The court established that a child born in Malaysia is entitled to citizenship by operation of law if at least one parent is a citizen, regardless of the child's legitimacy.

JUDGMENT

Abdul Wahab Mohamed J:

Introduction

[1] This is an application by the Plaintiffs vide Originating Summons in No. AA-34-3-12/2019 dated 20 December 2019 seeking for, inter alia, the following reliefs:

a. Bahawa Ketua Pendaftar Kelahiran dan Kematian Malaysia mendaftarkan semula taraf kewarganegaraan Ong Xin Tong sebagai warganegara Malaysia;

b. Bahawa Ketua Pendaftar Kelahiran dan Kematian Malaysia mendaftarkan semula kelahiran Ong Xin Tong sebagai orang yang sah taraf dan menamakan Ong Chin Hock (No. K/P: 830205-08-5179) sebagai bapa bilogikal (biological father) dan Luo Zhijuan (Pasport China: E49846399) sebagai ibu bilogikal (biological mother).

[2] The Plaintiff essentially seeks to be declared a citizen of Malaysia under art 14(1)(b) of the Federal Constitution . The Respondents, the Registrar of the National Registry Department and the Government of Malaysia, objects to the Plaintiff's application. In doing so, parties filed the following cause papers:-

a. Saman Pemula dated 20 Disember 2019

b. Afidavit Sokongan Plaintif affimed on 23 Oktober 2019

c. Afidavit Jawapan Responden affirmed on 24 Februari 2020

d. Afidavit Balasan Kepada Afidavit Jawapan Responden affirmed on 24 Jun 2020

[3] This application was first heard online over Zoom on 27 August 2021, and thereafter physically in person upon the request of parties on 10 September 2021. Both parties filed extensive submissions, reply submissions, additional submissions and skeletal speaking notes, of which I thank parties for their able submissions. I have read and considered both oral and written submissions of parties with a fine toothcomb and the following are my findings of this matter.

Background Facts

[4] The Plaintiff is a female child born on 24 June 2016 in KPJ Ipoh Specialist Hospital, Perak to a Malaysian father, Mr. Ong Chin Hock, and a mother of People's Republic of China national named Mdm. Luo Zhijuan.

[5] The Plaintiff's parents were not legally married to each other at the time of the Plaintiff's birth. The Birth Certificate of the Plaintiff states the Plaintiff as a non-citizen or 'Bukan Warganegara'.

[6] The Plaintiff does not possess a Passport and has never left Malaysia since the time she was born. There is no evidence before this Court that the Plaintiff holds a Passport or Citizenship of the People's Republic of China or any other Country. 3 months after the Plaintiff's birth, the parents legally registered their marriage at Ibu Pejabat JPNM Putrajaya on 5 September 2016.

[7] The High Court in Ipoh had on 4 September 2019 declared that the Plaintiff is the legitimate child of the parents, Ong Chin Hock and Luo Zhijuan. The Chemist Department had through an official DNA report dated 18 November 2019 confirmed that Ong Chin Hock and Luo Zhijuan are the biological father and mother of the Plaintiff.

[8] Prior to this application, the application for legitimacy and the DNA test, the Plaintiff's father had made a written application to the Home Minister under art 15A of the Federal Constitution on 9 August 2017. There has however been no response, rejection, approval or otherwise, from the esteemed Minister until today.

[9] The Plaintiff moves this Court under art 14(1)(b) of the Federal Constitution , read together with Part II, Section 1(a) and (e) of the Second Schedule, that she be declared a Malaysian citizen by operation of law on the following grounds:-

(i) That she is born in Malaysia after Malaysia Day; and

(ii) That her father is a Malaysian.

[10] The Respondents, the National Registry Department and the Government of Malaysia, objects to the Plaintiff's application on the ground that as the Plaintiff's parents were not married at the time of her birth, she is thus illegitimate and therefore Part III, Section 17 of the Second Schedule of the Constitution will carry effect in which the Plaintiff can only follow her mother's nationality which is that of the People's Republic of China. The Respondents also rejects the assertion that the Plaintiff is '