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2022 MarsdenLR 90
HIGH COURT MALAYA SEREMBAN
CHANDRA MORGAN VELUTHAM @ VELAUTHAM & ANOR – Appellant
Versus
KETUA PENGARAH PENDAFTARAN NEGARA & ORS – Respondent
[Originating Summons No: NA-24-3-11/2021]
Citizenship by operation of law under Article 14 of the Federal Constitution is automatic for children born to Malaysian citizens, irrespective of prior registration as non-citizen.
Headnote:(A) Federal Constitution – Article 14(1)(b) – Article 30 – Citizenship by operation of law – Plaintiffs sought a declaration for their son’s citizenship despite initial registration as ‘non-citizen’ – Court found failure to file for citizenship certificate does not bar claim for citizenship by operation of law – Jurisdiction of the court over citizenship affirmed. (Paras 3, 4, 12, 14)
(B) Constitutional Design and Separation of Powers – Court emphasized that while the executive has exclusive authority, parents may seek declaratory relief for citizenship as matter of law without application under Article 30 – Previous case law demonstrates that citizenship claims may arise independently of executive’s discretion. (Paras 10, 14, 16)
Facts of the case: Married couple filed suit for citizenship claim of their son born in Malaysia, initially considered a non-citizen – They contended citizenship is automatic under Article 14(1)(b) of the Federal Constitution due to their status as citizens.
Findings of Court: Court declined to strike out the case, affirming judicial oversight in determining citizenship when born under the necessary criteria, irrespective of the need for prior executive certification.
Issues: Main issues included whether the court had jurisdiction to decide on citizenship and applicability of Executive powers in citizenship matters.
Ratio Decidendi: Court found Article 14 operated automatically for citizenship by birth, stressing that executive discretion does not apply under the first mode of citizenship acquisition.
Result: Application to strike out dismissed.
JUDGMENT
Introduction
[1] These are grounds of judgment in respect of an application for striking out made by the defendants. The defendants, who are the director general of the National Registration Department, the Minister of Home Affairs and the government of Malaysia respectively, contend that the court has no jurisdiction to grant the reliefs prayed for by the plaintiffs.
[2] The plaintiffs are a married couple. They have commenced this originating summons on behalf of themselves as well as on behalf of their son, who at the time of writing was not yet two years old.
[3] Following his birth, a birth certificate was issued in respect of their son. This birth certificate records the citizenship of their son as "bukan warganegara" (a non-citizen). This was despite the fact-according to the affidavit affirmed in support of the originating summons-that the plaintiffs are both Malaysians, that they were legally married, and that their son was born in Malaysia. The plaintiffs have commenced this suit seeking a declaration that their son is a citizen by operation of law, as a consequence of the operation of art 14(1)(b) of the Federal Constitution .
[4] According to art 14(1)(b), read together with Part II of the Second Schedule to the Federal Constitution , a person who is born in Malaysia whose mother or father is either a citizen of, or a permanent resident in, Malaysia would automatically become a Malaysian citizen. Section 1 of Part II provides that such persons become citizens by operation of law.
The Striking Out Application
[5] The defendants applied for the originating summons to be struck out under O 18 r 19(1)(b) and (d) of the Rules of 2012. As explained above, the principal ground upon which the defendants have relied upon for the striking out was the proposition that the courts have no jurisdiction to pronounce upon the citizenship of the plaintiffs' son.
[6] According to learned senior federal counsel, art 30 of the Federal Constitution reserves the power to certify whether or not a person is a citizen exclusively within the purview of the Federal government.
Certificates of citizenship
30. (1) The Federal Government may, on the application of any person with respect to whose citizenship a doubt exists, whether of fact or of law, certify that that person is a citizen.
[7] Part III of the Federal Constitution deals with matters relating to citizenship. In his submissions, Mr Liew for the defendants referred the court to the s 2 of Part III of the Second Schedule to the , which ousts the jurisdiction of the court to review any decision of the Federal government made under Part III of the .
[8] Sections 1 and 2 provide as follows:
PART III
[Article 31]
SUPPLEMENTARY PROVISIONS RELATING TO CITIZENSHIP
The Minister
1. The functions of the Federal Government under Part III of this Constitution shall be exercised by such Minister of that Government as the Yang di-Pertuan Agong may from time to time direct, and references in this Schedule to the Minister shall be construed accordingly.
2. A decision of the Federal Government under Part III of this Constitution shall not be subject to appeal or review in any court.
[9] Mr Liew contended that, where any doubt exists as to the citizenship of a person, an application must be made pursuant to art 30(1) of the Constitution. Once a decision has been made by the minister responsible, then that decision is final, and may not be challenged in court whether by way of appeal or review.
[10] He explained the position of the government in no uncertain terms in his submissions:
9.
Article 30 , read together with s 2 of Part III Second Schedule of the FC established beyond peradventure the proposition that in matter of citizenship under Part III of the the jurisdiction to adjudge such matter is reposed singularly within the exclusive domain of the Federal Government and such power is unshared by the court.10. As an institution which prides itself of the
