EVERY child deserves the security of knowing where they belong. Nationality is more than a legal status – it is the foundation of identity, protection and equal participation in society. Yet for some children born and raised in Malaysia, that fundamental sense of belonging remains uncertain – not because of anything they have done but because of the marital status of their parents at the time of birth.
The Court of Appeal recently dismissed the citizenship claims of two adults born and raised in the country by Malaysian fathers. In both instances, the parents were not married and the mother left when they were very young. However, both have official letters confirming they are not registered citizens of their mothers' countries and have DNA evidence proving their paternity. Sadly, both were told that under the Federal Constitution, none of that matters.
This is not the situation of immigrants or opportunistic claims. It is a story about two people who did nothing wrong, being denied a nationality because of a decision their parents made or failed to before they were even born.
How did the court rule?
Both cases had argued they should qualify under Section 1(e), Part II, Second Schedule which grants automatic citizenship to a child born in Malaysia who is "not born a citizen of any country" – the constitutional safeguard against statelessness.
The court rejected this, holding that both were presumed capable of taking on their mothers' nationality, regardless of the fact that both mothers had disappeared from their children's lives decades ago. The judgment relied heavily on Federal Court and Court of Appeal precedents.
By applying Section 17 strictly to deny citizenship, solely because the unmarried parent is the father, the law effectively perpetuates gender discrimination against Malaysian men and penalises children based on legitimacy.
Just as recent constitutional amendments recognised the equal right of Malaysian mothers to confer citizenship, Section 17 must be given a purposive, harmonious interpretation alongside Article 8(2) of the Federal Constitution – which explicitly prohibits gender discrimination – so that 'parent' includes a Malaysian father.
The deeper question is whether this framework still deserves to stand in 2026.
A framework built for a different era
The constitutional provisions being applied here were drafted in 1957, in a world where legitimacy carried heavy legal weight, DNA testing did not exist, international mobility was rare and preventing dual nationality was a central policy concern. Paternity, where a couple was unmarried, simply could not be reliably proven so the law defaulted to the one parent whose identity was never in doubt – the mother.
That justification has largely disappeared. DNA testing can now establish paternity with near certainty. It is noteworthy that DNA testing is recognised in criminal law. Thus, we are willing to take away a person's liberty based on DNA tests but not to give life to a person who has no other avenue.
Children's rights have become a principle of international human rights law. Many countries have abolished the legal distinction between 'legitimate' and 'illegitimate' children altogether. And statelessness, once a marginal concern, is now recognised globally as a serious, generational harm.
What does the rest of the world do?
Malaysia is not unique in having once tied citizenship to legitimacy, but it is increasingly an outlier in still doing so. Broadly, four approaches exist internationally:
– Citizenship follows either parent, regardless of marital status: The approach now taken by the United Kingdom, Australia, Canada, New Zealand, the United States and France, among others. The operative legal question is simply "is this your biological or legally recognised child?" not "were you married?"
– A legitimation cure: Some jurisdictions allow citizenship to be secured later, through subsequent marriage, judicial declaration of paternity or DNA proof.
– An anti-statelessness backstop: Some countries confer citizenship automatically wherever the alternative is a child with no nationality at all.
– A strict lineage approach: Which continues to penalise children born to Malaysian fathers outside of a legal marriage, places Malaysia in a rapidly shrinking minority. While nations around the world, including many Muslim-majority countries, have modernised their nationality laws to eliminate these barriers, Malaysia remains one of the few nations yet to reform this archaic distinction.
It is also worth noting there is no single 'Islamic position' on this question. Nationality law is a matter of constitutional and statutory law, not purely religious law and Muslim-majority states, including Indonesia, Egypt, Morocco, Tunisia, Pakistan, Bangladesh and Turkey, have taken varying and, in several cases, substantially liberalised approaches to citizenship transmission by mothers and fathers alike.
The child is not the wrongdoer
Strip away the legal language and the present framework says something quite stark – that a child should bear the legal consequences of their parents' marital status. Malaysian father, DNA-proven paternity, thirty years raised in Malaysia, no ties whatsoever to the mother's country of origin – all of this is, in law, irrelevant. The only fact that matters is whether a marriage certificate existed at the time of birth.
That is the wrong question. The right question is: who is this child, where do they actually belong and what happens to them if no state will claim them? The right answer would be, these children, raised in Malaysia, educated in our schools and rooted in our communities, owe their sole allegiance, attachment and loyalty to Malaysia. Treating them as legal strangers simply because their Malaysian fathers were not legally married at the time of birth creates an arbitrary cruelty. The citizenship provisions must be read purposively to recognize those who inherently belong to the fabric of our nation.
Malaysia has shown this can change
This is not a hypothetical ask. In October and December 2024, Parliament passed the Constitution (Amendment) Bill 2024, which, once gazetted and to be implemented in mid-2026, allows Malaysian mothers, like Malaysian fathers, to automatically confer citizenship on their children born overseas. It was a hard-won, decade-long campaign and it proves that Parliament can and will revisit citizenship provisions when the underlying unfairness is exposed. That amendment addressed a different gap, mothers of overseas-born children, but the precedent matters – constitutional citizenship law in Malaysia is not frozen.
The question Malaysia has not yet confronted is the one raised squarely in these cases. What happens to Malaysia-born children of Malaysian fathers, when the mother cannot or will not confer her nationality and marriage never took place?
What could change?
There are realistic paths forward, none of which require abandoning legitimate immigration control.
1. Strengthen the anti-statelessness safeguard. Section 1(e) exists precisely to prevent statelessness. Where a child born in Malaysia has no practical route to another nationality as certified by the relevant embassy and has been raised in Malaysia, that safeguard should function as intended, rather than being defeated by a theoretical claim to a foreign nationality the child has never been able to access.
2. Introduce judicial or administrative discretion for cases of long-term residence, education in Malaysia, absence of any foreign citizenship and abandonment by the foreign parent so individual injustices do not have to wait for wholesale legislative reform.
3. Guarantee equal citizenship rights for children of either Malaysian parent. Children of a Malaysian citizen, whether mother or father, should be able to obtain citizenship irrespective of gender, marital status or place of birth.
4. Recognise proven biological paternity as a pathway to citizenship. Where the father is still alive and DNA evidence conclusively establishes paternity, a Malaysian father should be entitled to confer citizenship to his child as an available legal route, placing paternal biological reality above marital status.
To give these changes real effect, government agencies, specifically the Home Ministry and the National Registration Department, must actively assist applicants and establish expedited processing timeframes. In alignment with the best interests of the child, no individual should be left trapped in administrative limbo to face a lifetime of systemic discrimination.
Such reform would also support Malaysia's commitment to the United Nations Sustainable Development Goals (SDG). Legal identity is central to SDG 16, which calls for legal identity for all, while reducing childhood statelessness advances SDG 10 by reducing inequality. Legal identity also facilitates equitable access to healthcare and education, contributing to SDGs 3 and 4. Nationality is not merely a legal status; it is often a gateway to health, education, protection and opportunity throughout life.
It behoves Malaysia, as having served on seats on International Human Rights Committees, to uphold the UNCRC on anti-statelessness for children.
Where this goes next?
The Court of Appeal has answered what the law currently is. Whether the law should remain this way is now a matter for Parliament, and where constitutional interpretation allows it, for the Federal Court.
The global direction of nationality law has moved been away from punishing children for the circumstances of their birth and towards recognising proven parentage, genuine connection to the state and prevention of statelessness as the guiding principles. Malaysia helped itself take a step in that direction in 2024 for children of Malaysian mothers born abroad. The same principle should be extended to Malaysia-born children of Malaysian fathers, whatever their parents' marital status.
The debate, when it happens, should not begin with the parents. It should begin with a single question: Who should bear the consequences of an adult's choices – the parent, or the child? Two Malaysia-raised adults, now in their late twenties, are still waiting for an answer.
Signatories
1. Datuk Dr Amar-Singh HSS, Consultant Paediatrician, Child-Disability Activist
2. Rizlan Ghazali Chewan, advocate & solicitor
3. Family Frontiers
4. Cathryn Anila, Vanguards4Change
5. Datuk Dr Hartini Zainudin, child activist, Kasih Madhya founder, YCK
6. Johor Women's League (JEWEL)
7. Sabah Women's Action Resource Group (Sawo)
8. Asha Singh, child advocate
9. Sheila GK, Consultant Paediatrician & Senior Lecturer, Mahsa University
10. Ecpat Malaysia
11. Child Rights Coalition Malaysia
12. Childline Foundation
13. Meera Samanther, advocate & solicitor
14. Sharmila Sekaran, child advocate
15. Women's Aid Org
16. ANAK Sabah
17. Women's Centre for Change Penang (WCC)
18. Protect and Save the Children
19. Association of Women Lawyers
20. Kasthuri Krishnan, advocate & solicitor
21. Marques Jeevan Menon, Global Institute For Tomorrow
22. Pertubuhan Kebajikan Vivekananda Rembau NS
23. NGOhub
24. Reproductive Health Association Kelantan
25. Global Shepherds
26. Yayasan Chow Kit
27. Azira Aziz, lawyer
28. Monsters Among Us
29. Buku Jalanan Chow Kit
30. Anisa Ahmad, child advocate
