1. ) Chong Kok Wai v 1. ) Ketua Pengarah Jabatan Pendaftaran Negara (BA-24-5-02/2025)

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DALAM MAHKAMAH TINGGI MALAYA DI SHAH ALAM DALAM NEGERI SELANGOR DARUL EHSAN SAMAN PEMULA NO: BA-24-5-02/2025 Dalam perkara Aturan-Aturan 7, 73 dan 76 Kaedah-Kaedah Mahkamah 2012 Dan Dalam perkara Seksyen 25 Akta Mahkamah Kehakiman 1964 Dan Dalam perkara Bab-Bab VI and VIII Akta Relif Spesifik 1950 Dan Dalam perkara Perkara 14, Bahagian II dan Bahagian

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Jadual Kedua Perlembagaan Persekutuan ANTARA S/N pvFebudHdUm/ZcGqgdYVFQ 1. CKW 2. WLC (Memohon untuk pihak mereka sendiri dan sebagai wakil litigasi CYH, seorang kanak-kanak) PLAINTIF-PLAINTIF DAN 1. KETUA PENGARAH JABATAN PENDAFTARAN NEGARA 2. MENTERI DALAM NEGERI 3. KERAJAAN MALAYSIA EFENDAN-DEFENDAN GROUNDS OF JUDGMENT 1. In this Originating Summons, the Plaintiffs seek declaratory and other relief affecting the citizenship of their adopted child ( ) who is a non-citizen as far as the Defendants are concerned. 2. CYH was born on 13-3-2018 at a local hospital in Kuala Lumpur to an Indonesian mother and unknown father. The Plaintiffs met the birth mother before the birth of CYH, agreed to adopt CYH and went through the adoption formalities after his birth. CYH was formally adopted on 25-7-2018. S/N pvFebudHdUm/ZcGqgdYVFQ 3. A prior application by the Plaintiffs to register the child as a citizen using the process under Article 15A of the Federal Constitution ( ) had been rejected by the Defendants. The Plaintiffs are now moving the Court under Article 14(1)(b) of the FC which provides for citizenship by operation of law. 4. Article 14(1)(b) of the FC provides that every person born on or after Malaysia Day and having the qualifications specified in Part II of the Second Schedule of the FC are citizens by operation of law. The provisions in Part II of the Second Schedule of the FC that the Plaintiffs rely on are as follows: Section 1(a) of Part II of the Second Schedule of the FC Section 1(a) every person born within the Federation of whose parents one at least is at the time of the birth either a citizen or permanently Section 1(e) of Part II of the Second Schedule of the FC Section 1(e) every person born within the Federation who is not born a citizen of any country otherwise than by virtue of this paragraph S/N pvFebudHdUm/ZcGqgdYVFQ Analysis and findings Section 1(a) and Adoption 5. The Plaintiffs contend that CYH qualifies for citizenship under section 1(a) because his adoptive parents are citizens of Malaysia. The short answer to this is that, as submitted by the Defendants, this Court is bound by the Federal Court decision in CTEB & Anor v. Ketua Pengarah Pendaftaran Negara, Malaysia & Ors [2021] 4 MLJ 236 CTEB . 6. Citing various cases, including 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 ) on section 1(a), the majority in CTEB held that: (a) the acquisition of citizenship by operation of law under Article 14 of the FC is based on the fulfilment of the qualifications set out in the FC that must be met at the time of birth; and (b) the FC cannot be construed by reference to other laws such as the Legitimacy Act or Adoption Act which might retrospectively qualify a person. 7. In Pang Wee See, the child in question was born in Malaysia, of unknown parentage and was adopted but failed to gain Malaysian citizenship by operation of law under section 1(a). S/N pvFebudHdUm/ZcGqgdYVFQ 8. Thus, th applies to adoptive Malaysian parents can be dealt with without going into the as argued by the Plaintiffs. The section requires at least one of case, neither of the Plaintiffs was a parent to CYH at the time of his birth, and his subsequent adoption by them as Malaysian parents cannot retrospectively satisfy the requirement. Section 1(e) and Registration of Birth 9. As for section 1(e), the Plaintiffs contend that CYH qualifies for citizenship because he was not born a citizen of another country within the meaning of that section. 10. The Defendants take the position that CYH is not stateless because he has Indonesian citizenship, being born to an Indonesian mother. They argued this based on: (a) Section 17 in Part III of the Second Schedule of the FC, that the citizenship of an illegitimate child follows that of the mother (CTEB); and (b) the Indonesian law opinion of Rendy Aloysius Kailimang ( ) who opined that Indonesian law confers automatic citizenship to a child born out of wedlock to an Indonesian mother and that citizenship remains until he or she is 18 years old or married, even if he is subsequently adopted (under the age of 5). S/N pvFebudHdUm/ZcGqgdYVFQ 11. The Plaintiffs procured the Expert Opinion and its conclusions are not disputed. However, the same Expert Opinion also opined that as CYH is a child of an Indonesian citizen born abroad, the registration of his birth can only be done by his mother who is Indonesian and within 60 days of the birth, failing which CYH will not be able to exercise his rights to secure an Indonesian birth certificate (or birth registration from a domestic birth certificate) which shall be the initial deed evidencing his citizenship. According to the expert: a domestic birth certificate will give the full rights and entitlement to be issued other documentation such as the National Identity Card, Family Card, Passport and other documentation in relation to the protection of his citizenship 12. The expert does not say citizenship is lost by non-registration, only that it disables him from exercising his citizenship rights. The bone of contention, therefore, is whether the practical impossibility of registering CYH as Indonesian means that he is not born a citizen of Indonesia, effectively stateless, and therefore qualifies for citizenship under section 1(e). S/N pvFebudHdUm/ZcGqgdYVFQ 13. The question presented is what interpretation the Court should found in section 1(e). Is it: (a) citizenship determined by reference solely to the nationality of the birth mother ( ); or (b) citizenship determined by reference to state recognition of such status and the vesting of rights ( ). 14. Guidelines for Interpretation This Court is guided by the principles on interpreting the FC as enunciated in Dato Menteri Othman Bin Baginda & Anor v Dato Ombi Syed Alwi Bin Syed Idrus [1981] 1 MLJ 29, at p 32, by Raja Azlan Shah Ag L.P. (as His Royal Highness then was): First, judicial precedent plays a lesser part than is normal in matters of ordinary statutory interpretation. Secondly, a constitution, being a living piece of legislation, its provisions must be construed broadly and not in a pedantic way of Home Affairs v Fisher [1979] 3 All ER 21). A constitution is sui generis, calling for its own principles of interpretation, suitable to its character, but without necessarily accepting the S/N pvFebudHdUm/ZcGqgdYVFQ 15. In CCH & Anor v Pendaftar Besar Bagi Kelahiran Dan Kematian, Malaysia [2021] MLJU 2321 , the Federal Court held as follows: [44] The principles of jus soli and jus sanguinis as well as the principles on how the FC was drafted to enable citizenship as broadly as possible while weeding out statelessness have been discussed in great length by the minority of this court in CTEB . We adopt the reasoning there as part of this judgment being the only other decision of the Federal Court apart from this one, to our knowledge, to have touched on this issue most recently. [46] Citizenship no doubt is governed by Part III of the FC, but it is also a concept so inextricably linked to the right to life and personal liberty contained in Article 5(1). As such, any provisions on it must be construed as widely as possible. [47] Having said that, we are completely mindful of the following warning by Abdoolcader J (as he then was) in Merdeka University Berhad v Government of Malaysia [1981] 2 MLJ 356, at page 360: Public Prosecutor v Datuk Harun bin Haji Idris & Ors [1976] 2 MLJ 116 construed in any narrow or pedantic sense (James v Commonwealth of Australia) [1936] AC 578 but this does not mean that a court is at liberty to stretch or pervert the language of the Constitution in the interests of any S/N pvFebudHdUm/ZcGqgdYVFQ legal or constitutional theory, or even, I would add, for the purpose of supplying omissions or of correcting supposed errors [48] The Courts have always had to do battle with these two conflicting principles. On the one hand, it is said that the Judiciary cannot purport to usurp the role of the Legislature. On the other hand, it is said that the Judiciary must be proactive to protect fundamental rights. No matter the argument, we are constantly reminded of these fears and/or duties by both sides taking their respective positions in constitutional cases. Where do we draw the line between these two extremes? [49] We believe that the answer to the question has been discussed an innumerable amount of times with the most recent being CTEB (supra). The starting point is the understanding that fundamental rights and provisions must be construed as broadly as possible. Next, provisions which limit those rights must be construed as narrowly as possible. Finally, judicial precedent must play a lesser part when construing constitutional provisions. One cannot afford to be pedantic or cling helplessly to tabulated legalism. [50] When construing a word or words in the FC protective of or guaranteeing a fundamental right, the Court should give their meaning. And when construing interrelated provisions, the Court should read them as a whole having regard to the purpose S/N pvFebudHdUm/ZcGqgdYVFQ and intent of those provisions and harmonise their collective meaning rather than put them at odds with another. 16. Purposive Interpretation In the interpretation of section 1(e), the Plaintiffs say that the relation back provision in section 2(3) of Part II of the Second Schedule of Section 2(3) is material. It provides as follows: person is to be treated as having at birth any citizenship which he acquires within one year afterwards by virtue of any provisions 17. Section 2(3) provides that citizenship acquired within a year of birth is deemed to be citizenship at birth. One method of acquiring citizenship is via any law corresponding to section 1(c) of Part II of the Second Schedule of the FC which says that for a child born outside Malaysia to a Malaysian father, whose birth is registered at a Malaysian consulate within a year of the birth or such extended period as the Federal Government may at its discretion extend, that child is treated as a Malaysian at birth. 18. The relation back provision relied upon by the Plaintiffs in section 2(3) does not operate to deny citizenship for failure of registration by a law corresponding to section 1(c) of Part II of the Second Schedule of the FC or otherwise. What it demonstrates in the present context is that born a an abstract legal S/N pvFebudHdUm/ZcGqgdYVFQ concept. This is because citizenship involves rules, rights and recognition by a state, all of which are intangible ideas governed by law and policy. 19. Defining citizenship without reference to citizenship rules, rights and recognition may be illusory and reductionist if one considers the opening words of the dissenting judgment in CTEB reads: Citizenship comprises a fundamental aspect of nationhood. There are numerous rights attached to the notion of citizenship, foremost of which include the right to vote, rights available to those guaranteed under arts 9 and 10, and an identity and diplomatic protection by the home-State in foreign territory. 20. In effect, a person is not a citizen in the true sense of the word until he or she is recognised as one by the state through its processes, as evidenced by documentation issued by the state as proof of their status. A birth certificate or other forms of citizenship registration are necessary proof of citizenship as demonstrated in Ong Boon Hua @ Chin Peng & Anor v Menteri Hal Ehwal Dalam Negeri, Malaysia [2008] 3 MLJ 625. 21. Neither jus soli nor jus sanguinis, whether independently or together, suffices to establish true citizenship. When, upon birth, some further action is required to attract citizenship rights, a child is not truly a citizen until that happens. If the birth mother dies or otherwise abandons the child at birth, the pathway to citizenship S/N pvFebudHdUm/ZcGqgdYVFQ may be forever closed for that child, rendering him stateless. This is typically the reality for abandoned or orphaned children. 22. As observed and accepted by the Federal Court in CCH, the legislative intent for the insertion of sections 1(e) and 2(3) [and section 19B in Part III of the Second Schedule of the FC] was to guard against statelessness. C section 1(e) according to the Narrow Meaning would, in many instances, fail to serve the legislative purpose. 23. Consistency and Stare Decisis However, the Court is reminded that under Article 14 of the FC, citizenship is granted automatically by operation of law, with potentially far-reaching demographic consequences. Therefore, judicial interpretation of the qualifications for automatic citizenship should be principled and consistent. 24. As noted in CTEB, referring to the observations of Abang Iskandar JCA in Pang Wee See: to citizenship purely on the basis of the place where he is born irrespective of the citizenship status of his parents. Thus, if immigrant non-citizen parents from one country give birth to their child in a country which adopts the principle of only jus soli, the child is automatically a citizen of that country by the fact of his birth there. Jus sanguinis on the other hand looks only to the citizenship status of the parent irrespective of S/N pvFebudHdUm/ZcGqgdYVFQ where the child was born. So long as the parent (sometimes the father only and other times either parent) is a citizen, the child parent. As observed by Abang Iskandar JCA in the above quoted judgment, our FC amalgamates both jus soli and jus [Emphasis added] 25. Malaysia has not adopted the principle of only jus soli and so a fundamental feature of the FC is that there is no birthright citizenship for children born in Malayisa to non-citizen mothers who are not married to a Malaysian father. Section 1(e) stands as an exception where the blood relation to a Malaysian is absent, but is still relevant to determine if he or she is stateless. 26. The occurrence of stateless births in Malaysia is, in nearly all cases, a foreseeable outcome of choices consciously made by the adults concerned. Permitting a non-citizen mother to abandon her child in Malaysia with the expectation of citizenship under the C essence, amount to endorsing birthright citizenship a shift with significant legal and policy implications. 27. A construction of Section 1(e) that adopts the Expanded Meaning and extends beyond the factual confines of CCH would undermine the essential framework of the Federal Constitution, which deliberately merges jus soli and jus sanguinis principles, S/N pvFebudHdUm/ZcGqgdYVFQ and would do so by disregarding an ascertainable parental lineage. As explained in Lim Jen Hsian & Anor v Ketua Pengarah Jabatan Pendaftaran Negara & Ors [2018] 6 MLJ 548 [36] Paragraph 1(e) of Part II, Second Schedule of the Federal Constitution confers citizenship to a person born by jus sanguinis, by reference to his blood or lineage. Thus when a child has not, at birth, acquired citizenship of any country, this would render him/her not born a citizen of any country 28. It may be argued that there is no practical difference in the outcome between a child rendered stateless due to an inability to register and one made stateless by circumstances such as the death of a non-citizen birth mother. However, the language of Section 1(e) does not permit such distinctions to be read into the provision, and there will inevitably be cases where non-registration is intentional. 29. Further, as it is now a clear requirement of the law that a child born to a non-citizen mother must be legitimate for the transmission of citizenship from a Malaysian father (CTEB, Lim Jen Hsian), then as submitted by the Defendants, it would indeed be absurd if the biological child of an unknown father is in a better position to gain citizenship through section 1(e) than the child of a Malaysian father. The outcome will not accord with precedents that bind this Court. S/N pvFebudHdUm/ZcGqgdYVFQ 30. Having thus given anxious consideration to this case, it gives this Court no pleasure in finding that it must adopt the Narrow in section 1(e) i.e. that the citizenship of the child in this context is determined solely by descent from his birth mother. The alternative interpretation is unduly strained to achieve a purpose that can be met by other means, namely through an application under Article 15A of the FC, as acknowledged by counsel for the Defendants. 31. Conclusion In conclusion, CYH does not qualify for citizenship under section 1(a) because neither of the Plaintiffs was a lawful parent to CYH at the time of his birth, and his subsequent adoption by them as Malaysian parents cannot retrospectively satisfy that requirement. 32. CYH also does not qualify for citizenship under section 1(e) because he is automatically a citizen of Indonesia according to Indonesian law. Although rendered effectively stateless since birth due to non-registration of his birth in Indonesia, he is nevertheless born a citizen of Indonesia for purposes of section 1(e) properly construed. S/N pvFebudHdUm/ZcGqgdYVFQ 33. Accordingly, dismissed with no order as to costs. Bertarikh : 6 Ogos 2025 SGD ELAINE YAP CHIN GAIK PESURUHJAYA KEHAKIMAN MAHKAMAH TINGGI MALAYA SHAH ALAM Peguam bagi pihak Plaintif-Plaintif: Agalya J Munusamy (bersama Alyssa Dalila) Tetuan MahWengKwai & Associates Peguam bagi pihak Defendan-Defendan: Syahriah Shapiee Peguam Persekutuan Kanan Jabatan Peguam Negara, Putrajaya S/N pvFebudHdUm/ZcGqgdYVFQ