In an earlier article entitled “Citizenship for Adopted Children – A Malaysian Perspective [2013] 1 MLJ xiii”, we described the story of a child who was given up for adoption by his biological parents and was subsequently adopted by Malaysian citizens. In the judicial review proceedings, the parents sought from the High Court declarations that the child is a Malaysian citizen pursuant to Section 1(a) and Section 1(e) of Part II of the Second Schedule of the Federal Constitution. Lau Bee Lan J (now JCA) in Lee Chin Pon & Anor v Registrar-General of Births and Deaths, Malaysia [2010] (unreported) declared the child a citizen by operation of law.

Since the decision of Lee Chin Pon, a number of similar cases have been brought to the Courts with mixed results and inconsistent outcomes. In this article, we describe five cases in which the children (referred to as P, C, L, T and M to respect their privacy) sought judicial recognition of their citizenship by operation of law under Article 14 of the Federal Constitution. These matters originated in the High Court and were eventually set for joint hearings at the Federal Court.

Detailed submissions were prepared and filed in the Federal Court. Counsel were ready with oral arguments. However, after repeated adjournments, the appeals were ultimately settled when the Ministry of Home Affairs granted citizenship by registration under Article 15A of the Federal Constitution to the children. In the absence of a decision by the Federal Court on the merits of the novel issues, the uncertainty and inconsistencies in the law remain.

This article will start with a summary of the facts, issues and proceedings in the five cases. The arguments raised by parties in the written submissions filed in the Federal Court will also be set out. This article concludes with a description of the journey at the Federal Court leading to the amicable settlement of these matters.

In the matter of P (A Child)

P was born in 2001 at Taj Hospital, Jalan Ipoh, Kuala Lumpur. P’s biological parents were unknown. Mr and Mrs P had been fostering P since P was a baby. Mr and Mrs P formally adopted P under the provisions of the Adoption Act 1952 in September 2014. Following the Adoption Order, the National Registration Department (“NRD”) issued a new post-adoption birth certificate to P, registering P as a non-citizen instead of a Malaysian citizen. As a result, P was rendered stateless and ineligible for a MyKad and Malaysian passport.

Mr and Mrs P, represented by MahWengKwai & Associates (“MWKA”), filed an application at the Kuala Lumpur High Court for judicial review against the NRD to challenge the decision in registering P as a non-citizen. Mr and Mrs P sought declarations that:

(i) P is a Malaysian citizen by virtue of P’s legal adoption by Mr and Mrs P pursuant to Section 1(a) of Part II of the Second Schedule of the Federal Constitution (“Section 1(a) Second Schedule FC”) read with Sections 9 and 25A of the Adoption Act 1952; and 

(ii) P is a Malaysian citizen by virtue of P’s birth within the Federation pursuant to Section 1(e) read with Section 2(3) of Part II of the Second Schedule of the Federal Constitution (“Section 1(e) read with Section 2(3) Second Schedule FC”). 

Sections 1(a), 1(e) and 2(3) Second Schedule FC are as follows: 

PART II [Article 14(1)(b)]

Citizenship by operation of law of persons born on or after Malaysia Day 

1. Subject to the provisions of part III of this Constitution, the following persons born on or after Malaysia Day are citizens by operation of law, that is to say:

(a) every person born within the Federation of whose parents one at least is at the time of the birth either a citizen or permanently resident in the Federation; and …

“(e) every person born within the Federation who is not born a citizen of any country otherwise than by virtue of this paragraph.”

“2. (3) For the purposes of paragraph (e) of section 1 a person is to be treated as having at birth any citizenship which he acquires within one year afterwards by virtue of any provision corresponding to paragraph (c) of that section or otherwise.”

In March 2016, both prayers were allowed by Mohd Yazid bin Mustafa J and P was declared a Malaysian citizen pursuant to both Sections 1(a) and 1(e) Second Schedule FC. Mohd Yazid bin Mustafa J allowed Mr and Mrs P’s application for judicial review on the grounds that (i) Mr and Mrs P, both citizens, were P’s parents; and (ii) P was born in Malaysia and did not obtain citizenship of any foreign country within one year from the date of his birth.

Dissatisfied with the High Court’s decision, the NRD appealed to the Court of Appeal. At the Court of Appeal hearing on 3.1.2017 before Abang Iskandar bin Abang Hashim, Zaleha binti Yusof and Zamani bin A. Rahim JJCA, MWKA faced the challenge of having a panel with two judges who had previously decided against the child in Chin Kooi Nah (suing on behalf of himself and as litigation representative to Chin Jia Nee, child) v Pendaftar Besar Kelahiran dan Kematian, Malaysia (2016) (unreported) on similar issues. However, in the course of the hearing, the Court of Appeal (i) agreed to limit the NRD’s appeal to Section 1(a) Second Schedule FC only as Section 1(e) Second Schedule FC was not challenged in NRD’s Memorandum of Appeal; and (ii) was receptive to the submission that the earlier appeal in Chin Kooi Nah was incorrectly decided and should not be followed.

During the hearing, counsel for P, Mr Raymond Mah raised an objection when the Attorney-General’s Chambers (“AGC”), who was representing the NRD, attempted to submit on Section 1(e) Second Schedule FC. Counsel objected on the basis that the NRD’s Memorandum of Appeal failed to include Section 1(e) Second Schedule FC as one of its grounds. The Court of Appeal in its Grounds of Judgment [see Pendaftar Besar Kelahiran dan Kematian, Malaysia v Pang Wee See & Anor [2017] 3 MLJ 308] upheld the objection as follows:-

“[17] Premised on the above, we agreed with the Respondents that the Appellant was bound by its own pleadings. We therefore allowed the objection by learned counsel for the Respondents. 

[18] As a consequence thereof, the Appellant was allowed to prosecute this appeal based on what was pleaded in the MOA, which essentially could be summarised as follows, namely:-

      1. The Respondents failed to fulfil the requirements under Article 14, Part II, Section 1, Paragraph (a) of the Second Schedule of the Federal Constitution;
      2. The identity and whereabouts of the biological parents of the Child ought to be taken into consideration; and 
      3. The Adoption Act 1952 is not relevant in determining the Child’s citizenship.”

Essentially, the Court of Appeal ruled that the NRD’s appeal was limited to Section 1(a) Second Schedule FC. The NRD was prohibited from submitting further on Section 1(e) Second Schedule FC, and counsel for P did not have to respond on Section 1(e) Second Schedule FC. Given the ruling, counsel submitted that even if the NRD were to succeed on Section 1(a) Second Schedule FC, the High Court Order recognising the child’s citizenship under Section 1(e) Second Schedule FC should not be disturbed.

Surprisingly however, the Court of Appeal allowed NRD’s appeal against the whole of the High Court’s order, thereby setting aside the child’s right to citizenship under both Section 1(a) and (e) Second Schedule FC. It is clear from the Grounds of Judgment that the Court of Appeal did not consider the merits of the High Court’s decision on Section 1(e) Second Schedule FC. In respect of Section 1(a) Second Schedule FC, the Court of Appeal held that the reference to the word “parents” in Section 1(a) Second Schedule FC refers only to P’s biological parents. The Court of Appeal decided that the Adoption Act 1952 could not confer citizenship to an adopted child pursuant a legal adoption by Malaysian citizens. Mr and Mrs P accordingly did not fall within the meaning of “parents” in Section 1(a) Second Schedule FC. 

Mr and Mrs P then applied for leave to appeal to the Federal Court against the Court of Appeal’s decision and the panel (Hasan bin Lah, Zainun binti Ali and Abu Samah bin Nordin FCJJ) granted leave on 11.9.2017 on the following seven questions:- 

    1. Whether a child born in Malaysia who has been lawfully adopted by Malaysian parents would qualify for citizenship under Article 14(1)(b) and Part II Section 1 paragraph (a) and/or (e) of the Second Schedule of the Federal Constitution? 
    2. Whether “parents” in Article 14(1)(b) and Part II Section 1(a) of the Second Schedule of the Federal Constitution refers to a child’s “lawful parents” as opposed to a child’s biological parents? 
    3. Whether a birth certificate issued to a child under Section 25A of the Adoption Act 1952 is conclusive evidence of the identity of the child’s parents for all purposes pursuant to Sections 25A(5) and (6) of the Adoption Act 1952, including the determination of the child’s entitlement to citizenship by operation of law pursuant to Article 14(1)(b) and Part II Section 1 paragraph (a) of the Second Schedule of the Federal Constitution? 
    4. Whether a birth certificate which has been “surrendered” to the Registrar-General for cancellation pursuant to Section 25A(1)(b) of the Adoption Act 1952 and “replaced” by a new birth certificate issued pursuant to Section 25A(5) of the Adoption Act 1952, can still be referred to by the Registrar-General or the Courts for the purposes of determining a child’s parents? 
    5. Whether a child who (i) was born in Malaysia and (ii) did not acquire citizenship of any other country within one year from his/her birth date, is a citizen of Malaysia by operation of law pursuant to Article 14(1)(b) and Part II Section 1 paragraph (e) and Section 2(3) of the Second Schedule of the Federal Constitution? 
    6. Whether the words “not born a citizen of any country” in Part II Section 1 paragraph (e) of the Second Schedule of the Federal Constitution require a child to prove the identity of his/her biological parents and that they are not foreign citizens; or whether pursuant to Part II Section 2(3) of the Second Schedule of the Federal Constitution it is sufficient for a child to prove that he/she did not acquire citizenship of any country within 1 year from his/her birth? 
    7. Whether Article 15A of the Federal Constitution is an alternative relief to an application to the High Court to review an erroneous decision of the Registrar-General of Births and Deaths Malaysia which registers a child as a non-citizen? 

The Federal Court directed that the hearing for Mr and Mrs P’s substantive appeal, which was fixed on 6.3.2018, would be heard together with three other cases with similar issues.  

In the matter of C (A Child)

C was born in 2002 at Klinik Daya & Maternity Home, Kuala Lumpur. C’s biological parents were unknown. Mr and Mrs C had been fostering C since C was a baby. Mr and Mrs C formally adopted C under the provisions of the Adoption Act 1952 in June 2016. Following the Adoption Order, the NRD issued a new post-adoption birth certificate to C, registering C as a non-citizen instead of a Malaysian citizen. As a result, C was rendered stateless and ineligible for a MyKad and passport.

Mr and Mrs C, also represented by MWKA, filed an application for judicial review against the NRD to challenge the decision in registering C as a non-citizen. Mr and Mrs C sought similar declarations as P: that C be declared a Malaysian citizen by virtue of (i) C’s legal adoption by Mr and Mrs C; and (ii) C’s birth within the Federation. 

In May 2017, Mr and Mrs C’s application for leave to apply for judicial review was granted by Mohd Yazid bin Mustafa J. Two months later, Mr and Mrs C made an application pursuant to Section 84 of the Courts of Judicature Act 1964 to refer constitutional questions to the Federal Court (“Reference Application”). The constitutional questions, which justified a reference being made to the Federal Court, were similar to the seven leave questions allowed by the Federal Court in P’s appeal.  

On 8.9.2017, Mohd Yazid bin Mustafa J allowed the Reference Application and referred Mr and Mrs C’s application to the Federal Court on the seven constitutional questions. C’s hearing was then fixed on 6.3.2018 together with P, L and T’s appeal. 

In the matter of L (A Child)

L was born in October 2010 at Hospital Tung Shin, Kuala Lumpur. L’s biological father, Mr L, is a Malaysian while L’s biological mother is a citizen of Thailand. Mr L and L’s biological mother were never married. As a result, the NRD registered L as a non-citizen instead of a Malaysian citizen. Mr L and L’s biological mother separated in April 2011 and L’s biological mother returned to Thailand. L’s biological mother never returned to Malaysia. 

In April 2012, Mr L applied to the Ministry of Home Affairs (“MoHA”) for citizenship for L under Article 15A of the Federal Constitution (“Article 15A FC”). Pursuant to Article 15A FC, MoHA has the discretion to register a person under the age of 21 as a citizen under special circumstances. However, the application was rejected by MoHA in October 2013 without reasons. 

In April 2014, Mr L filed an application for judicial review against the NRD to challenge the decision in registering L as a non-citizen. Mr L sought declarations that L is a Malaysian citizen by virtue of (i) Mr L’s Malaysian citizenship and (ii) L’s birth within the Federation. However, Zaleha binti Yusof J (as she then was) granted leave only in respect of the second ground. 

Notwithstanding the undisputed fact that L was born within the Federation, Asmabi Mohamad J on 23.4.2015 dismissed Mr L’s application for judicial review. Mr L appealed to the Court of Appeal. The panel comprising David Wong Dak Wah, Badariah binti Sahamid and Harmindar Singh Dhaliwal JJCA dismissed the appeal on 16.3.2017. 

Mr L then applied for leave to appeal to the Federal Court against the Court of Appeal’s decision and was granted leave on 11.9.2017 on a single question:- 

Whether the principle of jus sanguinis or reference to blood or lineage is a requirement under Section 1(e) of Part II, Second Schedule of the Federal Constitution? 

The hearing for L’s substantive appeal was fixed on 6.3.2018 together with P, C and T’s appeal. 

In the matter of T (A Child)

T was born in 1998 at Poliklinik and Surgeri Wanita Taman Dato’ Ahmad Razali Ampang. T’s biological parents were unknown. Mr and Mrs T had been fostering T since T was a baby. Mr and Mrs T formally adopted T under the provisions of the Adoption Act 1952 in June 2012. Following the Adoption Order, the NRD issued a new post-adoption birth certificate to T. However, NRD registered T as a non-citizen instead of a Malaysian citizen. As a result, T was rendered stateless and ineligible for a MyKad and passport.

In June 2012, Mr and Mrs T applied to MoHA for citizenship for T under Article 15A. However, Mr and Mrs T’s application was rejected by MoHA without reasons. 

In May 2014, Mr and Mrs T filed an application for judicial review against the NRD to challenge the decision in registering T as a non-citizen. Mr and Mrs T sought declarations that T is a Malaysian citizen by virtue of (i) T’s legal adoption by Mr and Mrs T; and (ii) T’s birth within the Federation. However, the High Court granted leave only in respect to the second ground. 

Notwithstanding the undisputed fact that T was born within the Federation, Asmabi Mohamad J on 21.5.2015 dismissed Mr and Mrs T’s application for judicial review. On appeal to the Court of Appeal, the panel comprising David Wong Dak Wah, Badariah binti Sahamid and Harmindar Singh Dhaliwal JJCA upheld the High Court’s decision on 16.3.2017. T’s appeal was heard and dismissed together with L’s appeal. 

Mr and Mrs T applied for leave to appeal to the Federal Court against the Court of Appeal’s decision and was granted leave on 11.9.2017 on a single question similar to L’s appeal. The hearing for T’s substantive appeal was fixed on 6.3.2018 together with P, C and L’s appeal.

In the matter of M (A Child)

M was born in November 2005 at Hospital Tengku Ampuan Rahimah, Klang. M’s biological father, Mr M, is a Malaysian citizen while M’s biological mother, Mrs M, is a citizen of Papua New Guinea. Mr and Mrs M had only registered their marriage in Malaysia in January 2006, approximately two months after the birth of M. As a result, M was registered as a non-citizen and was rendered stateless and ineligible for a MyKad and Malaysian passport. 

Mr and Mrs M applied to MoHA for citizenship for M under Article 15A but it was rejected by MoHA in January 2013. In July 2013, Mr and Mrs M applied for the second time, but as at the date of filing of the originating summons, there was no reply from MoHA. 

In March 2016, Mr and Mrs M filed an originating summons for a declaration that M is the legitimate daughter to Mr and Mrs M, and for M’s birth to be legitimised through the subsequent marriage of the parents under the Legitimacy Act 1961, particularly Sections 4 and 5 which read as follows:-  

    1. Legitimation by subsequent marriage of parents 

Subject to section 3, where the parents of an illegitimate person marry or have married one another, whether before or after the prescribed date, the marriage shall, if the father of the illegitimate person was or is at the date of the marriage domiciled in Malaysia, render that person, if living, legitimate from the prescribed date or from the date of the marriage, whichever be the later. 

    1. Declarations of legitimacy of legitimated persons 

(1) A person claiming that he or his parent or any remoter ancestor became or has become a legitimated person may, whether domiciled in Malaysia or elsewhere, apply by petition to the High Court praying the Court for a decree declaring that the petitioner is the legitimate child of his parents, or that his parent or remoter ancestor was legitimate; and the High Court shall have jurisdiction to hear and determine the application and to make a decree declaratory of the legitimacy or illegitimacy of that person as to the Court may seem just; and that decree shall be binding to all intents and purposes on all persons whomsoever.

Mr and Mrs M further sought declarations that M is a citizen by virtue of (i) Mr M’s citizenship as a Malaysian citizen; and (ii) M’s birth within the Federation. 

On 20.9.2016, Zakiah Kassim J declared that M is a legitimate person pursuant to Mr and Mrs M’s subsequent marriage, but dismissed the prayer for a declaration of citizenship for M. Dissatisfied with the High Court’s decision, Mr and Mrs M appealed to the Court of Appeal. The panel comprising Mary Lim, Tengku Maimun and Kamardin Hashim JJCA on 28.3.2017 allowed M’s appeal and declared that M is a Malaysian citizen. The Court of Appeal in its Grounds of Judgment vide Madhuvita Janjara Augustin (suing through next friend Margaret Louisa Tan) v Augustin a/l Lourdsamy & Ors [2018] 1 MLJ 307 held, among others, as follows:- 

“(3) The undisputed fact is that the appellant was born within the Federation. To the extent of jus soli, she fulfilled the terms of qualification set out at s 1(a) of Part II of the Second Schedule. Since it was an uncontroverted and an admitted fact that the first respondent was the biological father of the appellant, the first respondent was the father and parent of the appellant, and as a citizen of Malaysia at the time of the appellant’s birth, the terms of art 14(1)(b) read with s 1(a) of Part II, Second Schedule were met. The fact that the appellant’s biological parents were not married to each other at the time of the appellant’s birth did not alter or diminish their capacities as parents of the appellant (see paras 48 & 59-60). 

(4) The appellant was not illegitimate. She was born of parents who were not married to each other at the time of her birth. However, she was no longer illegitimate by reason of legitimation by the subsequent marriage of her parents on 23 January 2006. Their marriage was properly solemnised and recognised under s 3 of the Legitimacy Act 1961 (‘the Act’). Where that happened, s 4 of the Act applied. With the clear terms of s 4, the appellant was rendered legitimate by the subsequent marriage of her parents and that legitimation was from the date of the marriage. As a legitimate person, the appellant was entitled to rely on her father’s citizenship (see paras 62 & 66).”

The Court of Appeal further held that M had shown that she is not a citizen of Papua New Guinea as her birth was registered in Malaysia. If M is not recognized as a Malaysian citizen, then she is stateless. 

“[77]  Coming back to the present appeal, in support of her application, the appellant has shown that she is not a citizen of Papua New Guinea. The appellant’s birth was not registered in Papua New Guinea. It was registered here instead. We agree with the submissions of learned counsel for the appellant that if the declaration sought is not given, if the appellant is not a citizen of the Federation, then she is stateless. That state would not and cannot be said to be in the best interest and for the welfare of the appellant. Consequently, the appellant satisfies the terms of art 14(1)(b) read with s 1(e) of Part II of the Second Schedule to the Federal Constitution.”

Dissatisfied with the Court of Appeal’s decision, the NRD applied for leave to appeal to the Federal Court and the panel (Ahmad bin Haji Maarop JFC, Hasan bin Lah JFC and Alizatul Khair binti Osman JFC) granted leave on 5.2.2018 on the following questions:- 

    1. Whether the reading of Section 3 and 4 of Legitimacy Act 1961 which clearly provides that where the parents of an illegitimate marries one another, the legitimacy status of the person will only begin from the prescribed date or date of marriage, whichever is later can and must be read together with Section 1 Part II Second Schedule of FC and Section 17 of Part III Second Schedule of FC in order to determine the person’s citizenship status under the operation of law? 
    2. Whether the Court may grant citizenship status by operation of law under Section 1(a) Part II Second Schedule FC to a person whom was legitimised based on the date of marriage of the person’s biological parents in accordance with Section 3 and Section 4 Legitimacy Act 1961? 
    3. Whether the citizenship status of the parents of a person can be ascertained:- 

a. Whether the said person has a right to obtain citizenship status by operation of law under Article 14(1)(b) FC and Section 1(e)? 

b. Whether pursuant to Section 2(3) Part II of Second Schedule FC, it is sufficient that the person did not acquire citizenship of any other country within 1 year of the person’s birth? 

Notwithstanding that the facts and law involved in the NRD’s appeal differed slightly from P, C, L and T, the hearing was similarly fixed on 6.3.2018 together with P, C, L and T’s appeals.

THE LEGAL ARGUMENTS:

The following arguments were raised by counsel in their respective written submissions. Dato’ Cyrus Das, Mr Raymond Mah, Mr John Chan, Ms Jasmine Wong and Mr Eric Toh were counsel for P and C at the Federal Court. Datuk Seri Gopal Sri Ram and Ms Latheefa Koya were counsel for L and T, while Ranee Sreedharan was counsel for M at the Federal Court. 

From the Attorney-General’s Chambers were Puan Suzana Atan (SFC), Tuan Shamsul Bolhassan (SFC), Puan Maisarah Juhari (SFC), Tuan Mohammad Sallehuddin bin Md Ali (FC) and Puan Kogilambigai a/p Muthusamy (FC) for the NRD and MoHA. 

RIGHT TO CITIZENSHIP PURSUANT TO SECTION 1(A) SECOND SCHEDULE FC

In the appeals brought by the appellants for P and C, the appellants sought a declaration that P and C are citizens of Malaysia by operation of law pursuant to Article 14(1)(b) and Section 1(a) Second Schedule FC. Section 1(a) Second Schedule FC reads as follows:- 

PART II [Article 14(1)(b)]

Citizenship by operation of law of persons born on or after Malaysia Day

1. Subject to the provisions of Part III of this Constitution, the following persons born on or after Malaysia Day are citizens by operation of law, that is to say:

(a) every person born within the Federation of whose parents one at least at the time of the birth either a citizen or permanently resident in the Federation.

Definition of the word “parents” in Section 1(a) Second Schedule FC

Counsel for the appellants submitted that the reference to the word “parents” in Section 1(a) Second Schedule FC is a reference to a child’s “lawful parents” as evidenced by the post-adoption birth certificate, and was not limited to the child’s biological parents. 

The phrases “biological parents” and “lawful parents” are distinct. While in a typical case, one’s biological parents are also the child’s lawful parents, however, that will not be so in the event of an adoption. Upon adoption, the adopted child’s “biological parents” are no longer his “lawful parents”; and his “lawful parents” are his adoptive parents. This is evidenced by the post-adoption birth certificate pursuant to Section 25A of the Adoption Act 1952.

It is therefore legally contradicting to say that a child’s citizenship under Section 1(a) Second Schedule FC is confined to his/her “biological and lawful parents”. Since the word “parent” is not defined in the Federal Constitution, reference ought to be made to the provision of the Adoption Act 1952 particularly when interpreting the word “parents” in Section 1(a) Second Schedule FC in respect of a child adopted under the Adoption Act 1952. Accordingly, an adopted child’s “parents” are his lawful and adoptive parents as conclusively evidenced by the post-adoption birth certificate issued pursuant to Section 25A of the Adoption Act 1952.

Post-Adoption Birth Certificate vs Pre-Adoption Birth Certificate

Counsel for the appellants submitted that a child born in Malaysia who has been lawfully adopted under the provisions of the Adoption Act 1952 by parents who are Malaysian citizens is a citizen by operation of law under Article 14(1)(b) and Section 1(a) Second Schedule FC. The words “parents” and “birth” in Section 1(a) Second Schedule FC must be determined with reference to the post-adoption birth certificate issued under Section 25A of the Adoption Act 1952

Pursuant to Section 25A of the Adoption Act 1952, the birth certificate issued subsequent to the adoption order “replaces” the pre-adoption birth certificate and “shall for all purposes” be known as the child’s only birth certificate. 

Section 25A of the Adoption Act 1952 also prohibits any reference to and reliance on the pre-adoption birth certificate. Once the pre-adoption birth certificate has been “surrendered” and “cancelled”, it becomes irrelevant and inadmissible “for all purposes” including the purpose of determining the child’s citizenship. This is provided for by the following subsections of Section 25A of the Adoption Act 1952:

25A. Certificate of Birth

1. In respect of the Certificate of Birth referred to in paragraph 25(2)(b), every adoption order shall contain a direction –

(a)…

(b) To the natural or adoptive parent or parents, as the case may be, to surrender to the Registrar-General the Certificate of Birth of the child issued under the Births and Deaths Registration Act 1957.

2. Upon receipt of an adoption order, the Registrar-General shall, subject to due compliance with paragraph 1(b) and the payment by the adopter of the prescribed fee, issue a Certificate of Birth in respect of the child in the form set out in the Second Schedule.

3. …

4. Upon receipt of the Certificate of Birth under subsection (3), the adoptive parent or either of the adoptive parents, or in the event of the adoptive parent or both adoptive parents being dead, the adopted child, shall cause the certified copy of an entry in the Adopted Children Register issued in respect of the adopted child to be surrendered to the Registrar-General for cancellation.

5. The Certificate of Birth issued under this Act pursuant to an adoption order shall replace the Certificate of Birth of the child issued under the Births and Deaths Registration Act 1957, and shall for all purposes be known as the Certificate of Birth of the child.

6. Notwithstanding anything to the contrary in any written law, the Certificate of Birth under this Act, if given under the hand of the Registrar-General or any person authorized by him, shall be received without further or other proof as evidence of the facts and particulars relating to the birth of the child in respect of whom the Certificate of Birth was issued. 

Accordingly, the post-adoption birth certificate is the only admissible and relevant evidence in determining who the child’s parents are. Any reference to any facts or particulars in the pre-adoption birth certificate, even for the purpose of determining the child’s citizenship or parents, is unlawful and a breach of Section 25A of the Adoption Act 1952. 

Post-Adoption Birth Certificate is Conclusive

It was submitted that pursuant to Section 25A(6) of the Adoption Act 1952, the post-adoption birth certificate is the only evidence that is relevant and admissible in determining the question of who the child’s parents are “for all purposes” including the determination of the child’s citizenship. 

Section 25A(6) unambiguously states that the “facts and particulars relating to the birth” as stated in the post-adoption birth certificate “shall be received without further or other proof”. Therefore, the post-adoption birth certificate which registers the adoptive parents’ names as the child’s parents is conclusive evidence and conclusive proof of the identity of the child’s parents “for all purposes”. The appellants relied on the Explanatory Statement to the Adoption (Amendment) Bill 2000 in support of their submission to explain the Parliament’s intention in introducing Section 25A into the Adoption Act 1952: 

“3. … With the issuance of a new Certificate of Birth under Act 257 which, by the new subsection 25A(6), shall be conclusive evidence of the facts and particulars relating to the birth of the child in respect of whom the Certificate of Birth was issued, the purpose for subsection 25(10) no longer exists.

4.… By virtue of subsection 25A(6), the Certificate of Birth under Act 257 given under the hand of the Registrar-General shall be conclusive proof of the facts and particulars relating to the birth of the child to whom it relates.”

Therefore, the particulars in the post-adoption birth certificate are conclusive evidence and conclusive proof that the child was born in Malaysia and that the appellants are the child’s parents for all purposes. The pre-adoption birth certificate is irrelevant and inadmissible.

Notwithstanding any written law

It was submitted by counsel for the appellants that the phrase “written law” in the opening phrase of Section 25A(6) of the Adoption Act 1952, which reads “Notwithstanding anything to the contrary in any written law”, includes the Federal Constitution. See Article 160(2) of the Federal Constitution and Sections 3 and 66 of the Interpretation Acts 1948 and 1967. 

It is also significant that Section 25A(6) of the Adoption Act 1952 uses the words “Notwithstanding anything to the contrary in any written law” whereas Section 33(1) of the Births and Deaths Registration Act 1957 uses “Subject to the provisions of this section”. This means that the post-adoption birth certificate issued under Section 25A of the Adoption Act is intended to prevail over the pre-adoption birth certificate issued under the Births and Deaths Registration Act 1957. 

Deemed Born in Lawful Wedlock

Counsel for the appellants submitted that the child is deemed to have been born to the appellants “in lawful wedlock”, pursuant to Section 9 of the Adoption Act 1952. Section 9 of the Adoption Act 1952 reads as follows:- 

  1. Effect of adoption order 

(1) Upon an adoption order being made, all rights, duties, obligations and liabilities of the parent or parents, guardian or guardians of the adopted child, in relation to the future custody, maintenance and education of the adopted child, including all rights to appoint a guardian or to consent or give notice of dissent to marriage shall be extinguished, and all such rights, duties, obligations and liabilities shall vest in and be exercisable by and enforceable against the adopters as though the adopted child was a child born to the adopter in lawful wedlock.

It cannot be the intention of the Adoption Act 1952 to confer all other rights and responsibilities on the adoptive parents, and yet leave an adopted child to take after the child’s biological parents’ citizenship, resulting in an adopted child being rendered stateless or having different citizenship from his adoptive parents. This is contrary to the purpose of the Adoption Act 1952 which aims to preserve and protect the child’s welfare and best interest at all times. 

The counsel further submitted that full regard must be given to the words “shall for all purposes” in Section 25A(5) of the Adoption Act 1952 in respect of the new birth certificate being issued to the adopted child pursuant to the adoption order. Its legal effect is to treat the adopted child as if the child was born to the adoptive parents and the adoptive parents being regarded as the natural biological parents of the child. 

The NRD’s refusal to register the child as a Malaysian citizen would make it apparent to the child that the child is adopted and such knowledge is likely to have an adverse psychological effect on the child. The appellants relied on the Explanatory Statement to the Adoption (Amendment) Bill 2000 which states that the Parliament’s purpose and intention in the Adoption (Amendment) Act 2001 is to prevent the disclosure of the adoption and the adverse effects that may occur to an adopted child. 

“Under paragraph 25A(1)(a), the Court shall, in an adoption order, direct the Registrar-General to ensure that the words “adopted”, “adopter” or “adoptive” or similar words shall not appear in the Certificate of Birth. The omission of such words in the Certificate of Birth is considered necessary to prevent the possibility that knowledge of the fact of being adopted would have adverse psychological effect on an adopted child who is unprepared to learn of his actual backgrounds or status.”

RIGHT TO CITIZENSHIP PURSUANT TO SECTION 1(E) SECOND SCHEDULE FC

The appellants for P and C further sought a declaration that P and C, who remained stateless for a year after their birth, are citizens of Malaysia by operation of law pursuant to Article 14(1)(b) and Section 1(e) Second Schedule FC. 

PART II [Article 14(1)(b)]

Citizenship by operation of law of persons born on or after Malaysia Day

    1. Subject to the provisions of Part III of this Constitution, the following persons born on or after Malaysia Day are citizens by operation of law, that is to say:

(e) every person born within the Federation who is not born a citizen of any country otherwise than by virtue of this paragraph.

The phrase “not born a citizen of any country” must be read together with Section 2(3) Second Schedule FC in determining the child’s citizenship by operation of law. Section 2(3) Second Schedule FC states the following:- 

“2(3) For the purposes of paragraph (e) of section 1 a person is to be treated as having at birth any citizenship of which he acquires within one year afterwards by virtue of any provision corresponding to paragraph (c) of that section or otherwise”.

Accordingly, the appellants submitted that a child who (i) was born in Malaysia and (ii) did not acquire citizenship of any other country within one year from his/her date of birth, is a citizen of Malaysia by operation of law pursuant to Section 1(e) and Section 2(3) Second Schedule FC. 

Simple verification of facts

Counsel for the appellants submitted that there is no room under Article 14 FC for the NRD to exercise any discretion or to consider any public policy. The phrase “by operation of law” in Article 14(1)(b) FC requires only simple verification of facts in order to satisfy the requirement of any paragraphs in Section 1 Second Schedule FC. 

In the appeals for both P and C, it was undisputed that both P and C have duly satisfied the requirements under Section 1(e) and Section 2(3) Second Schedule FC to be recognized as citizens of Malaysia by operation of law as they:- 

a) were born “within the Federation” (these particulars are consistent in both the pre- and post-adoption birth certificates of P and C); and 

b) remained stateless and were not made citizens of any other country within one year from P and C’s respective date of birth.  

THE NRD’S ARGUMENTS

In opposing the appeals brought by the respective litigation representatives for P, C, L and T, Federal Counsel appearing for NRD raised the following arguments: 

Lack of information on the biological parents disqualifies the child from citizenship by operation of law

Section 1(a) Second Schedule FC

The NRD interpreted the phrase “whose parents one at least is at the time of the birth” in Section 1(a) Second Schedule FC to mean that apart from the child’s place of birth, the origin of the paternal and maternal side of the child must be ascertained and the existence of marriage and registration of marriage must be proven. 

The NRD argued that “lawful parent” refers to the biological father and mother in a valid marriage. In support of this argument, the NRD relied on Foo Toon Aik (suing on his own behalf and as representative of Foo Shi Wen, child) v Ketua Pendaftar Kelahiran dan Kematian, Malaysia [2012] 9 MLJ 573; Nedunchelian v Uthiradam v Nurshafiqah Mah Singai Annal & Ors [2005] 2 CLJ 306; Shamala Sathiyaseelan v Dr Jeyaganesh C Mogarajah & Anor [2004] 2 CLJ 416. 

Accordingly, it was submitted by the NRD that because the biological parents of P, C and T were not identifiable on the respective children’s birth certificates, P, C and T had, therefore, failed to fulfil the requirements of Article 14(1)(b) and Section 1(a) Second Schedule FC. 

It was further submitted that L and M could not be a citizen of Malaysia by operation of law because their respective biological parents were not legally married at the time of L and M’s birth. The non-existence of marriage between the parents of L and M respectively had defeated the cardinal requirement under Section 1(a) Second Schedule FC. Furthermore, by virtue of Section 17 Part III Second Schedule FC, L and M’s citizenship was determined by the citizenship of their biological mother i.e. a citizen of Thailand and Papua New Guinea respectively. 

Section 1(e) Second Schedule FC

For similar reasons, the NRD submitted that the phrase “every person born within the Federation who is not born a citizen of any country” in Section 1(e) Second Schedule FC must be based on the citizenship of the biological parents of the child. As the biological parents of P, C and T were unknown, it cannot be determined whether the children were born a citizen of any country. 

No requirement to identify the child’s biological parents 

In response to the NRD’s submission that the children were required to identify their biological parents to qualify for citizenship by operation of law pursuant to Section 1(e) Second Schedule FC, counsel for the appellants submitted that the information on the biological parents is irrelevant for the purposes of determining citizenship under Section 1(a) and Section 1(e) Second Schedule FC for the following reasons:- 

a) The rights of the biological parents over the child were completely extinguished upon the Adoption Order being granted pursuant to Section 9 of the Adoption Act 1952; 

b) The pre-adoption birth certificate containing (or lack of) the particulars of the child’s biological parents had been surrendered, cancelled and replaced by the post-adoption birth certificate pursuant to Section 25A of the Adoption Act 1952; and

c) Section 1(e) Second Schedule FC is concerned only with the child’s place of birth and statelessness. In all the five appeals, the children were born in Malaysia and did not acquire citizenship of any country within one year from their respective date of birth.

Further, there is no express requirement for the appellants to determine the identity and citizenship of the child’s biological parents in order to satisfy the requirements under Section 1(e) Second Schedule FC. If Section 1(e) Second Schedule FC were to be interpreted to require proof that the child’s biological parents are Malaysians, there would be a clear overlap between Section 1(a) and Section 1(e), with the result that Section 1(e) would be rendered nugatory. This is contrary to trite principles on statutory interpretation. 

The purpose of Section 1(e) Second Schedule FC is a safeguard to prevent and reduce statelessness in the country. Therefore, it was submitted by the appellants that the only relevant question pertaining to the interpretation of Section 1(e) read together with Section 2(3) Second Schedule FC is whether a child born in Malaysia acquired citizenship of any other country within one year from the child’s date of birth. If that answer is no, the child is a Malaysian citizen by operation of law. 

Adoption Order does not automatically grant citizenship to an adopted child

The NRD argued that an Adoption Order does not automatically grant citizenship to an adopted child because the Adoption Act 1952 is silent on the issue of citizenship. The effect of the Adoption Order in Sections 9 and 25A of the Adoption Act 1952 only covers the maintenance, education, welfare and property of the child. It does not, however, provide for citizenship by operation of law for an adopted child. The NRD relied on Chin Kooi Nah (suing by herself and as next of kin to Chin Jia Nee, an Infant) v Pendaftar Besar Kelahiran dan Kematian, Malaysia [2016] 1 CLJ 736 which held that the Legislature would have expressly provided for the citizenship of the adopted child if it indeed had such intention. 

In response, the appellants submitted that the question to be asked is not “Whether an Adoption Order can automatically grant citizenship to an adopted child?”. Instead, the correct question to be asked is “Who are the child’s parents?” The reference to “parents” in Section 1(a) Second Schedule FC is a reference to a child’s “lawful parents” as evidenced by the post-adoption birth certificate, as opposed to a child’s biological parents. Pursuant to that, the respective appellants in both the appeals of P and C are the parents for all purposes and this is conclusively evidenced by P and C’s post-adoption birth certificates respectively. 

Issue of the child’s illegitimacy

The NRD relied on Section 17 Part III Second Schedule FC in support of its argument that the legitimacy of the child needs to be ascertained before deciding whether the requirements under Section 1(a) Second Schedule FC are fulfilled. Pursuant to Section 17 Part III Second Schedule FC, any reference to the father of an illegitimate child in Part III of the Federal Constitution shall refer to the child’s mother. Section 17 Part III Second Schedule FC reads as follows:- 

    1. For the purposes of Part III of this Constitution references to a person’s father or to his parent, or to one of his parents, are in relation to a person who is illegitimate to be construed as references to his mother, and accordingly Section 19 of this Schedule shall not apply to such a person. 

In response, the appellants submitted that the issue of illegitimacy is irrelevant and contrary to the express provisions of the Adoption Act 1952. In the event the court finds that the issue of illegitimacy was relevant, the question of a child’s legitimacy ought to be determined by way of reference to her lawful parents and their lawful marriage. The court and the government authorities cannot disregard the express provision of Section 25A(6) of the Adoption Act 1952 which provides that “notwithstanding anything to the contrary in any written law”, the child’s birth certificate “shall be received without further or other proof as evidence of the facts and particulars relating to the birth of the child.”

Reliance on Section 18 Part III Second Schedule FC

It was submitted by the NRD that the only written law in the Federal Constitution applicable to an adoptive parent is Section 18 Part III Second Schedule FC. The NRD relied on Section 18 Part III Second Schedule FC which expressly provides that a person under the age of twenty-one years who was born before the beginning of October 1962 and whose adoptive father is a citizen may apply to be registered as a citizen. Accordingly, the information regarding the adopter is only applicable to Article 15(3) FC and Section 9 Part III Second Schedule FC, and not to Article 14(1)(b) and Part II Second Schedule FC. 

The appellants, in response, submitted that Section 18 Part III Second Schedule is irrelevant because it concerns an adopted child born before October 1962. The provisions for citizenship, particularly Section 1(a) Second Schedule FC must be interpreted in light of the amendments to the Adoption Act 1952 which came into operation on 15 February 2001, including the new Section 25A(6) of the Adoption Act 1952 which opens with the phrase “notwithstanding anything to the contrary in any written law”. 

Therefore, the citizenship of an adopted child under Article 14(1)(b) must be read together with Section 25A(6) of the Adoption Act 1952, pursuant to which the post-adoption birth certificate issued under Section 25A shall be conclusive proof of the particulars stated therein, including the child’s place of birth and parents. 

Principles of jus soli and jus sanguinis

The NRD argued that Article 14 FC and Section 1(e) Second Schedule FC must be based on the principles of jus soli (a right acquired by virtue of the soil or place of birth) and jus sanguinis (a right acquired by virtue of lineage), as they were the intention of the drafters of the Constitution. The NRD relied on Lim Jen Hsian & Anor v Ketua Pengarah Jabatan Pendaftaran Negara & Ors [2018] 6 MLJ 548 in support of their submission to state that it is also the intention of the drafters for the principle of jus soli to be upheld and that the determination of the origin of the biological parents must be made. 

In response, the appellants submitted that the issues of jus soli and jus sanguinis are irrelevant to the appeals. This is because the children’s citizenship by operation of law is to be determined only by reference to Sections 1(a) to (e) Second Schedule FC. It is erroneous to disregard the express words of Sections 1(a) to (e) in favour of either the jus soli or jus sanguinis principle. 

Even if the principle of jus soli or jus sanguinis were to be considered, these principles were unhelpful because Sections 1(a) to (e) Second Schedule FC demonstrate a deliberate mixture of both the jus soli and jus sanguinis principles. 

a) Section 1(a) Second Schedule FC is a mix application of both the jus soli and jus sanguinis principles requiring; (i) the child to have been born in Malaysia (jus soli); and (ii) either parent to be a citizen (jus sanguinis) – see Pendaftar Besar Kelahiran dan Kematian Malaysia v Pang Wee See & Anor [2017] 3 MLJ 308

b) Section 1(b) Second Schedule FC is based on the jus soli of the father – see Haja Mohideen MK Abdul Rahman & Ors v Menteri Dalam Negeri & Ors [2007] 8 MLJ 1

c) Section 1(c) Second Schedule FC is based on the jus sanguinis principle without reference to any birth within the Federation. 

d) Section 1(d) Second Schedule FC is based on the jus sanguinis of either parent wherein the child was born in Malaysia. 

e) However, what is clear is that Section 1(e) Second Schedule FC is based solely on the jus soli principle and confers citizenship by operation of law by virtue of the child’s birth within the Federation. 

Therefore, the children having been born in Malaysia and who did not acquire citizenship of any foreign country within one year from the children’s respective dates of birth are entitled to Malaysian citizenship by virtue of the jus soli principle, as enshrined in Section 1(e) Second Schedule FC. 

Reliance on Section 2(1) Second Schedule FC in interpreting Section 1(e) Second Schedule FC

Finally, the NRD submitted that Section 2(1) Second Schedule FC applied and prevented the children from being recognised as citizens under Section 1(e) Second Schedule FC. The argument was that it could not be proved conclusively that the biological father was not “possesses such immunity from suit and legal process as is accorded to an envoy of a sovereign power accredited to the Yang di-Pertuan Agong” or “an enemy alien and the birth occurs in a place under the occupation of the enemy.”

The appellants in response submitted that pursuant to the post-adoption birth certificate, the appellants are the child’s parents for all purposes. Accordingly, Section 2(1) Second Schedule FC is wholly irrelevant as the appellants are Malaysian citizens and not foreign diplomats in Malaysia, and the appellants are not an “enemy” of Malaysia, nor is there any place in Malaysia presently under the occupation of an “enemy”.  

In any event, the appellants submitted that the burden was on the NRD to prove by evidence, of which there was none, that the biological father fell into one of the categories stated in Section 2(1) Second Schedule FC. The burden was not on the appellant to prove that Section 2(1) did not apply. 

JOURNEY AT THE FEDERAL COURT

The appeals for P, C, L and T, together with the NRD’s appeal in M’s matter were initially fixed for hearing in the Federal Court on 6.3.2018, much to the anticipation of interested parties as the appeals would affect the rights of all stateless children. The much-anticipated hearing of the five appeals on 6.3.2018 was reported by the Malay Mail (Ida Lim, “Apex court to rule on citizenship requirements for five Malaysia-born stateless personsMalay Mail, 6.3.2018). However, much to the disappointment of the parties, the hearing was repeatedly postponed to 2.4.2018, 30.5.2018, 4.6.2018, 23.7.2018, 30.8.2018 and 25.10.2018 respectively. One of the reasons for adjournment was the change of government during the 14th General Election on 9.5.2018 which resulted in the NRD requesting a postponement of the hearing on 4.6.2018 to enable them to seek fresh instructions from the new government (see Ida Lim, “Five stateless persons’ case postponed as AGC seeks Home Ministry’s instructionsMalay Mail, 4.6.2018). 

Subsequently, another postponement of the hearing was due to the directions by the newly-appointed Chief Justice of Malaysia, Tan Sri Richard Malanjum for constitutional cases to be heard before a panel of nine judges. Therefore, the hearing on 23.7.2018 was vacated for a new panel of judges to be selected and the hearing was then rescheduled to 30.8.2018 (see V. Anbalagan “Stateless kids: Court forms first 9-member bench to hear appeals”, FMT News, 17.7.2018). 

At the hearing on 30.8.2018, the AGC once again requested for a postponement on the basis that (i) the AGC required more time to peruse the documents and to advise the MoHA on the appeals; and (ii) MoHA was unable to give a response on the children’s Article 15A applications as the Home Minister was on medical leave. The appellants objected to the AGC’s request as the hearing had been postponed since March 2018. Richard Malanjum CJ who chaired the bench of nine judges expressed concern that the delay would affect the welfare of the children. However, in light of the circumstances and despite the appellants’ objections, Richard Malanjum CJ eventually allowed the AGC’s request for a final postponement. The final hearing date was fixed on 25.10.2018 and Richard Malanjum CJ remarked: “Rain or shine, the case will go on.” (See Bernama, “Federal Court grants final adjournment in hearing over stateless children”  New Straits Times, 30.8.2018 and V. Anbalagan “Hearing on stateless children postponed for 5th timeFMT News, 30.8.2018)

At the outset of the hearing on 25.10.2018, the Federal Court was informed that MoHA, by way of the AGC’s letter dated 23.10.2018, had agreed to register the children, M and T, as Malaysian citizens upon reconsidering their applications for citizenship pursuant to Article 15A FC. As such, the appellants for T and the NRD in M’s appeal withdrew their respective appeals from the Federal Court. 

However, the approval under Article 15A FC could not be similarly extended to L on the basis that at the time the Article 15A application was made, L’s mother was declared to be residing in Malaysia. Therefore, it was recommended that L submits a new application under Article 15A FC to establish the current residency of L’s mother. 

MoHA, in the same letter, took further cognizance of the fact that P and C did not make any Article 15A FC application and had therefore invited both P and C to apply for citizenship pursuant to Article 15A FC. The appellants agreed in good faith to a further postponement of the hearing to 14.2.2019 pending their Article 15A applications to MoHA. (See Bernama, “Citizenship given to 2 stateless children, 3 others to be consideredFMT News, 25.10.2018) 

Pursuant to MoHA’s invitation to apply for citizenship by registration under Article 15A FC, the appellants for P and C submitted their applications on 29.10.2018 in good faith and without prejudice to the pending appeals. Much to the appellants’ surprise, MoHA rejected the appellants’ applications under Article 15A FC by way of its letter dated 22.11.2018 without providing reasons or grounds. MWKA on behalf of the appellants immediately sent a letter to MoHA on 30.11.2018 to request for the grounds of rejection of the Article 15A applications. However, no response was received from MoHA. 

At the same time, the appellants also sent a letter to the Attorney-General, Tommy Thomas, requesting for a meeting to discuss the Article 15A applications and the possibility of reaching an amicable settlement for the above appeals. However, there was no response received from the Attorney-General. 

On 12.2.2019, two days before the hearing on 14.2.2019, the appellants received a letter from the Pejabat Penasihat Undang-Undang, Kementerian Dalam Negeri (“PUU KDN”) requesting for a postponement of the hearing on 14.2.2019 on the ground that PUU KDN was instructed by the AGC to take over conduct of the remaining three appeals from the AGC. The appellants immediately objected to PUU KDN’s request for a postponement of the hearing on the basis that the taking over of conduct by PUU KDN from the AGC is an internal issue which should not be a ground for PUU KDN to delay the progress of the appeals. The hearing of the appeals was fixed as early as 6.3.2018 and any internal transfer of the appeals ought to have been made much earlier to prevent the appellants from being prejudiced by the late transfer. 

The following day, the Federal Court denied PUU KDN’s request for a postponement and directed for the hearing to proceed on 14.2.2019. (See Ida Lim, “Three Malaysia-born stateless kids’ long road to citizenship continuesMalay Mail, 14.2.2019)

On 14.2.2019, the appellants for P, C and L were handed letters from MoHA approving the children’s applications for citizenship pursuant to Article 15A FC. The appellants requested for an assurance that the children’s post-adoption birth certificates would be amended and reissued in green as their current post-adoption birth certificates were in red and carried an endorsement “Bukan Warganegara” (non-citizen). The legal advisor from PUU KDN, Mohammad Al-Saifi bin Haji Hashim, confirmed the matter and made a representation to the Federal Court, informed the Federal Court, chaired by the President of the Court of Appeal, Tan Sri Ahmad Maarop, that the necessary due process would take place. Based on that representation, the appellants withdrew their appeals in good faith. (See Bernama “After years of legal battles, three stateless children get citizenshipThe Star, 14.2.2019 and V. Anbalagan “Putrajaya grants citizenship to 3 stateless childrenFMT News, 14.2.2019) 

CITIZENSHIP BY REGISTRATION UNDER ARTICLE 15A FC

Approximately three weeks after the hearing in the Federal Court on 14.2.2019, both the children, P and C, finally obtained their respective Certificates of Citizenship which registered them as Malaysian citizens under Article 15A FC. Pursuant to the representation made by the PUU KDN on 14.2.2019 that the necessary due process would take place to change the children’s red birth certificates to green, the appellants wrote to the NRD requesting for the children’s red birth certificates to be cancelled and replaced with green birth certificates, registering the children as citizens of Malaysia. 

Notwithstanding the representation made by PUU KDN on 14.2.2019, the NRD refused to replace the children’s red birth certificates on the basis that the post-adoption birth certificates were correctly issued and that the children had obtained Malaysian citizenship only after the issuance of the post-adoption birth certificates. The NRD officers further advised P and C that they are required to show both the post-adoption birth certificate and the Certificate of Citizenship for any official purposes in the future. 

This is perhaps the most apparent difference between a child who is recognised as a citizen by operation of law under Article 14 FC and a child who is registered as a citizen under Article 15A FC. In contrast to P and C, the child in Lee Chin Pon & Anor v Registrar-General of Births and Deaths, Malaysia [2010] (unreported) whose citizenship was declared by the High Court had his birth certificate reissued in green with “Citizen” clearly endorsed on it. Additionally, a citizen by registration can also be deprived of citizenship by the Federal Government under Article 25 and 26 FC, unlike a citizen by operation of law.

CONCLUSION

As a result of the registration of the five children as Malaysian citizens under Article 15A FC, the Federal Court did not have the opportunity to hear and decide on the various novel and important questions of law on citizenship of stateless children. There is thus no precedent from the Federal Court on these issues, which would have been of great assistance to other children facing the same predicament in Malaysia. Mr Raymond Mah, who was one of the counsel for P and C, addressed this concern for the development of the law in a BFM Radio interview (Julian Ng, “Status: Malaysian” BFM Radio, 14.2.2019).

It is clear to the authors that the drafters of the Federal Constitution had intended to avoid the problem of statelessness among children in Malaysia. However, unless the Malaysian government authorities, particularly the NRD, start recognizing the children’s rights to citizenship by operation of law under the Federal Constitution, it seems that other stateless children will have to start their own long journey through the Malaysian court process for the recognition of their rights to Malaysian citizenship. 

By Raymond Mah and Jasmine Wong

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