In Malaysia, DNA Does Not Guarantee Citizenship Nor Inheritance

It was his proudest and saddest moment.

“But when mentioning her name, the ‘binti’ was followed by Abdullah, instead of my name,” he said. 

“I felt kind of sad. Not felt...,” he corrected himself, “but was really sad.”

In Malaysia, it is the custom for children considered “illegitimate” or born out of wedlock to Muslims to have the generic surname of Abdullah (which means God’s servant in Arabic) or its equivalent on their birth certificate. 

It is not a question of iffy parentage for his four children, however. If it were, a DNA test would settle it. As it is, all his children have his name listed as father on their birth certificate but their official full name includes the ‘Abdullah’ surname.

The reason the National Registration Department (NRD) gave Mazlan, who was in Sabah when he got married but now lives with his family in Selangor, was that he did not have a marriage certificate from the Sabah Islamic Affairs Department. No marriage certificate, no legal recognition.

In Malaysia, legal marriage remains the determining factor for passing on citizenship or property, rather than blood ties. And getting legal recognition of a marriage can be a quagmire of bureaucracy. 

It does not matter that Mazlan and his wife, who is stateless, had tried to apply for a marriage certificate. Or that they tried to register their marriage at the Sabah Islamic Affairs Department after getting married at a mosque. Each time they were turned away because his wife did not have proper identification papers. Subsequent attempts to register their marriage have failed.

As far as the Malaysian government was concerned, because they did not have a valid marriage licence, that meant their marriage was not legal and their children “illegitimate”. The couple’s problems did not end there. Because his 35-year-old wife, who was adopted as a child in Sabah, is stateless, that meant his children inherited her statelessness. 

For the past 15 years, Mazlan and his wife have applied for citizenship for their children. So far, they have not had any luck. Any response they receive does not tell them where they went wrong in applying. And time is running out quickly for his two older children, aged 14 and 15. This is because the cut-off date for parents to apply for citizenship for their stateless children is on the verge of being lowered to 18 from 21. 

 

The Federal Constitution stipulates the principles of jus soli (right of land) and jus sanguinis (right of blood) to determine citizenship, as well as the legitimacy of birth to determine citizenship, on top of protections for abandoned children and stateless people.

In recent years, there has been a spate of citizenship cases in the courts, some brought by stateless people against the government for violating their constitutional rights. According to estimates by the United Nations High Commissioner for Refugees (UNHCR), there are 300,000 or more stateless people in Malaysia, the numbers growing with each generation. Stateless individuals cannot enroll in school, access public healthcare, open bank accounts or travel freely. Without identification papers, their futures remain uncertain.

Malaysian mothers who gave birth to children overseas have also demanded equal rights to pass on citizenship to their children. On Oct 17, 2024, the Dewan Rakyat passed a mixed bag of constitutional amendments to the Federal Constitution, expanding and reducing citizenship rights. The amendments include providing equal rights to married Malaysian mothers but also removing citizenship rights for children of permanent residents, and lowering the cut-off age for citizenship application to 18 from 21.

As of April 10, 2025, the amendments have not taken effect.

Despite the jus soli principle in the constitution, the government has repeatedly stated that legal marriage is more important than DNA, saying that genetic tests could support one’s claim of parentage but it could not conclusively provide the benefits of said parentage.

“Islam is the religion of our federation and we uphold Eastern values and our traditions. If we abandon the requirement of marriage and rely solely on DNA, the future of our generations will be at risk,” Home Minister Datuk Seri Saifuddin Nasution Ismail reportedly said in the Dewan Rakyat on Oct 17, 2024.

Estate law expert Assistant Prof Dr Wan Noraini Mohd Salim of International Islamic University Malaysia (IIUM) told Bernama that regulating marriages is necessary. Other than citizenship, marriages also affect maintenance, inheritance and property rights.

“In Malaysia, there must be a body (to ensure) that the marriage will be done through the right ceremony. If the ceremony is not right, we cannot say the marriage is legal,” she said.

“We have this law. The law requires that any marriage (overseas or otherwise) must be registered. And the purpose of the law is mostly to safeguard the rights of all the citizens.”

But the legitimacy and marriage requirements have created a cruel existence for those outside the citizenship bubble. While Malaysians in legal marriages, especially women, have their rights such as child support protected, it is the opposite for stateless women. Their status discourages them from exercising a fundamental right, which is to marry and procreate.

Meanwhile, Muslim children who are born less than six months from the date of the nikah or solemnisation of marriage are considered “born out of wedlock” and cannot have a ‘bin’ or ‘binti’ followed by the father’s name.

Non-Muslim children can be legitimised as long as their parents are legally married to each other later on and the father acknowledges the child. 

This does not affect citizenship, however, as the Federal Court in 2022 ruled 4-3 in the case ‘CTEB and Anors v. Director-General of the National Registration Department, Malaysia and Others’, stating that a child, who was illegitimate at birth, must follow the constitutional requirement on citizenship and legitimacy.

Once again, blood ties to a Malaysian mean little.

 

While modern science has given us the power to trace ancestry, determine biological parentage and even predict inherited diseases, DNA evidence remains largely irrelevant when it comes to parental recognition in Malaysia.

Attorney Agalya J. Munusamy, who specialises in citizenship cases among others, told Bernama that Malaysian citizenship laws often punish the child for their parents’  mistakes or misfortune.

She added she would like to see Malaysia follow the example of its neighbours Indonesia and the Philippines, whose national laws provide citizenship to any child born to a parent or parents who are nationals of the country, regardless of marital status.

“In my interpretation of the Federal Constitution, that is how it is. It is just that out of nowhere, the institution of marriage has been brought into a question of citizenship, which I do not necessarily agree with,” she said in her office in Petaling Jaya, Selangor.

“I understand that marriage is important, yes. It makes your country look good I suppose but you can't deny a human right which is citizenship to a child just because their parents are not married. That aspect of it does not sit well with me.”

On top of that, courts cannot compel anyone to give a DNA test in Malaysia unless it is part of criminal proceedings. Agalya said in cases where NRD officers request parents to provide a DNA sample to verify the parenthood of their children, falsifying records is technically a crime. Recently, there have been reports that many parents had allegedly paid money to a syndicate to falsify the birth certificates of their adopted children. The matter is being investigated by the NRD and Malaysian Anti-Corruption Agency.

Nevertheless, Agalya said she recommends that all her clients seeking citizenship for their children or themselves do DNA tests as a precautionary measure. There have been cases where DNA was the crucial piece of evidence that finally gave citizenship to formerly stateless people. 

One of the cases involved 44-year-old Sankar, who declined to be interviewed for this article. Abandoned as a child and with no birth certificate, he was considered stateless. A local non-governmental organisation Development of Human Resources for Rural Areas, Malaysia (DHRRA) found his Malaysian birth mother with help from the NRD in 2021, who agreed to provide a DNA sample. The test proved that Sankar was her biological son and therefore a Malaysian. 

In terms of inheriting property, DNA does play a role even though it does not guarantee success, said Wan Noraini of IIUM. 

“The law is indeed specific. Because to inherit, there must be a blood relationship. So that’s why DNA is one of the elements used to determine blood relationship,” she said. The methods and amount vary depending on religion, however.

According to the Islamic law of faraid, children born out of wedlock cannot inherit property from their father but he can work around this by gifting them part of the property while alive, but not at the cost of their legitimate siblings. Adopted children are entitled to one-third of their parents’ property, through a will. 

As for non-Muslims, illegitimate children can inherit if they have been legitimised or if they are mentioned in their father’s will. Illegitimate children, regardless of religion, can inherit from their mothers.

However, the inheritance is only legally enforceable as long as any party is not stateless.

In the case of Mazlan and his children, Wan Noraini said the children could technically inherit his property when he dies as they are fulfilled the conditions for a legitimate birth according to religious law. 

“This is because one of the grounds on which a person has the right to inherit is through blood ties. If that is established, the stateless person can still inherit. (But) problems may arise when he or she wants to register his or her name on the land title,” she said.

On the plus side, children born out of wedlock who are not stateless are entitled to child support and inherit property from their father but the distribution method and amount depends on the religion. Getting child support is not an easy matter, however, as the courts cannot compel DNA samples in civil cases.

 

But there are glimmers of hope. Recent court rulings and civil society groups have brought citizenship issues and stories like Mazlan’s to the forefront of the public’s consciousness.  

A landmark ruling a year ago has given new hope to Mazlan and others like him. On May 20, 2024, the Taiping High Court ruled that stateless people have a right to marry and that the NRD should register marriages involving stateless people, despite their status. The judge also wrote in her opinion, released on July 8 last year, that the Law Reform Marriage and Divorce Act 1976 does not require an identity card before a marriage can be solemnised and registered.

The government is appealing the ruling.

Agalya, who is a partner at the law firm of MahWengKwai and Associates, hopes the ruling stays put, saying it was a good development for Malaysia as it will allow the government to keep track of all marriages and divorces that occur within its borders as well as the status of the children who are born. 

“The grounds of the judgement … went to the root of the cause, which is, why do you deny stateless people the right to register anything? So my personal hope is that they do not disturb this judgement,” she said.

As for Mazlan, he hopes his case or another’s will build on the ruling, even though it is based on the 1976 Act, which pertains to non-Muslims. He wants the ruling to apply to all, regardless of religion. But the ruling does not solve all the family’s issues.

"If we can register our marriage, we (can get citizenship for the child). But we have to request special permission to go to Sabah to register. My spouse is stateless from Sabah. When you're stateless, it's not like you can just go here and there,” he said.

For now, he intends to look to the future and dream of the day when he will finally hear his daughter’s teachers calling out her name complete with ‘binti Mazlan’.