreign citizenship is deprived of Malaysian citizenship. 5 OUR DECISION [3] On the 1st issue, Article 14(1)(b) of the Federal Constitution talks about citizenship by operation of law. However it needs to be read together with Part II and Part III of the Second Schedule of the FC. For ease of reference we reproduce the relevant provisions as follows: Article 14(1)(b) “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:

…

every person born on or after Malaysia Day, and having any of the qualifications specified in Part II of the Second Schedule.” Section 1 of Part II of the Second Schedule: “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:

…..

every person born outside the Federation whose father as at the time of the birth a citizen and either was born in the 6 Federation or is at the time of the birth in the service of the federation or of a State; and.” Section 17 of Part III of the Second Schedule “Section 17 – For the purposes of Part III of this Constitution, reference to a person’s father or this 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”. (emphasis added) [4] Reading the above cited provisions, we find there will not be any problem if a child is born legitimate to a father who is a Malaysian citizen even if he is born outside the Federation. But in the instant appeal, the child was born out of wedlock. He was illegitimate at the time of his birth. So there comes the problems. Section 17 of Part III of the Second Schedule specifically stipulates that “father” in relation to a person who is illegitimate refer to his mother. [5] As alluded to earlier, the mother of the 1st appellant is a citizen of the Republic of the Philippines. Hence one of the qualifications of the citizenship by operation of law that the father, in this case, the mother, is 7 a Malaysian citizen at the time of the 1st appellant’s birth, by plain reading of the provisions of the FC, has not been fulfilled. [6] However, learned counsel for the appellants argued that the 1st appellant’s status had been legitimated since his biological parents subsequently married. Hence the 1st appellant is not illegitimate and reference to “person’s father” or “parent” in section 17 of Part III are not to be construed as reference to his Filipino mother. Learned counsel found support in the provision of sections 3, 4 and 9 of the Legitimacy Act 1961 (LA1961); which for ease of reference are reproduced below: Section 3 “(1) Nothing in this Act shall operate to legitimate a person unless the marriage leading to the legitimation was solemnised and registered…” Section 4 “Subject to section 3, where the parents of an illegitimate person marry or have married one another, whether before or after the prescribed date, the marriage shall, if the farther of the illegitimate person was or is at the date of the marriage domiciled in Malaysia, render that person, if living, 8 legitimate from the prescribed date or from the date or the marriage, whichever is the later.” Section 9 “A legitimated person shall have the same rights and be under the same obligations in respect of the maintenance and support of himself or of any other person as if he had been born legitimate, and subject to this Act the provisions of any written law relating to claims for damages, compensation, allowance, benefit or otherwise by or in respect of a legitimate child shall apply in like manner in the case of a legitimated person.” [7] Learned counsel for the appellants contended that the operation of section 3 of the LA 1961 should be retrospective and once the marriage between the parents has been registered or solemnised the person is granted the new status of being the legitimate child of their parents. He further contended that by virtue the present tense is used in section 17 of Part III of the Second Schedule, and since the 1st appellant’s application for his citizenship is made at the present time, after the marriage of his parents, therefore he would be entitled to claim his citizenship. 9 [8] The Learned Senior Federal Counsel (SFC) for the respondent argued that while it is true that an illegitimate child may be legitimated under section 3 of the LA 1961, the subsequent marriage of his parents would not change the birth status of the child. Section 4 of the LA 1961 deems the child as legitimate from the date of the marriage, hence the marriage does not have the effect of altering the child’s birth status which is illegitimate. She further submitted that section 9 of the LA 1961 only deems as if the illegitimate child had been born legitimate for the purpose of the rights and obligations of maintenance and support of himself, claims for damages, compensation, allowance, and benefit or otherwise. She found support in Foo Toon Air v Ketua Pendaftar Kelahiran dan Kematian, Malaysia [2012] 4 CLJ 613; Chin Kooi Nah v Pendaftar Besar Kelahiran dan Kematian Malaysia [2016] 1 CLJ 736 and Pendaftar Besar Kelahiran & Kematian, Malaysia v Pang Wee See & Anor (applying on their behalf and legitimate representative for Pang Cheng Chuen, a child) [2017] 3 MLJ 308. [9] We had perused the Grounds of Judgment of the learned High Court Judge. We found the submissions of the parties at the High Court were similar with the submissions before us. We found the learned High 10 Court Judge’s reasons in dismissing the Originating Summons were in line with the submissions put forward by the learned SFC. His Lordship had also referred to the same three cases referred to us by the learned SFC. His Lordship in paragraph 69 of the Grounds of Judgement concluded as follows: “…Thus, for purposes of Section 17 Part III of the Second Schedule of the Federal Constitution, P1’s status is the status that obtained at the time of birth, which means that he was illegitimate at that time, and since his mother, Maylene was a non-citizen, he accordingly lacked the requisite qualification for purposes of acquiring citizenship “by operation of law” under Article 14(1)(b) of the Federal Constitution. This disposes off the main issue in this case. [10] Having perused the Grounds of Judgment of the learned High Court Judge and considered the submission of the party before us, we found no reason to depart from the decision of the learned High Court Judge. With due respect to learned counsel for the appellants, we found the wording of section 1(b) of Part II of the Second Schedule is very clear. It talks about every person born outside the Federation “whose father as at the time of the birth a citizen.” The emphasis is “at the time of the child’s birth.” With due respect to learned counsel of the appellants, the 11 legitimacy of the child under section 3 and 4 of the LA 1961 cannot be retrospective as section 4 of the same clearly states that the child is rendered legitimate “from the prescribed date or from the date of the marriage, whichever is the later”. It means the child is only deemed legitimate on the date of the marriage of his parents and not from the date of his birth. [11] Section 9 of the LA 1961 provides for personal rights and obligations of a legitimated person. However it only confines to maintenance and support, claim for damages, compensation, allowance and benefit. It does not include rights to citizenships. We agree with the learned SFC that the LA 1961 is not competent as a legal instrument to confer citizenship status in view of unequivocal words of the FC as the supreme law of the Federation. See the decision of this Court in Pang Wee See’s case, supra. [12] But that is not the only issue that concerns us. It was brought to our attention by the learned SFC during the hearing of the appeal that the 1st appellant has taken up Philippines’ citizenship and that he has been issued with the Philippines Passport. This fact was confirmed by learned counsel for the appellants. Hence comes the second issue. 12 [13] The learned SFC submitted that since the 1st appellant holds a Philippines Passport, he is bared from being granted a Malaysian citizenship. Learned counsel for the appellants however argued, having been born outside the Federation the 1st appellant had to travel back to Malaysia and as such had to naturally obtain the relevant travel documents in order for him to enter Malaysia legally with his Malaysian father. As such, the fact that the 1st appellant holds a Philippines Passport cannot be a bar to his applicantion pursuant to section 1(b) Part II of the Second Schedule of the Federal Constitution. [14] Deprivation of citizenship on acquisition of a foreign passport is clearly provided for under Article 24 of the FC. Article 24 of the FC provides as follows: “24.

If the Federal Government is satisfied that any citizen has acquired by registration naturalization or other voluntary and formal act (other than marriage) the citizenship of any country outside the Federation, the Federal Government may by order deprive that person of this citizenship. 13

If the Federal Government is satisfied that any citizen has voluntarily claimed and exercised in any country outside the Federation any rights available to him under the law of that country, being rights accorded exclusively to its citizens, the Federal Government may by order deprive that person of his citizenship.

(Repealed)

Without prejudice to the generality of Clause (2), the exercise of a vote in any political election in a place outside the Federation shall be deemed to the voluntary claim and exercise of a right available under the law of that place; and for the purposes of Clause (2), a person who, after such date as the Yang di-Pertuan Agong may by order appint* for the purpose if this Clause-

Applies to the authorities of a place outside the Federation for the issue or renewal of a passport; or

Uses a passport issued by such authorities as a travel document, shall be deemed voluntarily to claim and exercise a right available under the law of that place, being a right accorded exclusively to the citizens of that place.

If the Federal Government is satisfied that any woman who is a citizen by registration under Clause (1) of Article 15 has acquired the citizenship of any country outside the Federation by virtue of her marriage to a person who is not a citizen, the Federal Government may by order deprive her of her citizenship.” 14 [15] What the Article provides is that voluntarily acquisition of a person of a foreign citizenship will deprive him of his Malaysian citizenship. It also provides that any person who has voluntarily claimed and exercised any rights accorded exclusively to the citizen of a foreign country may also be deprived of his citizenship. Clause

of Article 24 deems the exercise of a vote or the use of a passport issued by a foreign country, to be voluntarily claiming and exercising the rights of a foreign citizenship. [16] Therefore, it is crystal clear that if a person uses a passport issued by a foreign authority as a travel document, the person shall be deemed to claim and exercise a right available under the law of that country, being a right accorded exclusively to the citizen of that country. [17] This Clause (3A) read together with Clause (2) of Article 24 will deprive that person of his citizenship. [18] This is what has happened here. The 1st appellant is indeed a citizen of a foreign country, the Philippines; and he has been issued with 15 the Philippines Passport, and has been using the said passport for travelling. He is therefore, by virtue of Article 24 of the FC, deprived of a Malaysian citizenship. CONCLUSION [19] It cannot be argued, our FC provides that children born overseas to a Malaysian father obtain citizenship through operation of law. If a child is born out of wedlock or prior to the marriage registration of his parents, the citizenship status of the child is determined by his mother’s citizenship’s status. His mother’s citizenship applies. It does not matter that the parents got married later. That is in our view irrelevant, as the cut-off date for determination is the date of his birth. That is the letter of the FC and being the supreme law of the Federation, no written law such as the LA 1961 can be used to interpret it otherwise. [20] We agree with the learned SFC that the fundamental rule in interpreting the Constitution is to give effect to the intention of the framers. Such intention is gathered from the language of the provision. Reference is made to NS Bindra at pp. 1266 16 “The fundamental principle of constitutional construction is to give effect to the intent of the framers of organic law and of the people adopting it. That is, ‘according to the intent that made it”. Normally, such intent is gathered from the language of the provision. But if words used in the provision are imprecise, protean or evocative or can reasonably bear meaning more than one, then it is legitimate for the court to go beyond and call in aid other well-recognised canons of constructions”. [21] Applying the above principle, the court may only call in aid of other canons of construction to interpret words of Constitution that are imprecise, protean or evocative or can reasonably bear meaning more than one. But the court cannot interpret words that do not exist in the Constitution or insert new words into it. [22] In Loh Kooi Choon v Government of Malaysia [1977[ 2 MLJ 187, at pp. 190 [Raja Azlan Shah FJ (as his Highness than was] had stated “the ultimate touchstone of constitutionality is the Constitution itself and not general principles outside it”. [23] Learned counsel for the appellant had referred to the United Nations Convention on the Rights of Children and urged us to read the 17 FC in light of the other international laws which we are a party to. But here we are talking about the supreme law of the Federation. The constitutional regime and mechanism for acquisition of citizenship reside under Part III (Art. 14-31) of the Federal Constitution and they are not to be supplemented by other Parliamentary legislations or any international instruments. [24] We therefore answer the first issue in the negative. [25] The 1st appellant is undeniably a citizen of the Philippine. Our FC does not recognise dual citizenship. Although our FC was first introduced on 31 August 1957, Clause (3A) of Article 24 only came into effect on 1 October 1962 by virtue of the Constitution (Amendment) Act 14/1962. The amendment conveyed greater intolerance towards dual citizenship. The government has a discretion to confer citizenship on a stateless child, as the FC provides safeguard against statelessness such as in Article 15A of the FC. However the 1st appellant is not stateless. He is, at the risk of repeating, a citizenship of the Philippines. [26] We therefore answer the second issue in the negative. 18 [27] Premised on all the above, we dismiss this appeal with no order as to costs. sgd Dated: 14 February 2020 ( ZALEHA YUSOF ) Judge Court of Appeal Peguamcara Pihak Perayu-Perayu Tetuan Francis Pereira & Shan Suite 8A, Wisma TCT 516, 3rd Mile Jalan Ipoh 51200 Kuala Lumpur Peguamcara Pihak Responden-Responden Peguam Kanan Persekutuan Jabatan Peguam Negara Malaysia Bahagian Guaman No. 45, Persiaran Perdana Presint 4 62100 Putrajaya