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2024 MarsdenLR 2949
HIGH COURT MALAYA GEORGETOWN
LCS – Appellant
Versus
PENDAFTAR BESAR KELAHIRAN DAN KEMATIAN MALAYSIA & ANOTHER CASE – Respondent
[Judicial Review Applications Nos: PA-25-66-12-2022 & PA-25-37-06-2023]
Citizenship by operation of law requires satisfaction of both jus soli and jus sanguinis; failure to establish biological parentage results in ineligibility for citizenship.
Headnote:(A) Federal Constitution – Article 14(1)(b) – Births and Deaths Registration Act 1957 – Section 27(3) – Citizenship by operation of law – Applicants sought citizenship based on birth in Malaysia – Court held that both jus soli and jus sanguinis must be satisfied for citizenship – Applicants failed to establish lineage of biological parents, thus not entitled to citizenship. (Paras 38, 56, 68)
(B) Judicial Review – Scope – Court dismissed applicants' claims for citizenship as no error of law was found in the respondent's decision regarding birth certificates. (Paras 70, 71)
Facts of the case: The applicants, born in Malaysia, sought citizenship through judicial review after their birth certificates were amended to reflect non-citizen status due to lack of biological parentage evidence. (Paras 20, 30)
Findings of Court: The court found that the applicants did not meet the requirements for citizenship as they could not prove their biological parents' citizenship status. (Paras 68, 69)
Issues: Whether the applicants are entitled to citizenship by operation of law based on jus soli and jus sanguinis. (Paras 43, 56)
Ratio Decidendi: The court ruled that both concepts must be satisfied for citizenship, and the applicants failed to prove their lineage, thus their citizenship claims were dismissed. (Paras 68, 69)
Result: Applications dismissed.
JUDGMENT
Introduction
[1] Central to these present proceedings is the issue of the fundamental constitutional importance concerning the rights of the two applicants to be recognised as a citizen of Malaysia by operation of law as enshrined in the Federal Constitution.
[2] In light of the similar circumstances, issues and reliefs sought by the applicants against the decisions of the respondent, the National Registration Department (hereinafter referred to as "NRD"), the parties have agreed that these two matters be heard together and, in this regard, pursuant to an application by the applicants in Suit No: PA-25-37-06-2023 (hereinafter referred to as "Suit 37"), that matter was transferred and ordered to be heard together with Suit No: PA-25-66-12-2022 (hereinafter referred to as "Suit 66") herein as reflected in the Court Order dated 25 July 2023. As such, both Suits are being heard together.
[3] Whilst the applicant in Suit 66 and the 2nd applicant in Suit 37 are different, the 1st applicant in Suit 37 is currently the lawfully adopted mother of both other applicants. For the record, the 2nd applicant in Suit 37 is currently 17 years' old and the applicant in Suit 66 is 21 years' old.
[4] For the sake of convenience, the applicant in Suit 66 and the 2nd applicant in Suit 37 will be collectively referred to as the two applicants.
[5] In determining the merits of the respective parties' contentions in Suit Nos 66 and 37, it is appropriate that I set out the salient background facts followed by the parties' rival contentions and my analysis of the same.
[6] As will become apparent, the background facts and the relevant applicable articles in the Federal Constitution are not in dispute. However, the crux of these two applications relates to the interpretation of those articles whereby it is the cornerstone of the applicants' contention that it is sufficient to satisfy the concept of jus soli ("right of the soil") to be entitled to citizenship and that there is no requirement to satisfy the concept of jus sanguinis ("right of blood").
[7] I will now set out the salient background facts of both cases.
Salient Background Facts
Background Facts In Suit 66
[8] The applicant is currently 21 years' old and resides with his adoptive mother, TCG in Penang.
[9] It is undisputed that the applicant was born on 7 May 2002 in Georgetown, Penang and that the alleged late father, LEG had at that time taken steps to register the applicant's birth on 9 May 2002 at the respondent's office leading to the issuance of a birth certificate (Register No AZ30525) registered on 9 May 2002 (hereinafter referred to as the "original birth certificate").
[10] It is pertinent to note at this juncture that the material details contained in the original birth certificate issued on 9 May 2002 included the following details:
a. that LEG, a Malaysian citizen has been recorded as the applicant's father in the column "The Father's Information";
b. that TCG, a Malaysian citizen has been recorded as the applicant's mother in the column "The Mother's Information";
c. that the applicant was recorded as having been born in Penang on 7 May 2002 and given the name LCS.
[11] Sometime thereafter in 2018, it is not disputed that the applicant and TCG were called by the Investigation and Enforcement Division (BSK), NRD, Penang for an investigation following suspicion in the application by TCG for the registration of a National Registration Identity Card (hereinafter referred to as "NRIC").
[12] Pursuant to an investigation conducted, TCG had on 4 October 2018 provided a signed and/or attested her statement whereby in the same she informed the respondent that her late husband, LEG had passed away in 2007 and that the applicant was not their biological child.
[13] TCG had further informed BSK during the said investigation that throughout their marriage, they had no children. She also confessed that she did not have any knowledge of the registration of birth of the applicant as it
