Citizenship eligibility must be determined at birth, and adoption does not retrospectively alter this status; a child born to a non-citizen mother retains citizenship of their birth nationality regardless of subsequent adoption.

[1] In this Originating Summons, the Plaintiffs seek declaratory and other relief affecting the citizenship of their adopted child ("CYH") who is a non-citizen as far as the Defendants are concerned.

[2] CYH was born on 13 March 2018 at a local hospital in Kuala Lumpur to an Indonesian mother and unknown father. The Plaintiffs met the birth mother before the birth of CYH, agreed to adopt CYH and went through the adoption formalities after his birth. CYH was formally adopted on 25 July 2018.

[3] A prior application by the Plaintiffs to register the child as a citizen using the process under art 15A of the Federal Constitution (" FC ") had been rejected by the Defendants. The Plaintiffs are now moving the Court under art 14(1)(b) of the which provides for citizenship by operation of law.

[4] Article 14(1)(b) of the FC provides that every person born on or after Malaysia Day and having the qualifications specified in Part II of the Second Schedule of the are citizens by operation of law. The provisions in Part II of the Second Schedule of the that the Plaintiffs rely on are as follows:

Section 1(a) of Part II of the Second Schedule of the FC ("Section 1 (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"

Section 1(e) of Part II of the Second Schedule of the FC ("Section 1(e)")

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

Analysis And Findings

Section 1(a) And Adoption

[5] The Plaintiffs contend that CYH qualifies for citizenship under s 1(a) because his adoptive parents are citizens of Malaysia. The short answer to this is that, as submitted by the Defendants, this Court is bound by the Federal Court decision in CTEB & Anor v. Ketua Pengarah Pendaftaran Negara Malaysia & Ors ; ("CTEB").

[6] Citing various cases, including Pendaftar Besar Kelahiran dan Kematian Malaysia v. Pang Wee See & Anor ; ("Pang Wee See") on s 1(a), the majority in CTEB held that:

(a) the acquisition of citizenship by operation of law under art 14 of the FC is based on the fulfilment of the qualifications set out in the that must be met at the time of birth; and

(b) the FC cannot be construed by reference to other laws such as the Legitimacy Act or Adoption Act which might retrospectively qualify a person.

[7] In Pang Wee See, the child in question was born in Malaysia, of unknown parentage and was adopted but failed to gain Malaysian citizenship by operation of law under s 1(a).

[8] Thus, the Plaintiffs' case that s 1(a) applies to adoptive Malaysian parents can be dealt with without going into the detailed analysis of the definition of "parents" and adoption laws as argued by the Plaintiffs. The section requires at least one of the parents to be Malaysian at the time of the child's birth. In this case, neither of the Plaintiffs was a parent to CYH at the time of his birth, and his subsequent adoption by them as Malaysian parents cannot retrospectively satisfy the requirement.

Section 1(e) And Registration Of Birth

[9] As for s 1(e), the Plaintiffs contend that CYH qualifies for citizenship because he was not born a citizen of another country within the meaning of that section.

[10] The Defendants take the position that CYH is not stateless because he has Indonesian citizenship, being born to an Indonesian mother. They argued this based on:

(a) Section 17 in Part III of the Second Schedule of the FC , that the ci