KUALA LUMPUR: The national registration department (JPN) has no power to order a foreign woman, her Malaysian husband and their son undergo to DNA tests to determine if they are the biological parents of the boy, the High Court heard today.
Lawyer A Srimurugan said there is no provision in the National Registration Act 1959 and the National Registration Regulations 1990 that allow the director-general to demand such a test.
“The first defendant (JPN director-general) has no discretion to refuse the issuance of a Malaysian identity card with the word ‘warganegara’ (citizen) since the child has fulfilled the constitutional requirement,” he said in his submission before Justice Amarjeet Singh.
He said the 13-year-old boy will become a stateless person and his interest would be affected if the High Court declines the application.
Earlier this year, the mother filed a suit seeking a declaration that her son, who was issued a birth certificate, is a Malaysian citizen.
In the originating summons, the mother wants the JPN director-general to issue her son an identity card.
She also wants JPN to return her son’s birth certificate which is in the department’s possession.
Srimurugan told the court today that the woman’s husband is a Malaysian citizen and the child is her legitimate son.
Therefore, he said, the child qualifies for citizenship pursuant to Article 14(1)(b) read together with the Second Schedule Part II, 1(a) of the Federal Constitution, since he was “born within the Federation” and “at least (one of his parents) is at the time of birth a citizen”.
As a result, the child is constitutionally entitled to Malaysian citizenship.
He said the correct question to be asked when determining whether a child is constitutionally entitled to citizenship relates to legitimacy and not paternity, citing a Federal Court ruling in the case of CTEB & Anor v Ketua Pengarah Pendaftaran Negara, Malaysia & Ors handed down two years ago.
He said the right to citizenship is a constitutional right and comes within the meaning of “personal liberty”, under Article 5(1) of the Federal Constitution.
Meanwhile, senior federal counsel Nur Idayu Amir submitted that the couple and the boy must produce a DNA test to determine paternity.
Amarjeet will deliver his ruling on Oct 16.
In an affidavit in support of her suit, the mother said that she married her husband in 2000 and that they have two children. Their second son was born on Jan 13, 2010.
Both children were issued birth certificates as their father is a Malaysian citizen.
Last year, her husband went to the JPN office in Jalan Duta to apply for an identity card for the younger boy as he had turned 12.
However, the mother said the JPN officer refused to issue the identity card and instead seized her son’s birth certificate.
In her supporting affidavit, she said JPN had no authority to deny her son an identity card.
She fears that her son would be denied free education, free access to health facilities as well as a Malaysian passport to travel abroad if he was not issued an identity card.
She confirmed that her son was not a citizen of any other country and has not made any application to any foreign state for citizenship.
The mother contended there are legal issues to be determined by the court, including whether JPN’s actions were unconstitutional and tainted with illegality.
In his affidavit in reply, former JPN director-general Ruslin Jusoh said the parents had been told to undergo the test to prove the boy’s paternity but had refused.
Ruslin, who was JPN director-general between April 2019 and March this year, is now the director-general of the immigration department.
Ruslin said the couple had brought the boy, their second son, to the JPN branch at Jalan Duta here where officers noted that his features and complexion did not match those of the couple.
Three months later, JPN’s investigations and enforcement division recorded a statement from the couple and advised them to take the test, Ruslin said.
The boy’s parents rejected the advice when they returned for further questioning in October, he added.