B Muniamal Usha a/p V Balakrishnan v Pengarah Jabatan Pendaftaran Negara Wilayah Persekutuan Kuala Lumpur (WA-24-69-07/2024)

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1 DALAM MAHKAMAH TINGGI MALAYA DI KUALA LUMPUR DALAM WILAYAH PERSEKUTUAN KUALA LUMPUR (BAHAGIAN KUASA-KUASA KHAS) SAMAN PEMULA NO.: WA-24-69-07/2024 Dalam perkara Calvin Joshua (No. Sijil Lahir: CA65912); Dan Dalam perkara Fasal 14 dan Bahagian II dan Bahagian

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Jadual Kedua Perlembagaan Persekutuan; Dan Dalam perkara Seksyen 25 Akta Mahkamah Kehakiman 1964; Dan Dalam perkara Bab VI Akta Relif Spesifik 1950; Dan Dalam perkara Aturan 7 dan Aturan 73 Kaedah-Kaedah Mahkamah 2012; Dan Dalam bidangkuasa sedia ada Mahkamah. S/N fBzqPm6vTEOn3xvre8phHw ANTARA 1. B MUNIAMAL USHA A/P V BALAKRISHNAN 2. CALVIN JOSHUA A/L JONNY SURESH (SEORANG KANAK-KANAK MENDAKWA MELALUI WAKIL LITIGASI, B MUNIAMAL USHA A/P V BALAKRISHNAN) ...PLAINTIF-PLAINTIF DAN 1. PENGARAH JABATAN PENDAFTARAN NEGARA WILAYAH PERSEKUTUAN KUALA LUMPUR 2. MENTERI DALAM NEGERI 3. KERAJAAN MALAYSIA …DEFENDAN-DEFENDAN GROUNDS OF JUDGMENT Introduction [1] The Plaintiffs file this Originating Summons seeking the following rights for the 2nd Plaintiff: (i) a declaration that Calvin Joshua a/l Jonny Suresh be declared a citizen by operation of law pursuant to Article 14(1)(b) read with section 1(a) and/or 1(e) of Part II of the Second Schedule of the Federal Constitution; and S/N fBzqPm6vTEOn3xvre8phHw (ii) an order that the Defendants issue him a MyKad within 14 days of the order to be made herein reflecting his status as a Malaysian citizen. Key background facts [2] The narration of facts upon which the Originating Summons is premised is from the Affidavits filed by both parties in these proceedings. They are in the main, undisputed and are as follows: (i) The 2nd Plaintiff was born on 25.9.2008 at Taj Hospital, Kuala Lumpur, Malaysia and has lived his whole life in Malaysia; (ii) In late September 2008, the 1st Plaintiff’s late husband (“Jonny Suresh”) was informed by a doctor at Taj Hospital, Dr Krishnan, that a baby (the 2nd Plaintiff) was born and abandoned at Taj Hospital. There was no information regarding the biological parents of the 2nd Plaintiff; (iii) Jonny Suresh brought the 2nd Plaintiff from Taj Hospital to his home. He informed his wife (the 1st Plaintiff) about the circumstances of the 2nd Plaintiff’s birth. He also told the 1st Plaintiff that he had settled the medical bill for the birth of the 2nd Plaintiff of around RM3,000.00 to RM4,000.00 to Taj Hospital; (iv) Jonny Suresh then decided that he and the 1st Plaintiff would jointly raise the 2nd Plaintiff as their own child; S/N fBzqPm6vTEOn3xvre8phHw (v) On 13.10.2008, Jonny Suresh and the 1st Plaintiff went to the National Registration Department (“NRD”) to register the birth of the 2nd Plaintiff. They were advised by Dr Krishnan to name themselves as the parents of the 2nd Plaintiff. They did so as they did not have any information regarding the 2nd Plaintiff’s biological parents; (vi) The NRD the issued the 2nd Plaintiff with a birth certificate (“Original Birth Certificate”) which stated that he is a Malaysian citizen. He was also issued with a Child Identification Card (“MyKid”); (vii) On 13.1.2021, Jonny Suresh passed away after a heart attack; (viii) On 22.2.2022, the Plaintiff went to NRD to apply a MyKad for the 2nd Plaintiff. The NRD officers noted the 2nd Plaintiff did not resemble his parents. They then called for an investigation, where the 1st Plaintiff’s statement was recorded. She admitted that the 2nd Plaintiff is not her biological child but was adopted. She further stated that her late husband took pity on the child’s mother as she could not afford to pay the medical fees, and he agreed to take care of the 2nd Plaintiff; (ix) Apart from taking the statement of the 1st Plaintiff, the NRD could not investigate further on the 2nd Plaintiff’s birth as Taj Hospital is no longer in existence; S/N fBzqPm6vTEOn3xvre8phHw (x) Subsequently, NRD officers seized the Original Birth Certificate and have yet to issue a MyKad to the 2nd Plaintiff. The application for MyKad is presently classified as Tangguh Kelulusan and Dalam Perhatian until the investigations are completed; and (xi) The Plaintiffs contend that this state of affairs has left the 2nd Plaintiff with no identity document rendering him stateless which led them to file the present application. Grounds in support of the Plaintiffs’ application [3] The Plaintiffs have advanced 2 principal grounds in support of the reliefs sought in their application. [4] Firstly, they contend that the seizure of the Original Birth Certificate by the Defendants leaving him with no documentation is tantamount to a revocation of his Malaysian citizenship. The actions of the Defendants in terminating the citizenship of the 2nd Plaintiff run contrary to A. 27(1) of the Federal Constitution. [5] Secondly, the factual matrix of the 2nd Plaintiff’s birth fulfils the requirements of citizenship by operation of law pursuant to Article 14(1)(b) read with section 1(a) and/or 1(e) of Part II of the Second Schedule of the Federal Constitution. [6] I am of the view that the first ground is subsumed under the second, which is the main issue to be determined in these proceedings. S/N fBzqPm6vTEOn3xvre8phHw Analysis and findings of this court Whether the 2nd Plaintiff 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 [7] The starting point for discussion is Article 14(b) of the Federal Constitution which states: Citizenship by operation of law 14. (1) Subject to the provisions of this Part, the following persons are citizens by operation of law, that is to say: (a) every person born before Malaysia Day who is a citizen of the Federation by virtue of the provisions contained in Part I of the Second Schedule; and (b) every person born on or after Malaysia Day, and having any of the qualifications specified in Part II of the Second Schedule. [8] The qualification the Plaintiffs rely on is section 1(a) of Part II of the Second Schedule which states: Part II [Article 14(1)(b)] CITIZENSHIP BY OPERATION OF LAW OR PERSONS BORN ON OR AFTER MALAYSIA DAY S/N fBzqPm6vTEOn3xvre8phHw 1. 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: (a) 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. [9] The above provision encapsulates 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 as follows: [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 S/N fBzqPm6vTEOn3xvre8phHw law, under art 14(1)(b) read with s 1(a), Part II, Second Schedule of the Federal Constitution. [10] With regard to the requirement of jus soli, it is fulfilled as there is no dispute that the Child was born in Taj Hospital Kuala Lumpur, hence within the Federation. However, the fulfillment of jus sanguinis on the facts, present some difficulty. [11] The Plaintiffs’ case is that the 2nd Plaintiff was abandoned at the Taj Hospital. There is no information on his biological parents; their identities are therefore unknown. In view of the circumstances of his birth, the Plaintiffs seek to invoke the presumption of section 19B of Part III of the Second Schedule of the Federal Constitution. The provision reads: PART III [ARTICLE 31] SUPPLEMENTARY PROVISIONS RELATING TO CITIZENSHIP Interpretation 19B. 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. [12] Premised on the provisions of section 19B, the Plaintiffs contend that the 2nd Plaintiff was a new born child found exposed in Kuala S/N fBzqPm6vTEOn3xvre8phHw Lumpur. That being the case, the presumption that he was born of a mother who was permanently resident there is then invoked. Consequently, the requirement as to jus sanguinis in section 1(a) of Part II of the Second Schedule is satisfied. [13] In support of their case, the Plaintiffs rely on the Federal Court 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. [14] 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: S/N fBzqPm6vTEOn3xvre8phHw [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. [61] Putting it another way, the place of the finding, if within the Federation would satisfy the jus soli requirement of section 1(a) of Part II. The presumption, once it applies, automatically serves to complete the jus sanguinis (parenthood) aspect of section 1(a) unless anyone claiming to the contrary can prove otherwise. [15] In opposition to the Plaintiffs’ case, the Defendants dispute the fact of abandonment. This is evident from their Affidavit in Reply (“AIR”). The evidence negating abandonment is stated in paragraph 20 of the AIR. [16] In summary, the evidence relied on is this. The 2nd Plaintiff was born in Taj Hospital, Kuala Lumpur. The investigation conducted S/N fBzqPm6vTEOn3xvre8phHw by JPN revealed that the 2nd Plaintiff was delivered by a consultant obstetrician, one Dato’ Dr Balakrishnan. When the 2nd Plaintiff was about 4 or 5 days old, the late husband of the 1st Plaintiff brought him home. When he applied to register the birth of the 2nd Plaintiff, he furnished the medical records of Taj Hospital. The records showed that the 2nd Plaintiff’s biological mother was seen on a regular basis at Taj Hospital prior to the delivery. [17] The Defendants then contend that the cumulative effect of the evidence obtained during their investigation refutes the fact of an abandoned baby. Instead, it strongly suggests that the biological mother had intentionally given her child to the husband of the 1st Plaintiff after she delivered him. [18] In my view, the facts of this case are not so dissimilar with that of CCH’s. The child there was born in Hospital Universiti Kebangsaan Malaysia. The fact of being born in a hospital and delivered by an identified doctor does not in itself, disprove the fact of abandonment. [19] Reverting to the case of CCH, the Federal Court gave an expansive meaning to the word ‘found exposed’ in s. 19B to include ‘a child abandoned at the place of birth by the birth mother whose identity is unknown.’ Here, the 2nd Plaintiff’s biological mother clearly forsook him by not bringing him home as any mother ordinarily would. By allowing her child to be taken from her, she had evidently relinquished her claim to the child. The care and responsibility for the 2nd Plaintiff was then taken over by the 1st Plaintiff and her late husband. That, in my opinion, falls within the meaning of abandonment as enunciated in CCH. S/N fBzqPm6vTEOn3xvre8phHw [20] Counsel for the Defendants submitted that the facts strongly suggest an adoption scheme was in place. In the absence of cogent evidence, I am of the view that this is but mere speculation. Once the presumption is successfully invoked, the burden shifts to the Defendants to rebut the presumption. All the Defendants had was an unsubstantiated claim of an adoption arrangement. [21] Once the fact of abandonment and consequently, a new born found exposed is established, the presumption under s. 19B is invoked. The 2nd Plaintiff is presumed born to a mother permanently resident within the Federation. It follows that the 2nd Plaintiff is taken to fulfil the requirements of section 1(a) of Part II read with section 19B of Part III as he, having been born at Taj Hospital Kuala Lumpur was born within the Federation and his mother is presumed to be permanently resident in the Federation. The requirement of jus soli and jus sanguinis is thus satisfied. [22] It therefore follows that the 2nd Plaintiff is entitled to citizenship by operation of law by virtue of section 1(a) of Part II read with section 19B of Part III. Whether the 2nd Plaintiff is a citizen by operation of law pursuant to Article 14(1)(b) read with section 1(e) of Part II of the Second Schedule of the Federal Constitution [23] Having decided on the right of the 2nd Plaintiff to be a citizen by operation of law pursuant to Article 14(1)(b) read with section 1(a) of Part II of the Second Schedule of the Federal Constitution, it is unnecessary to deal with the provisions of section 1(e). S/N fBzqPm6vTEOn3xvre8phHw Conclusion [24] Premised on the foregoing reasons, the declaration sought for in prayer (a) of the Originating Summons that the 2nd Plaintiff is a citizen by operation of law pursuant to Article 14(1)(b) read with section 1(a) of Part II of the Second Schedule of the Federal Constitution is allowed. [25] As for prayer (b), I am of the view that notwithstanding the grant of a declaration that the 2nd Plaintiff is a citizen by operation of law, it is necessary to allow prayer (b) in order to give meaningful effect to prayer (a). I would however grant some latitude to the Defendants by extending the period to 30 days from the date the application for MyKad is made by the 2nd Plaintiff. I make no order as to costs. Dated: 23rd day of February 2026 -sgd-Alice Loke Yee Ching Judge High Court Kuala Lumpur S/N fBzqPm6vTEOn3xvre8phHw Counsel for Plaintiffs: Puan Latheefa Koya Tetuan Daim & Gamany Counsel for Defendants: En. Mohd. Faisal bin Md. Noor Senior Federal Counsel Jabatan Peguam Negara S/N fBzqPm6vTEOn3xvre8phHw