Children Born Out of Wedlock to Malaysian Fathers: Examining the Unresolved Gap in Malaysia’s Citizenship Framework

Introduction

Does determining a child’s citizenship based on the marital status of the parents at birth, or the gender of the Malaysian parent, protect the child’s interests? A child born out of wedlock faces obstacles in acquiring citizenship in Malaysia if the Malaysian parent is the father. Section 17 of Part III of the Second Schedule of the Federal Constitution provides that, for an illegitimate child, references to “father” or “parent” are to be construed as references to the “mother.” Consequently, a child born out of wedlock to a Malaysian mother may acquire citizenship by operation of law. A Malaysian father, however, does not provide the same route.

This issue remains significant following the Constitution (Amendment) Act 2024, which allows either Malaysian parent to transmit citizenship to children born abroad. However, the reform did not amend section 17 of the Second Schedule. This raises questions under Article 8 of the Federal Constitution about equality, and whether Article 15A — a discretionary citizenship registration route — offers an adequate alternative to citizenship by operation of law.

This article argues that the continued differential treatment based on the gender of the Malaysian parent is difficult to justify consistently with Article 8. It examines the constitutional framework, the judicial interpretation of section 17 of the Second Schedule, the adequacy of Article 15A, and the extent to which the 2024 constitutional reforms have addressed the disparity.

Legal Framework Governing Citizenship and Children Born Out of Wedlock

Malaysia’s citizenship framework is governed by Part III of the Federal Constitution. Article 14 provides for citizenship by operation of law.

The position changes where a child is born out of wedlock. If the mother is Malaysian, the child may derive citizenship through her. A Malaysian father, however, does not provide an equivalent route for a child born out of wedlock. This creates a position in which citizenship depends on which parent is Malaysian and on the marital status of the parents.

The framework must also be read alongside Article 8, which guarantees equality before the law. Article 15A, meanwhile, allows a person under the age of twenty-one to be registered as a citizen in special circumstances. Unlike citizenship by operation of law, Article 15A provides a discretionary route and does not confer citizenship automatically.

How Have the Courts Interpreted Section 17, and Is the Resulting Distinction Constitutionally Justified?

Malaysian courts have consistently interpreted section 17 of the Second Schedule as following the mother’s citizenship for an illegitimate child. This raises questions about the commitment to equality, since fathers are unable to transmit citizenship in these circumstances while mothers can.

In Lim Jen Hsian & Anor v Ketua Pengarah Jabatan Pendaftaran Negara & Ors [2017] 8 CLJ 412, the Court of Appeal held that a child born in Malaysia could not derive Malaysian citizenship through his father, even though paternity was clear, because the parents were unmarried at the time of birth. This shows that even birth in Malaysia and established Malaysian paternity cannot overcome the legal consequence. The position was reinforced in CTEB & Anor v Ketua Pengarah Pendaftaran Negara Malaysia & Ors [2021] 4 MLRA 713, which held that citizenship by operation of law must be determined at birth, and that the parents’ subsequent marriage cannot change that. The majority’s reasoning emphasised that any amendment to the constitutional wording was a matter for Parliament.

The dissent in CTEB, however, questioned reliance on the parents’ marital status where the Malaysian father’s identity was clear. The exclusion of Malaysian fathers from transmitting citizenship raises the question of whether the provision remains fit for purpose. This exposes the narrow application of section 17, which affects a child who has no control over a parent’s actions.

Article 8 and the Gendered Effect of Section 17

Article 8(2) of the Federal Constitution prohibits discrimination against citizens on the ground of gender, subject to qualification. Section 17 produces different citizenship outcomes depending on the gender of the Malaysian parent and the marital status of the parents. The child has no control over either factor but bears the consequences — a position made worse still where the child also cannot acquire citizenship through the mother.

In Mahisha Sulaiha Abdul Majeed v Ketua Pengarah Pendaftaran & Ors and another appeal [2022] 6 MLRA 59, the case concerned children born overseas to Malaysian mothers who were denied citizenship by operation of law. Although this case concerns a mother’s inability to transmit citizenship for an overseas birth, rather than the illegitimacy issue that is this article’s focus, it remains instructive on how the courts approach Article 8 challenges to the citizenship provisions generally. The Court of Appeal declined to reinterpret the citizenship provisions through Article 8, reasoning that the discrimination arose not from gender alone but from the interaction of the citizenship provisions as a whole. The majority held that the discrimination was expressly authorised by the Constitution itself, since the provisions specifically refer to the “father,” and that any reinterpretation would amount to rewriting the Constitution — a power reserved to Parliament.

The dissent (Nantha Balan JCA), however, considered the gender distinction inconsistent with Article 8(2). A child born out of wedlock to a Malaysian father is denied the ability to acquire citizenship through him, while a child born to a Malaysian mother is not similarly barred. The only relevant difference is the gender of the Malaysian parent, which suggests that gender remains a determining factor. The fact that marital status is also involved does not remove the gender element; rather, it is the combination of both factors that produces the discriminatory outcome. The mere existence of a provision that refers only to the father may reflect an outdated assumption that fathers were the primary transmitters of citizenship. The minority view is that Article 8(2) should prevail over the discriminatory provisions.

The majority approach is understandable from the perspective of constitutional text and the separation of powers. The difficulty arises, however, where a literal reading of the text is treated as the only course open to the courts, foreclosing engagement with the Constitution’s equality guarantee. Such an outcome is arguably difficult to reconcile with the principle of jus sanguinis — citizenship by descent — since it draws a distinction between parents rather than reflecting any incapacity in the child.

The legal consequences of being born out of wedlock fall, in practice, more heavily on the child than on the parents. The Mahisha case therefore illustrates the difficulty of reconciling specific citizenship provisions with the Constitution’s general guarantee of equality, even allowing for its express exceptions. Article 8(1) guarantees equal protection of the law, while Article 8(2) prohibits discrimination on specified grounds, including gender, except where expressly authorised by the Constitution. The relevant question is not whether section 17 has a clear meaning, but whether the distinction it draws can be justified within the Constitution as a whole.

The Effect on Children and the Problem of Justification

Encouraging marriage by restricting citizenship transmission in cases of illegitimacy may be an acceptable policy aim. However, denying citizenship to the child transfers the consequences of the parents’ marital status onto the child. Treating the father as legally irrelevant for citizenship transmission — even where his identity is clearly established — simply because the parents were unmarried raises the question of whether the distinction remains rationally connected to its intended purpose.

The difficulty with the majority approach lies in its rigid and literal interpretation of the constitutional text, which risks undermining the Constitution’s equality guarantee. Section 17 does not, on its own, answer whether the distinction it draws is constitutionally justified. In CTEB, the court held that interpreting “father” to include “mother” would amount to an amendment of the Constitution, a power reserved to Parliament, and that the distinction should therefore be preserved rather than displaced by judicial policy-making. This explains the courts’ institutional restraint, but it does not answer the separate question of whether the distinction is, in substance, unjustifiable. Courts retain a duty to protect constitutional rights, including equality, and alternative interpretive approaches emphasise purpose and adaptability to social change rather than confinement to literal meaning. The Constitution can be interpreted dynamically to address concerns such as gender equality and the right to citizenship.

Under the Federal Constitution, Malaysian fathers cannot transmit their nationality to children born out of wedlock, while Malaysian mothers can. The child’s legal position therefore turns on the sex of the Malaysian parent.

The Malaysian Bar has filed a resolution titled “Resolution to Protect the Rights of the Child and Abolish Gender Discrimination in Malaysian Laws,” addressing, among other matters, the continued use of the term “illegitimate” for children born out of wedlock.

It might be argued that the child has other options and is therefore not disadvantaged. However, the child’s ability to acquire the mother’s nationality depends on the laws of that country — it may not recognise the child, or the mother herself may be stateless — and could leave the child stateless as well. The consequence is ultimately borne by the child rather than the parents. Even where an alternative route exists through the mother, denial of Malaysian citizenship through the father remains difficult to justify. Rather than benefiting the family, the restriction risks worsening the position of both the parents and the child. Citizenship by registration or discretion may fairly be described as a privilege rather than a right; citizenship by operation of law, by contrast, is an entitlement that arises once the constitutional conditions are satisfied. Where the father is Malaysian, the child is, in substance, seeking recognition of an existing legal entitlement — not the grant of a new privilege.

Article 15A: An Alternative or an Inadequate Substitute?

Article 15A provides an alternative route for children who do not acquire citizenship by operation of law. It does not, however, provide an equivalent safeguard. Registration under Article 15A is a matter of ministerial discretion, and an application may be rejected. Administrative delays and inconsistency in decision-making can further complicate the process, and families without the means to bear legal costs may be left without an effective remedy if a decision is challenged.

Treating Article 15A as a substitute for citizenship by operation of law overlooks the difference between a legal entitlement and a discretionary possibility. An illegitimate child of a Malaysian father must depend on a discretionary process that may take a considerable time to resolve. The Lim Jen Hsian case illustrates that, despite established Malaysian paternity and birth in Malaysia, section 17 prevented the child from deriving citizenship through his father. Reliance on Article 15A therefore does not remove the disparity created by section 17; instead, it demonstrates how the framework leaves children dependent on discretionary routes rather than providing certainty.

The 2024 Reform and the Unresolved Gap

The 2024 constitutional reforms expanded the ability of Malaysian mothers to transmit citizenship to children born overseas, representing a step towards gender equality in citizenship transmission. Section 17, however, remains unchanged, creating an inconsistency that is difficult to justify.

The reform addressed one gender-based disparity while leaving another unresolved. Malaysian mothers are now recognised as equal parents for citizenship purposes in overseas births, but Malaysian fathers remain unable to transmit citizenship by operation of law to a child born out of wedlock. The reform demonstrates that greater equality in citizenship law is constitutionally achievable, but its limited scope leaves this particular gap in place.

Judicial Restraint and the Remaining Constitutional Question

The courts’ reluctance to use the equality guarantee to alter the citizenship provisions reflects a broader stance of judicial restraint. Deference to Parliament, however, does not answer the underlying question. The Constitution must be read as a whole, and Article 15A, as a discretionary route, does not resolve whether the underlying discrimination is acceptable.

Section 17 continues to produce different citizenship outcomes depending on the gender of the Malaysian parent and the parents’ marital status, despite the child bearing no responsibility for either circumstance. The dissents in CTEB and Mahisha show that alternative interpretations are available, particularly where children have no control over their parents’ circumstances.

Article 3 of the Convention on the Rights of the Child requires that the best interests of the child be a primary consideration in actions concerning children. This principle is directly relevant when assessing a rule whose consequences fall on a child for reasons entirely beyond that child’s control.

The 2024 reforms expanded gender equality in citizenship transmission without addressing section 17. The question therefore remains open and warrants reform to allow either parent to transmit citizenship to a child born out of wedlock.

Comparative Perspectives

Indonesia offers a useful comparison, having addressed a similar issue involving children born out of wedlock. Before 2012, a child born outside marriage had a legal relationship only with the mother and her family. In its Decision No. 46/PUU-VIII/2010, the Constitutional Court of Indonesia declared Article 43(1) of Law No. 1 of 1974 concerning Marriage unconstitutional insofar as it prevented a child from establishing a civil relationship with the father. The Court held that it was unjust for the consequences to fall on the child alone, and recognised the child’s relationship with both parents where paternity could be established.

Unlike Indonesia, proof of biological paternity does not, in Malaysia, enable a father to transmit citizenship by operation of law. In Indonesia, scientific evidence can establish a legal relationship between a child and the biological father. The Indonesian approach shows that a legal system can separate the regulation of marriage from the recognition of parentage — that is, recognising a biological father does not undermine the state’s interest in regulating marriage, while still protecting the child’s interests.

This comparison offers a persuasive basis for questioning whether Malaysia should continue to exclude Malaysian fathers from citizenship transmission solely because the parents were not married at the time of the child’s birth. The Malaysian position can be assessed against these practical and constitutional considerations.

Conclusion

This article has examined the unresolved gap in Malaysia’s citizenship framework concerning children born out of wedlock to Malaysian fathers. It has argued that the exclusion of Malaysian fathers from citizenship transmission is difficult to justify consistently with constitutional equality and the best interests of the child. Although Article 15A provides an alternative route to citizenship, it does not offer the child the same certainty as citizenship by operation of law. The comparative analysis with Indonesia shows that a non-discriminatory framework is both possible and workable.

Section 17 of the Second Schedule should be amended to allow citizenship to be transmitted through either Malaysian parent, regardless of marital status. Future reforms should ensure that children are not disadvantaged by circumstances entirely beyond their control. Urgent constitutional reconsideration is required to bring Malaysia’s citizenship framework into closer alignment with constitutional equality and the best interests of the child.

Bibliography

Cases

• CTEB & Anor v Ketua Pengarah Pendaftaran Negara Malaysia & Ors [2021] 4 MLRA 713
• Lim Jen Hsian & Anor v Ketua Pengarah Jabatan Pendaftaran Negara & Ors [2017] 8 CLJ 412
• Mahisha Sulaiha Abdul Majeed v Ketua Pengarah Pendaftaran & Ors and another appeal [2022] 6 MLRA 59
• Constitutional Court of the Republic of Indonesia, Decision No. 46/PUU-VIII/2010 (17 February 2012)

Legislation and Constitutional Materials

• Federal Constitution of Malaysia
• Constitution (Amendment) Act 2024 (Malaysia)
• Law No. 1 of 1974 concerning Marriage (Indonesia)

International Materials

• Convention on the Rights of the Child (adopted 20 November 1989, entered into force 2 September 1990) 1577 UNTS 3

Secondary Sources

• Syed Ahmed Khabir bin Abdul Rahman, Shakirah binti Ahmad Sharifuddin and Mirza Batrisyia binti Mohd Hafidz, “Citizenship Rights in Malaysia: A Constitutional Reform” (2021) 3 CLI 41
• Malaysian Bar, “Resolution to Protect the Rights of the Child and Abolish Gender Discrimination in Malaysian Laws” (25 September 2021)