It will not be appropriate to view the Constitution as if its waters have not been enriched by fresh flows.
THE Federal Court, by a narrow 4-3 majority, ruled last week that an illegitimate child born abroad to a Malaysian father and a Filipina mother is not entitled to Malaysian citizenship by operation of law.
This has saddened all human rights advocates, who are asking: “What does illegitimacy have to do with citizenship? Why must a child suffer vicariously for the extra-marital relationship of his parents?”
The law on citizenship in our Constitution is a maze, not a motorway. It is the most intricate and confusing part of our basic law because the drafters were trying generously to accommodate the endless range of life situations. They succeeded only partly because life is always larger than the law.
On the surface, the law relevant to this case can be summed up in two propositions:
> In Article 14(1)(b) and the Second Schedule, Part II, Section 1(b), it is provided that every person born outside the Federation is entitled to citizenship if his father is at the time of the birth a Malaysian citizen and either born in the Federation or is in the service of the Federation.
> However, the Second Schedule, Part III, Section 17 provides that in the case of an illegitimate child, any reference to the father should be construed as reference to the mother. This means that for illegitimate children, the mother’s status gains precedence.
Due to the existence of Section 17, Tan Sri Rohana Yusuf, president of the Court of Appeal, in a simple and succinct judgment on behalf of the majority ruled that as the child was illegitimate at birth, the child must follow the mother’s citizenship. The marriage of the parents five months after the child’s birth does not permit reference to the father’s status as a Malaysian.
While expressing regret at the result, Rohana felt that “it is the duty of the court to uphold and give effect to the clear provisions of the Constitution however much it may dislike the result.”
She invoked the doctrine of separation of powers to urge judicial restraint and to leave it to Parliament to remove the manifest victimisation of illegitimate children and the gender bias against the mother. (Actually, the discrimination was against the Malaysian father whose blood relationship with the child was subordinated to the non-citizen mother’s status).
The minority, consisting of Chief Justice Tun Tengku Maimun Tuan Mat, Datuk Nallini Pathmanathan and Datuk Mary Lim Thiam Suan, was in strong and learned disagreement.
All three learned dissenting judges were of the view that the transmission of citizenship by descent or blood relationship was the nub of the Constitution. The imposition of legitimacy as a precondition to the conferment of citizenship amounts to a violation of the primary provision by a supplementary provision.
Section 17 on the mother’s status is relevant only if the biological father’s whereabouts are unknown. But if the citizen-father is known, then the child is entitled to citizenship from the biological father irrespective of the question of legitimacy.
Justice Nallini opined that the word “father” refers to “biological father” and not the “marital” father. In an erudite exposition of the principles of constitutional interpretation, the learned Chief Justice and Nallini, FCJ opined that the Constitution should be given a broad, generous and prismatic interpretation. It must be read as a whole and contextually. The function of the judge is not to adopt a grammarian approach. Any interpretation that causes conflicts within the Constitution should be avoided. Any interpretation that effectively nullifies Article 14(1)(b) on the citizen father’s right to transmit citizenship should be avoided.
The Second Schedule, Part III, Section 17 is not at the heart of the citizenship law. It is part of “Supplementary Provisions” and was not intended to operate as an overriding provision.
A purposive and historical interpretation must be preferred over a purely textual one. In a learned overview of the historical documents on the drafting of the Constitution, the CJ noted that the historical draft sought to cast the citizenship net very wide. Legitimate, illegitimate, adopted and posthumous children were awarded citizenship if one parent was a citizen or permanent resident.
The CJ noted that Section 17 was intended to be an enabling provision to allow illegitimate children whose father was unknown to obtain citizenship from their citizen mother.
Justice Nallini referred to Hansard, the parliamentary reports, to prove that in all historical records, citizenship by operation of law is allowed to any child so long as either of the parents was either a citizen or a permanent resident of the Federation.
In several admirable passages that would warm the heart of any constitutional lawyer, the CJ held that the citizenship chapter must be read along with Article 5 on life and personal liberty. “The right to life must include the right to nationality.”
Then there is also the all-pervading provision of Article 8 (on equality). The downgrading of the status of the father against that of the mother is gender discrimination and could not have been intended even if the child is illegitimate.
Justice Nallini pertinently asked as to why the law must be interpreted in such a way as to refuse transmission of citizenship between the Malaysian father and the illegitimate child while readily recognising the citizenship of an illegitimate child of a Malaysian mother.
On this point, I wish to add that Article 8(2) on non-discrimination was amended in 2001 to ban differentiation on the ground of gender “in any law”. As the CJ ruled, “any law” includes the Constitution. After 2001, no court should close its eyes to this wholesome development and should try as far as possible to harmonise any conflicting provisions of the Constitution with Article 8(2). It will not be appropriate to view the Constitution as if its waters have not been enriched by fresh flows.
Also, the discrimination between legitimate and illegitimate children attracts the humanising provisions of Article 8 on equality.
The judgments of both the CJ and Nallini, FCJ admirably referred to the Universal Declaration of Human Rights which, subject to our Constitution, is part of our law.
In sum, while the issues in this hallmark case may be viewed by some as narrow and related primarily to the citizenship status of a victimised, illegitimate child, there are aspects of the dissenting judgments that are of immense importance to constitutional jurisprudence.
We have bold and erudite theories of constitutional interpretation and a critique of the purely literal, mechanical, grammatical, keyhole view of the law. We have a stirring statement of the role of the courts to try to do justice. The admirable tradition of encouraging dissenting judgments that took hold during the time of the previous CJ, Tan Sri Richard Malanjum, is continuing. Dissenting judgments are often the voice of the future.
In the meantime, the minister should do his part and take a sip from the fountain of justice by granting citizenship by registration to this victimised child under Article 15(2) of the Constitution – something that Rohana also compassionately hinted at.
Prof Shad Faruqi is holder of the Tunku Abdul Rahman Chair at UM, and the Tun Hussein Onn Chair at ISIS Malaysia.
The views expressed here are the writer’s own.