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2024 MarsdenLR 3392
HIGH COURT MALAYA KUALA LUMPUR
TCK & ORS – Appellant
Versus
KETUA PENGARAH PENDAFTARAN NEGARA MALAYSIA & ORS – Respondent
[Judicial Review No: WA-24-14-03/2023]
Citizenship by operation of law is a fundamental right under the Federal Constitution, requiring both jus soli and jus sanguinis criteria to be satisfied, which the applicants failed to prove.
Headnote:(A) Federal Constitution - Article 14(1)(b) - Second Schedule, Part II - Citizenship by operation of law - The application for citizenship by the 2nd and 3rd plaintiffs was dismissed as they failed to meet the qualifications outlined in s 1(a) and s 1(e) of Part II of the Second Schedule. The court emphasized that citizenship provisions must be construed broadly, but limitations must be interpreted narrowly. (Paras 10, 14, 19, 36)
(B) Citizenship - Jus soli and jus sanguinis - The court held that for citizenship by operation of law, both the jus soli and jus sanguinis principles must be satisfied, meaning the individual must be born in Malaysia and have at least one parent who is a citizen or resident at the time of birth. (Paras 16, 18, 37)
Facts of the case:
The 2nd and 3rd plaintiffs, illegitimate children of a Malaysian citizen father and a Thai citizen mother, sought citizenship by operation of law after multiple failed applications. (Paras 4-8)
Findings of Court:
The court found that the plaintiffs did not fulfill the necessary qualifications for citizenship, particularly the requirements of jus sanguinis, as their mother was not a Malaysian citizen. (Paras 36-38)
Issues: The core issue was whether the plaintiffs qualified for citizenship under the Federal Constitution given their parents' citizenship status. (Paras 14, 19)
Ratio Decidendi: The court ruled that citizenship provisions are to be interpreted in light of both jus soli and jus sanguinis, and the plaintiffs did not meet the criteria as they were not stateless at birth. (Paras 36-38)
Result: Application dismissed with no order as to costs.
JUDGMENT
Introduction
[1] This is an originating summons wherein the applicants sought declarations of citizenship by operation of law for the 2nd applicant and 3rd applicant pursuant to art 14(1)(b) read together with ss 1(a) and (e) of Part II of the Second Schedule of the Federal Constitution . The names of the plaintiffs are redacted to maintain anonymity.
[2] On 22 January 2024, I dismissed the application with no order as to costs. This judgment contains the reasons for my decision.
[3] For the sake of brevity, unless otherwise stated, all references in this judgment to "Articles" and "Second Schedule" are to that of the Federal Constitution . Similarly, and unless otherwise stated, any references to Part II or Part III are to that of the Second Schedule of the .
Background Facts
[4] The 1st plaintiff is a citizen of Malaysia and the biological father of the 2nd plaintiff and the 3rd plaintiff. The biological mother, DS, is a citizen of Thailand. The 1st plaintiff and DS were not married. The 2nd plaintiff and 3rd plaintiff were therefore illegitimate children to the couple. The biological mother left the children and TCK in 2005 and TCK claims that she is uncontactable.
[5] The 2nd plaintiff was born on 2 February 1999 in Malaysia. His birth was registered on 15 February 1999 as evidenced in his birth certificate. The nationality of the 2nd plaintiff was stated as "not a citizen" with an endorsement "application s 13".
[6] The 3rd plaintiff was born on 12 February 2003 in Malaysia. His birth was registered on 17 February 2003 as evidenced in his birth certificate. The nationality of the 3rd plaintiff was stated as "not a citizen" with an endorsement "application section 13".
[7] Three applications were made by the 2nd plaintiff and 3rd plaintiff respectively under art 15A for citizenship by registration in 2011, 2013 and 2017 but was rejected by the Government of Malaysia. In 2022, the 2nd plaintiff application under art 19 ie citizenship by naturalisation was rejected for not meeting the required conditions while a fourth application under art 15A by the 2nd plaintiff is still pending.
[8] The 2nd plaintiff and the 3rd plaintiff are currently stateless. One wonders what is the criteria fixed by the Government of Malaysia for citizenship by registration when one does not know the reason for the rejection of the application when one has lived for more than 20 years in Malaysia and made up to at least 4 applications for citizenship by registration. The plaintiffs are 25 years old and 22 years old respectively. More so when the biological father of the 2nd plaintiff and the 3rd plaintiff is a citizen of Malaysia.
[9] The plaintiffs as a last resort, in my mind, by this application applied to obtain citizenship by operation of law in view of certain developments vide case-law in this area. But,whatever is the reason, the application was made under alternatively under two provisions: (i) Article 14(1)(b) read s 1(a) of Part II of the Second Schedule; and (ii) Article 14(1)(b) read s 1(e) of Part II of the Second Schedule.
Basic Principles On The Law Of Citizenship
[10] Citizenship by operation of law has been declared by the Federal Court as a fundamental right and all related bodies are bound by to comply with its dictates leaving no room for discretion. The provisions on citizenship, both substantively and procedurally, including interpretation of the citizenship provisions are exclusively housed in the Federal Constitution and nowhere else. Being a fundamental right, it has been held that citizenship provisions must be construed as broadly as possible without changing or warping the 'base' meaning while provisions which limit those rights must be construed as narrowly as possible. These principles can be found in the following two recent cases; (a) CTEB & Anor v. Ketua Pengarah Pendaftaran Negara, Malaysia & Ors, ; and (b) CCH & Anor v. Pendaftar Besar Bagi Kelahiran Dan Kematian, Malaysia; [2022] 1 CLJ 1
