Plight of the ‘illegitimate’ child?

WHAT happens when a child is born out of wedlock to a Malaysian-citizen father and a foreign migrant mother who leaves the country and cannot be traced? The marriage is not registered under the relevant law. The child is, hence, considered "illegitimate".

Is the child a citizen by operation of law? The National Registration Department refuses to recognise the child as a citizen.

The legal position is set out in the Federal Constitution. It says that a child born within Malaysia after Merdeka Day one of whose parents is at the time of the birth a citizen, automatically becomes a citizen. This is by operation of law. This applies only to a legitimate child.

If the child is illegitimate, then the constitution says that you only look at the nationality of the mother. So if the mother is a non-citizen, then the child cannot be a citizen under our law.

But there is an overriding provision in the constitution – to the effect that a child born in Malaysia who is not a citizen of any other country – is a citizen of this country by operation of law. This is to prevent a child becoming stateless.

In a recent court case a child born out of wedlock to a Malaysian father and a Thai mother was denied citizenship because the child acquired Thai citizenship under Thai law which accords Thai nationality if the mother (or father) is a Thai national – even if born outside Thailand. This child was born in 2010 in Kuala Lumpur. In this case, the application for the child to be declared a Malaysian citizen was dismissed – because the High Court concluded that the child would not be made stateless (Lim Juen Hsian v Ketua Pengarah Jabatan Pendaftaran Negara).

Two points. First, the Thai law was proved, reportedly, by the government lawyer tendering an internet extract of Thai law. Second, the court seemed oblivious to the implications of its decision. This child brought up entirely in Malaysia with his father has now to seek his fortune in – what will to him be – an entirely alien land and culture!

On appeal the court ruled that the "identity and citizenship status of the parents are known". As the mother is a Thai national therefore the child has its mother's citizenship.

Now, whether the child acquires citizenship because his mother is a Thai national has to be proved as a matter of fact. This foreign law must be proved through evidence – usually by experts or someone conversant with Thai citizenship law. No such evidence was adduced. The basis of this aspect of the Court of Appeal's conclusion is hence questionable, with respect.

The Appeals Court then went on to say that since the father could not prove that the child was stateless, as required by law, the child could not be shown to be stateless.

Perhaps. But the court did not consider the rather disastrous consequences of its ruling on a child of such tender years.

Statelessness, for sure, is the most extreme consequence of the denial of the right to a nationality. It disables a child from the right to education, healthcare, the right to move freely, enjoy liberty and other basic human rights. The child becomes invisible for most purposes – a non-person!

A news report talks of two "illegitimate" children refused schooling. Their father is a citizen who did not marry the mother – a foreign migrant (who has since disappeared).

Malaysia is party to an international treaty – the Convention on the Rights of the Child (CRC). Article 3 of the treaty says that "In all actions concerning children, whether undertaken by public or private social welfare institutions, courts of law, administrative authorities or legislative bodies, the best interests of the child shall be a primary consideration".

Admittedly, international treaties are not directly enforceable in domestic law unless and until they are enacted in Parliament.

This did not stop the apex Australian court to rule that there is a presumption that administrative authorities would normally act in accordance with the terms of a treaty; and consider the paramount interest of the child when making a decision.

Australia's membership of the CRC gave rise to a legitimate expectation "particularly when the instrument evidences internationally accepted standards to be applied by courts and administrative authorities in dealing with basic human rights affecting the family and children". Lord Steyn also noted the "growing support for the view that human rights treaties enjoy a special status" in Re McKerr.
  
We do not know the number of cases of children born out of wedlock, and rendered stateless by the refusal of the registration department. Why the parents failed to regularise their marriage remains undocumented. Ignorance, poverty? Perhaps. But why punish the child for the alleged omission or "sins" of the parents?

The High Court and Appeals Court in this case were doing no more than apply the text and the purpose of the Constitution. Which is their remit.

But, perhaps, consonant with the exhortation that the constitution be interpreted dynamically "to fashion remedies to meet its needs", the judiciary should infuse the constitution with modern-day realism to portray its compassionate, living and evolutionary nature.

Especially where human rights are injuriously impaired, as in the case of an illegitimate child.

Gurdial, former law professor, is now a consultant. Comments: letters@thesundaily.com