Alan Knowles v Ketua Pengarah Jabatan Pendaftaran Negara (WA-24-19-03/2023)

ALAN KNOWLES (KERAJAAN BERSATU BRITAIN RAYA DAN IRELAND UTARA

ALEXANDRA FRANCES MARY KNOWLES (KERAJAAN BERSATU BRITAIN RAYA DAN IRELAND UTARA NO. PASPORT: 538725255) (MEMOHON SEBAGAI WAKIL LITIGASI BAGI LUCIE SUVARA KNOWLES, SEORANG KANAK-KANAK) … PLAINTIF-PLAINTIF

1.

2.

KERAJAAN MALAYSIA … DEFENDAN-DEFENDAN GROUNDS OF JUDGMENT Introduction [1] The Applicants are British citizens. They are the adoptive parents and litigation representative of a child named Lucie Suwara Knowles, whose birth certificate categorizes her as a non-citizen. The Plaintiffs have filed this Originating Summons seeking to have Lucie Suwara Knowles declared a Malaysian citizen. Salient facts [2] The material facts which are not in dispute are distilled from the Plaintiffs’ affidavit in support of their application and the affidavits filed by the Defendants. They are as follows:

In early December 2012, the Plaintiffs informed one Mariayee who ran a care centre known as Mother Maria Senior Care Centre in Seremban of their wish to adopt a child in need of a family;

(ii) On 27.12.2012, Mariayee notified them that a young girl had given birth to the Child and left her with Mariayee;

(iii) On 12.1.2013, the Plaintiffs took the child home from the centre. Mariayee told them that the Child’s biological mother was in the midst of registering the Child’s birth with the National Registration Department (“JPN”) in order to obtain her birth certificate;

(iv) Mariayee later informed the Plaintiffs that the identity of the Child’s mother was unknown and that the Child was abandoned and left on her doorstep;

As the Child did not have a birth certificate, the Plaintiffs then commenced the process to register her birth and to obtain a birth certificate;

(vi) An officer from the JPN advised the Plaintiffs to lodge a police report in order that action can be taken to locate the mother. They did so on 22.5.2013;

(vii) After the Child’s second birthday, the Plaintiffs commenced proceedings to legally adopt the Child. However, in order to proceed further, a birth certificate was required for the court proceedings;

(viii) On 21.8.2017, the Plaintiffs submitted their application for a birth certificate for the Child. As the registration of the Child was much delayed after her birth, the JPN then commenced an investigation where the Plaintiffs were interviewed on 20.11.2017;

(ix) From the investigation, it was ascertained that Child had been in the care of both the Plaintiffs from the time she was 2 weeks old. They had taken the Child from one person named Maria. The 1st Plaintiff had requested Maria to procure a child for him and the 2nd Plaintiff. However, Maria had no knowledge of the identity of the Child’s biological mother;

Thereafter, the Child’s birth was registered on 4.4.2018 and a birth certificate was issued. The birth certificate states her date of birth as 27.12.2012 and that she was born in Seremban, Negeri Sembilan. Information on her parents was recorded as “MAKLUMAT TIDAK DIPEROLEHI”, and her citizenship status was “BUKAN WARGANEGARA”;

(xi) On 28.6.2019, the Plaintiffs were issued an Adoption Order by the Kuala Lumpur Sessions Court. Pursuant thereto, a new birth certificate was issued wherein the Plaintiffs were stated as the parents of the Child. Of materiality to the Plaintiffs, and which prompted the present application, is that the Child was stated as “BUKAN WARGANEGARA.” [3] In view of the Child’s status in her birth certificate, the Plaintiffs have filed the present action seeking the following principal reliefs:

A declaration that LUCIE SUVARA KNOWLES (Birth Certificate Register No.: C0504/2019, Serial No.: 002441XA) (“Child”) is a citizen of Malaysia by operation of law pursuant to Article 14(1)(b) and Part II Section 1(a) of the Second Schedule of the Federal Constitution read with

(ii) A declaration that the Child is born of a mother who is a permanent resident in Malaysia pursuant to Part III Section 19B of the Second Schedule of the Federal Constitution;

(iii) A declaration that the Child is a citizen of Malaysia by operation of law by virtue of her birth within the Federation pursuant to Article 14(1)(b) and Part II Section 1(e) and Section 2(3) of the Second Schedule of the Federal Constitution;

(iv) A declaration that the Childʼs birth certificate (Register No.: C0504/2019 Serial No.: 002441XA) dated 6.8.2019 issued by the 1st Defendant which registered the Child as a non-citizen instead of a citizen of Malaysia is an unlawful violation of the Childʼs rights as a citizen of Malaysia;

An order that the Defendants reissue the Childʼs birth certificate (Register No.:C0504/2019 Serial No.: 002441XA) dated 6.8.2019 and register the Child as a citizen of Malaysia within 14 days from the date of the order to be given by the court; and

(vi) An order that the Defendants issue the Child with a MyKid/MyKad within 14 days from the date of the order to be given by the court. [4] I shall now summarize the respective parties’ contention and their position taken in these proceedings. Plaintiffs’ Contention [5] The Plaintiffs contend that the Child was an abandoned new born, and is therefore presumed to be born of a mother permanently resident in Malaysia. The factual matrix of her case renders her a Malaysian citizen by operation of law pursuant to Article 14(1)(b) and Part II Section 1(a) of the Second Schedule read together with Section 19B of Part III of the Second Schedule of the Federal Constitution. [6] The Plaintiffs further contend that the Child, having been born in Malaysia and having remained stateless for a year after her birth is a Malaysian citizen by operation of law under Article 14(1)(b) and

The Defendants contend that firstly, the facts do not support a case of an abandoned new born, to be considered a child found exposed within the meaning of section 19B of Part III of the Second Schedule, hence the presumption that she was born to a mother permanently resident in Malaysia cannot be invoked.

Secondly, Article 14(1)(b) and Part II Section 1(e) does not aid the Child as she had only fulfilled the requirement of jus soli but not jus sanguinis, i.e citizenship by blood or lineage as the identity of her biological mother is unknown. Both are requirements to be satisfied in determining citizenship. Analysis and findings of this Court Whether the Child is entitled to citizenship pursuant to Article 14(1)(b) read together with section 1 (a), Part II of Second Schedule of the Federal Constitution

The starting point for discussion is Article 14(b) of the Federal Constitution which states: Citizenship by operation of law

(1) Subject to the provisions of this Part, the following persons are citizens by operation of law, that is to say:

every person born before Malaysia Day who is a citizen of the Federation by virtue of the provisions contained in

every person born on or after Malaysia Day, and having any of the qualifications specified in Part II of the Second Schedule. [10] The qualification the Plaintiffs rely on is section 1(a) of Part II of the Second Schedule which states,

Subject to the provisions of Part III of this Constitution, the following persons born on or after Malaysia Day are citizens by operation of law, that is to say:

every person born within the Federation of whose parents one at least is at the time of birth either a citizen or permanently resident in the Federation. [11] The above provisions stipulate that for a person to be a Malaysian citizen by operation of law pursuant to Article 14(1)(b) read together with section 1 (a), Part II of Second Schedule of the Federal Constitution, the requisite qualifications to be fulfilled are:

firstly, that the person was born on or after Malaysia Day;

(ii) secondly, the person was born within the Federation; and

(iii) thirdly, at the time of the person’s birth, one of the parents is a Malaysian citizen or permanently resident in the Federation. [12] These provisions encapsulate the twin concept of jus soli and jus sanguinis which was explained by the Court of Appeal in Pendaftar Besar Kelahiran dan Kematian, Malaysia v Pang Wee See & Anor (applying on their behalf and as litigation representatives for Pang Cheng Chuen, a child) [2017] 3 MLJ 308 [29] In determining citizenship of a person, two concepts are commonly applied, namely the concept of jus soli and the concept of jus sanguinis. Jus soli which means ‘right of the soil’, and commonly referred to as birth right citizenship, is the right of anyone born in the territory of a state to nationality or citizenship. The determining factor being the place or territory where a person was born. In the case of jus sanguinis, which in Latin means ‘right of blood’, is a principle of nationality law by which citizenship is not determined by place of birth but by having one or both parents who are citizens of the state. Viewed from the context of these two concepts, we are of the considered opinion that art 14(1)(b) read with s 1(a), Part II, Second Schedule of the Federal Constitution is a provision which is anchored on the elements of both the concepts of jus sanguinis and of jus soli, whereby citizenship of a person is traceable to the place of birth namely, Malaysia, as well as Malaysian citizenship of one of the person’s parents (the right of blood) at the time of the person’s birth, in order to be a Malaysian citizen by operation of law, under art 14(1)(b) read with s 1(a), Part II, Second Schedule of the Federal Constitution. [13] With regard to the requirement of jus soli, it is fulfilled as there is no dispute that the Child was born in Seremban, Negeri Sembilan. However, the fulfillment of jus sanguinis on the facts, present some difficulty. [14] The identity of the biological parents, particularly the mother is unknown. The Plaintiffs therefore seek to invoke the presumption of section 19B of Part III of the Second Schedule of the Federal Constitution. The provision reads,

For the purposes of Part I or II of this Schedule any new born child found exposed in any place shall be presumed, until the contrary is shown, to have been born there of a mother permanently resident there; and if he is treated by virtue of this section as so born, the date of the finding shall be taken to be the date of the birth. [15] Premised on the provisions of section 19B, the Plaintiffs contend that the Child was a new born child found exposed in Seremban, Negeri Sembilan hence the presumption that she was born of a mother who was permanently resident there. That being the case, the requirement as to jus sanguinis in section 1(a) of Part II of the Second Schedule is satisfied. [16] The Plaintiffs rely on the case of CCH & Anor (on behalf of themselves and as litigation representatives of one CYM, a child) v Pendaftar Besar bagi Kelahiran dan Kematian, Malaysia [2022] 1 MLJ 71 for the meaning to be given to the phrase “any new born child found exposed”. The Federal Court held, [53] The operative words in s 19B are ‘any new born child found exposed in any place’. The purpose of this section, when read in context, must be to cover new born children who are left and discovered in a place without any trace of their biological parents. We take judicial notice of the harsh realities of life: this includes new born children left abandoned near dumpsites, baby hatches, public or school toilets, places of worship and so on. A literal meaning of ‘exposed’ suggests a new born child who was ‘discovered’ exposed at any of these locations. [54] As such, the broadest possible interpretation of the word ‘found exposed’ is to accord it a meaning to include a child abandoned at the place of birth by the birth mother whose identity is unknown. The operative word ‘exposed’ in s 19B must therefore encompass the plight of abandoned new born children, otherwise the overarching intent of preventing statelessness would be defeated or rendered illusory. [17] The Federal Court then added that once the fact that a new born child is found exposed has been established, the requirement of jus sanguinis is satisfied. It held: [59] This leads us now to the final portions of s 19B. Once it is shown or averred that a new born child is ‘found exposed’ (or abandoned), two things are presumed, that is:

(a)that the child is born to a mother who is permanently resident at the place where the finding was made (the jus sanguinis presumption); and

(b)the date of the finding is taken as the date of the birth. [60] Once s 19B is invoked, any party challenging any of these presumptions must either show that: (a) the child was not born of a mother permanently resident at the place where the new born child was found; or (b) the date of the finding is not the date of the birth. It is really only a contest on the earlier which determines citizenship because of the wording of s 1(a) which requires that a child born within the Federation to be born of at least either one parent who is either a citizen or, more important to this case, of a parent permanently resident in the Federation. [18] As the Plaintiffs seek to invoke the presumption by relying on the fact that the Child was a new born found exposed, the burden lies on them to establish the fact by credible evidence before this court. [19] It is a trite principle that he who asserts must prove. In support of this principle, the Defendants refer to the case of Lim Jen Hsian & Anor v Ketua Pengarah Jabatan Pendaftaran Negara & Ors. [2018] 6 MLJ 548 where the Court of Appeal held, [33] It is a well established principle of law that he who asserts must prove. This is particularly so in respect of facts which are within the appellants’ knowledge. The burden of proof is on the appellants to establish on the balance of probabilities that the second appellant was not born a citizen of any country. Such rule of evidence is enunciated in s 103 of the Evidence Act 1950 which provides: The burden of proof as to any particular fact lies on that person who wishes the court to believe in its existence, unless it is provided by any law that proof of that fact shall lie on any particular person. [34] In the case of Ong Boon Hua @ Chin Peng & Anor v Menteri Hal Ehwal Dalam Negeri, Malaysia [2008] 3 MLJ 625; [2008] 5 CLJ 42, it was held that the burden is on the applicant to prove his citizenship status by the relevant documents, the absence of which would be fatal to prove his claim. [20] Guided by the principles enunciated and bearing in mind the relevant provisions of the Federal Constitution upon which this case is to be determined, it leaves me now to consider if the presumption in s.19B of Part III is successfully invoked. Section 19B of Part III of the Second Schedule-whether the Child was a child found exposed or abandoned [21] In evaluating the evidence as presented in the affidavits of both parties, I find several aspects that weigh against the Plaintiffs. [22] The Plaintiffs were late in registering the birth of the Child. Their conduct was contrary to the requirement in section 9 of the Births Deaths and Registration Act 1957. The section provides,

Information concerning finding of new-born child to be given to Registrar within fourteen days Where any living new-born child is found exposed, it shall be the duty of the person finding the child, and of any person in whose charge the child may be placed, to give to the best of his knowledge and belief to the Registrar, before the expiration of fourteen days from the date on which the child was found, such information of the particulars required to be registered concerning the birth of the child as the informant possesses, and in the presence of the Registrar to sign the register: Provided that the giving of information and the signing of the register by any one of the said persons shall act as a discharge of any duty under this section of any other of them. [23] In view of the delay, when the Plaintiffs applied to register the birth of the Child, the 1st Defendant conducted an interview with the Plaintiffs on 20.11.2017. The contents of the interview are in a document titled Borang Kenyataan Temuduga Permohonan Daftar Lewat Kelahiran Seksyen 12 Akta 299 and exhibited as “ZM-2” and “ZM-3” to the Affidavit In Reply affirmed on behalf of the Defendants. [24] At the interview, both Plaintiffs informed that the Child was received from a person named Maria. The 1st Plaintiff further added that Maria had tried to convince the mother to register the Child’s birth. [25] The same evidence was repeated in the 1st Plaintiff’s Affidavit In Support affirmed on 17.3.2023 and filed in these proceedings. He stated that when the Plaintiffs went to the Mother Maria Senior Care Centre on 12.1.2013 to bring the Child home, one Mariayee who ran the centre informed that the Childʼs biological mother was a young woman who had left the Child with the center to find a family for her. The 1st Plaintiff was also told by Mariayee that the biological mother was in the midst of registering the Childʼs birth with the JPN to obtain the Childʼs birth certificate. [26] The evidence thus far would suggest that firstly, the Child was not a new born child found exposed or abandoned and secondly, Mariayee was aware of the identity of the biological mother. [27] Mariayee’s evidence then becomes critical. The said Mariayee affirmed an affidavit on 26.3.2019 for the purpose of the adoption proceedings by the Plaintiffs, which was adduced as evidence in these proceedings. Her affidavit stated that she did not know the identity of the Child’s biological mother as the Child was abandoned at her door step. However, in the subsequent paragraph of the Affidavit, she stated that she informed the Plaintiffs that the biological mother was in the process of registering the Child’s birth (See; paragraph 5.2 and 5.3 of the Mariayee’s affidavit). [28] At this juncture, having considered the sworn evidence of Mariayee, I find her statements to be conflicting and irreconcilable. On the one hand, she disavowed any knowledge of the identity of the Child’s biological mother. On the other hand, the next paragraph of her Affidavit seemed to suggest otherwise when she stated that the biological mother was in the process of applying for a birth certificate. It does not stand up to reason. [29] In view of the apparent conflict in Mariayee’s affidavit, an officer of the 1st Defendant was tasked to record a statement from Mariayee on 23.5.2023.(See: “ZM-6”). [30] In her statement, Mariayee recalled that in 2012, a baby girl was brought to her house. Beyond this fact, she could not remember the identity of the individual who brought the baby girl. Neither was she able to recall any information regarding the identity and background of the biological parents of the baby. She was also unable to identify the Plaintiffs as the adoptive parents of the baby when showed the passport photo of the 1st Plaintiff. [31] Mariayee was only able to give general testimony regarding babies which had been put in her care and the adoption process which she facilitated. The baby would be usually be accompanied by an adult. She had never received any unaccompanied baby. Further, she would refuse to accept babies without birth certificates. The birth certificate, a copy of the identity card of the biological parents together with their sworn statement would then be handed over to the adoptive parents. [32] On 6.7.2023, a further statement was recorded from Mariayee. (See: “ZM-7”). This time, she denied that she had made any sworn statement or affidavit to the effect that she had handed over a baby girl to a Britain couple. She was shown her affidavit filed in the adoption proceedings. She admitted the signature therein to be hers, but she disclaimed knowledge of the contents. She even proffered a reason to have signed the affidavit; it was to help the parties in the adoption proceedings. However, what is more startling is her statement that no baby was ever left in front of her house as it was not possible to do so. The center she worked in was not easily accessible in view of the tight security. [33] Mariayee’s statements made on two occasions to the officer of the 1st Defendant in 2023 is consistent with that of the Plaintiffs during the interview on 20.11.2017. In that interview, no mention was made of the fact that the Child was left on the door step of Mariayee’s centre. Instead, the Child was said to have been handed over by Mariayee to the Plaintiffs. [34] The earliest mention of the Child being left on the doorstep was in the affidavit affirmed by the Plaintiffs on 21.12.2018 filed for the purpose of the adoption proceedings, and Mariayee’s affidavit on 26.3.2019. In any event, Mariayee appeared to have recanted later in the interview with the 1st Defendant’s officer in 2023. [35] It bears repeating that the onus of proving a case of abandonment or a new born child found exposed lies with the Plaintiffs. The conflicting and unsatisfactory evidence to my mind, calls into question the plausibility of the Plaintiff’s case. [36] To reiterate, I find the evidence adduced by the Plaintiffs viewed against that of the Defendants’, fails to establish the crucial fact of a new born baby found exposed. As the evidential burden had not been discharged, the presumption under s. 19B cannot be invoked. [37] There is another troubling aspect of the Plaintiffs’ case that deserves mention. The 1st Plaintiff lodged a police report on 22.5.2013, some 5 months after the Child was with them. As the contents are significant, they are reproduced in full below: “PADA 12/01/2013 JAM LEBIH KURANG 1400HRS SAYA BERSAMA SUAMI TELAH MENERIMA 1 KANAK-KANAK PEREMPUAN BANGSA TIDAK PASTI DI ALAMAT JALAN BUKIT RASAH, NEGERI SEMBILAN DARI PIHAK KETIGA 1/P INDIA YANG DIKENALI MARIA TANPA DOKUMEN PENGENALAN DIRI DAN HANYA TERIMA SURAT REKOD KELAHIRAN DARI PIHAK KLINIK PAKAR WANITA DAN RUMAH BERSALIN REKHA SDN BHD. TUJUAN SAYA BUAT REPOT UNTUK RUJUKAN PIHAK BERKENAAN DAN DAPATKAN SIJIL KELAHIRAN. SEKIAN REPOT SAYA.” [38] In 2017, some 4 years later, the Plaintiffs sought the services of Messrs Mah Weng Kwai for the adoption process. They were advised to lodge another report to rectify the error in the first report. In the second report, the fact that the 1st Plaintiff received the medical records from Klinik Pakar Wanita Dan Rumah Bersalin Rekha Sdn Bhd (“Klinik Rekha”) was noticeably omitted. [39] On 23.5.2023, an officer of the 1st Defendant carried out an investigation at Klinik Rekha. The investigation revealed that a baby girl was born on 27.12.2012 whose biological mother was an Indonesian named Augustina. The birth records kept of the clinic showed the baby’s weight to be 2.9 kg and the length was recorded as 45 cm. The details correspond to the Child’s medical record furnished by the Plaintiffs to JPN when they applied for her birth certificate. The coincidence is telling. Whilst it is not conclusive that the Child is that of the baby girl born to Augustina, it is certainly not a piece of evidence to be dismissed. [40] To conclude on the fact of abandonment, and taking heed of the broad interpretation given by the Federal Court in CCH (supra) to “a newborn found exposed” which would include “a child abandoned at the place of birth by the birth mother whose identity is unknown”, I would hesitate to conclude that the Child was in fact found abandoned. Instead, there is strong evidence to suggest that the Child was intentionally handed over by her biological mother to Mariayee. [41] As the presumption in s. 19B does not avail the Plaintiffs, the requirement of jus sanguinis in section 1 (a) is not met. Consequently, the Child is not entitled to citizenship by operation of law pursuant to Article 14(1)(b) read together with section 1 (a), Part II of Second Schedule of the Federal Constitution. Whether the Child is entitled to citizenship pursuant to Article 14(1)(b) read together with section 1 (e), Part II of Second Schedule of the Federal Constitution [42] The Plaintiffs also assert that the Child has fulfilled the requirements of section 1(e) of Part II of the Second Schedule, which provides as follows:

Subject to the provisions of Part III of this Constitution, the following persons born on or after Malaysia Day are citizens by operation of law, that is to say:

…….

…….

…….

…….

every person born within the Federation who is not born a citizen of any country otherwise than by virtue of this paragraph. [43] It is the Plaintiffs’ case that the above provision is to be read together with section 2(3) of the Second Schedule which provides as follows:

(1) ….

….

For the purposes of paragraph (e) of section 1 a person is to be treated as having at birth any citizenship which he acquires within one year afterwards by virtue of any provisions corresponding to paragraph (c) of that section or otherwise. [44] The Plaintiffs contend that the Child did not acquire any citizenship of any country within one year from the date of her birth on 27.12.2012. This fact was not contradicted by any evidence from the Defendants. Once that fact is established, there is no requirement to identify the Child’s biological parents in Section 1(e) of the Second Schedule. [45] I do not agree with the contention. Reverting to the case of Pang Wee See (supra), it is settled principle that the requisite qualifications for citizenship by operation of law under Article 14(1)(b) read with section 1 of Part II of the Second Schedule are based on the concepts of jus soli and jus sanguinis. [46] This principle applies equally to section 1(e) as decided by Than Siew Beng & Anor v. Ketua Pengarah Jabatan Pendaftaran Negara & Ors [2017] 5 MLJ 662 where the Court of Appeal held, [23] Article 14(1)(b) of the Federal Constitution encapsulates the requirement of citizenship by jus soli ie place of birth; while para 1(e) of Part II of the Second Schedule of the Federal Constitution (‘not born a citizen of any country’) encapsulates the requirement of citizenship by jus sanguinis ie by blood or lineage. [24] Thus, it would appear that the second appellant would need to satisfy both the requirements of jus soli and jus sanguinis in order to fulfil the requirements of art 14(1)(b) and para 1(e) of Part II, Second Schedule of the Federal Constitution (refer to Chin Kooi Nah (suing on behalf of himself and as litigation representative to Chin Jia Nee, child) v Pendaftar Besar Kelahiran dan Kematian, Malaysia [2016] 7 MLJ 717). [25] The doctrines of jus soli and jus sanguinis were explained in the case of Singh v Commonwealth of Australia [2004] HCA 43, which was referred to in the case of Chin Kooi Nah (suing on behalf of himself and as litigation representative to Chin Jia Nee, child) v Pendaftar Besar Kelahiran dan Kematian, Malaysia [2016] 7 MLJ 717 at p 747 as follows: By the late nineteenth century, international law recognised two well established rules for acquiring nationality by birth: jus soli and jus sanguinis (The Australian Legal Dictionary (1997)) defines jus soli to mean: a right acquired by virtue of the soil or place of birth. Under this right, the nationality of a person is determined by the place of birth rather than parentage. Nationality is conferred by the state in which the birth takes place; and defines jus sanguinis to mean: a right of blood. A right acquired by virtue of lineage. Under this right, the nationality of a person is determined by the nationality of their parents, irrespective of the place of birth. (See also: Lim Jen Hsian & Anor v Ketua Pengarah Jabatan Pendaftaran Negara & Ors. [2018] 6 MLJ 548). [47] In order to be satisfied that the Child was not born a citizen of any country within the meaning of section 1(e) of Part II, it is necessary to determine her status at the time of her birth. [48] The Federal Court in the case of CTEB & Anor v Ketua Pengarah Pendaftaran Negara, Malaysia & Ors [2021] 4 MLJ 236 held: [82] Concluding my view and discussions, I am clear in my mind and reinforced in my view, that the qualification of acquiring citizenship by operation of law, must be met at birth. And if the qualifications are not met, this court is not at liberty to add or subtract any other or qualifications which the FC states otherwise.” [Emphasis added] [49] To bring the Child’s case within section 1(e) of Part II, the Plaintiffs are therefore required to establish the blood relationship of the Child to her biological parents at the time she was born. It therefore follows it is imperative to know who her biological parents are. [50] In Than Siew Beng (supra), the Court of Appeal held, [36] Since the identity of the child’s lawful and biological parents are unknown, it is not possible to determine the lineage of the second appellant that would enable the second appellant to be conferred citizenship by lineage ie jus sanguinis. [37] Thus in our view, the second appellant has not fulfilled the requirement to be a citizen by operation of law within the meaning of para 1(e) of Part II of the Second Schedule of the Federal Constitution (refer to Chin Kooi Nah (suing on behalf of himself and as litigation representative to Chin Jia Nee, child) v Pendaftar Besar Kelahiran dan Kematian, Malaysia [2016] 7 MLJ 717). [38] We cannot accept the contention of the appellants that the evidence that the second appellant was born in the Federation and had resided in the Federation all his life, as well as the absence of particulars on the second appellant’s birth certificate in respect of his lineage can be construed as sufficient proof that the second appellant ‘was not born a citizen of any country’. As was stated earlier, what is required is evidence of the second appellant’s lineage, which evidence is absent. [51] The Plaintiffs case rests on the fact that the identity of the Child’s parents are unknown. Their citizenship status cannot therefore, be ascertained. Clearly, the requirement of jus sanguinis is not satisfied. [52] To my mind, it is not sufficient to assert that the Child was not born a citizen of another country and to then contend, that this assertion was not refuted by any evidence from the Defendants. As this fact is asserted by the Plaintiffs, the burden lies on them to prove by evidence, which they have not. (See: Than Siew Beng (supra). [53] The Plaintiffs also refer to the judgment of CCH (supra) and the legislative history of the provisions in the Federal Constitution on citizenship to submit that Parliament had intended to guard against statelessness. [54] Whilst I agree with the Parliamentary intent, the fact of statelessness at birth must be proved if section 1 (e) is to be relied on. The Plaintiffs must establish that the Child was not born a citizen of any country following that of either of his parent. To do so, the identities of her biological parents must be known. This is not the case here. [55] Premised on the factual matrix of this case, the Plaintiffs have failed to prove on a balance of probabilities, the requirements of section 1(e) of Part II of the Second Schedule had been met. Conclusion [56] For the foregoing reasons, I find that the Plaintiffs have not succeeded in establishing the Child’s case for citizenship by operation of law under either Article 14 (1) (b) read with section 1

of Part II and section 19B of Part III of the Second Schedule of the Federal Constitution or Article 14 (1) (b) read with sections 1

and 2 (3) of Part II of the Second Schedule of the Federal Constitution. [57] Accordingly, the Originating Summons in enclosure 1 is dismissed. I make no order as to costs. Dated: 28th January 2026 -sgd-Alice Loke Yee Ching Judge High Court Kuala Lumpur Counsel for Plaintiffs: Ms. Algalya J. Munusamy Tetuan Mah Weng Kwai & Associates Counsels for Defendants: FC Zulkiefli bin Sulaiman