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2024 MarsdenLR 1440
HIGH COURT MALAYA MELAKA
MOHD RADZI ABDUL HAMID, J
DDL & ANOR – Appellant
Versus
PENDAFTAR BESAR KELAHIRAN DAN KEMATIAN MALAYSIA – Respondent
[Civil Suit No: MA-24NCvC-60-03/2022]
Citizenship under the Federal Constitution is determined by biological parentage, and the Adoption Act does not grant citizenship rights to adopted children.
Headnote:(A) Federal Constitution - Articles 14(1)(b), 1(a), 1(e), 2(3), 19B - Citizenship application for a child born to a non-citizen mother - Court held that citizenship is determined by biological parentage and the Adoption Act does not confer citizenship upon adopted children. (Paras 6, 8, 37)
(B) Interpretation of Citizenship Law - Court emphasized that citizenship provisions must be interpreted broadly to protect fundamental rights, but must adhere strictly to the Constitution's text. (Paras 46-50)
(C) Burden of Proof - The Plaintiffs failed to prove the child's citizenship since the biological mother was a Sri Lankan citizen, and the requirements under the Federal Constitution were not met. (Paras 23, 37)
Facts of the case:
The child was born to a Sri Lankan mother and later adopted by Malaysian citizens. The adoption was formalized after the mother surrendered her rights, but citizenship was not granted due to the biological mother's nationality. (Paras 2-4)
Findings of Court:
The Court found that the criteria for citizenship by operation of law under the Federal Constitution were not met and dismissed the application. (Para 37)
Issues: Whether the child is a citizen of Malaysia by operation of law based on the biological parent's nationality and the implications of adoption on citizenship status. (Paras 8, 37)
Ratio Decidendi: The Court ruled that citizenship is determined by biological parentage and the Adoption Act does not confer citizenship under the Federal Constitution. (Paras 6, 37)
Result: Application dismissed with no order as to costs.
Introduction
[1] This is the grounds of decision of this Court in respect of an application filed by the 1st and 2nd Plaintiffs acting on their behalf and as litigation representatives of a minor child named RAPD (name redacted to maintain anonymity) ('Child') for a principal order under para 1 of encl 37 that the Child be declared a citizen of Malaysia pursuant to the operation of art 14(1)(b) read together with s (1)(a) under Part II and s 19B under Part III of the Federal Constitution (' FC ') or alternatively, pursuant to the operation of art 14(1)(b) read together with section (1)(e) and 2(3) under Part II of the Second Schedule of the ('Application'). In addition to that principal order, the Plaintiffs further seek relevant consequential orders as set forth in paras 2, 3, 4 and 5 therein.
Background Facts
[2] The Child was born on 14 March 2019 to a woman known as DMPK ('the Biological Mother') at Hospital Sultanah Nora Ismail, Batu Pahat in the State of Johore. Some 8 months later, on or about 24 November 2019, both Plaintiffs were informed of the Biological Mother's desire to give up the Child for adoption. An agreement was struck on the same day between them when the Biological Mother agreed to surrender all her parental and guardianship rights to both Plaintiffs who would adopt the Child as their own. Both Plaintiffs are husband and wife and are Malaysian citizens.
[3] Since the birth of the Child was not registered at the time of birth, a late registration of the birth was done by the Plaintiffs on 24 November 2019 and a birth certificate dated 21 July 2020 was issued by Jabatan Pendaftaran Negara. In that certificate, the Biological Mother was identified as a Sri Lankan citizen bearing passport No N5224496. At the time of giving birth she was 37 years old. The biological father of the child is not known. The certificate was marked as 'Bukan Warganegara' ('First BC').
[4] Both Plaintiffs then filed formal applications to adopt the Child and the relevant orders were granted by the Melaka Sessions Court on 28 October 2020. Following that order, a new birth certificate was issued dated 12 April 2021 wherein the 1st Plaintiff is registered as the father and the 2nd Plaintiff as the mother. However, the New BC was marked as 'Bukan Warganegara' ('New BC'). Thus, the reason for the Application.
[5] In this judgment, references to "Articles", "Part II", "Part III" and "Second Schedule" are to that of the FC .
The Law On Citizenship
[6] It has been decided in a string of cases and reiterated in the Court of Appeal decision in Pendaftar Besar Kelahiran Dan Kematian, Malaysia v. Pang Wee See & Anor; ; and the recent Federal Court decisions in CTEB & Anor v. Ketua Pengarah Pendaftaran Negara, Malaysia & Ors; ; and CCH & Anor v. Pendaftar Besar Bagi Kelahiran Dan Kematian, Malaysia; ; [2022] 1 CLJ 1; [2022] 1 AMR 1 that the law on citizenship are exclusively provided in the FC In delivering the decision of the Court in CCH (supra), Her Ladyship the Chief Justice Tengku Maimun set out a reminder on how such provisions are to be interpreted:
[46] Citizenship no doubt is governed by Part III of the FC , but it is also a concept so inextricably linked to the right to life and personal liberty contained in art 5(1). As such, any provisions on it must be construed as widely as possible.
[47] Having said that, we are completely mindful of the following warning by Abdoolcader J (as he then was) in Merdeka University Berhad v. Government pf Malaysia; ; [1981] CLJ (Rep) 191 , at p 360:
I said in Public Prosecutor v. Datuk Harun Haji Idris & Ors; [1976] 2 MLJ 116... that the Constitution is not to be construed in any narrow or pedantic sense (James v. Commonwealth of Australia [1936] AC 578)... but this does not mean that a Court is at liberty to stretch or pervert the language of the Constitution in the interests of any legal or constitutional theory, or even, I would add, for the purpose of suppl
