1. ) CHONG SIEW THAI v Pendaftar Besar Kelahiran Dan Kematian Malaysia (JA-24NCvC-58-01/2022)

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1 DALAM MAHKAMAH TINGGI DI JOHOR BAHRU DALAM NEGERI JOHOR, MALAYSIA

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Jadual Kedua Perlembagaan Malaysia dibaca bersama Bahagian III Seksyen 19B Perlembagaan Malaysia Dan Dalam perkara mengenai Aturan 92 Kaedah 4 Kaedah-Kaedah Mahkamah 2012 17/05/2023 11:00:09 JA-24NCvC-58-01/2022 Kand. 44 INTRODUCTION [1] The Plaintiffs filed an application by way of Originating Summons (“OS”) dated 27.1.2022 (Enclosure 1) seeking the following reliefs: (a) a declaration that Chong Chee Yeong (“CCY”) is a citizen of Malaysia under Article 14(1)(b), Part II, section 1(e) and section 2(3) Second Schedule Federal Constitution (“FC”) read together with section 19B, Part III of FC; (b) a declaration that CCY is a citizen of Malaysia by operation of law vide an adoption order dated 11.3.2021 given by the Johor Bahru Session Court under OS No. JA-58-16-01/2020, read together with section 9 and section 25A Adoption Act 1952 and Article 14(1)(b) and section 1 paragraph (a), Part II, Second Schedule of FC read together with section 19B, Part III of FC; (c) an order directing the Defendant to re-register CCY as a citizen of Malaysia within 7 days from the date of the order; (d) an order directing the Defendant to issue a new birth certificate for CCY with the status of citizen of Malaysia under the column of citizenship within 7 days from the date of the order; and (e) an order directing the Defendant to issue a new mykid to CCY with the status of citizen of Malaysia within 7 days from the date of the order. [2] For the purpose of this application, Parties have filed the following cause papers: (a) Originating Summons dated 27.1.2022 (“Enclosure 1”); (b) Affidavit in Support affirmed by Chong Lien Huat on 30.12.2021 (“Enclosure 2”); (c) Affidavit in Reply affirmed by Ruslin Bin Jusoh on 28.4.2022 (“Enclosure 9”); (d) Affidavit in Reply affirmed by Chong Lien Huat on 26.5.2022 (“Enclosure 10”); (e) Affidavit in Reply affirmed by Ruslin Bin Jusoh on 21.6.2022 (“Enclosure 14”); and (f) Second Affidavit in Reply affirmed by Chong Lien Huat on 23.6.2022 (“Enclosure 17”). Background Facts [3] The background facts in this application are as gathered from the Affidavits and submissions filed by the parties and stated in chronological order. [4] The 1st Plaintiff (“P1”) and 2nd Plaintiff (“P2”) are husband and wife. Both of them are citizens of Malaysia. Their marriage did not produce any children. [5] CCY was handed to an aunty in Wisma Maria, Johor Bahru by unknown male doctor. Subsequently, the aunty contacted P1 and P2 to adopt CCY and they have paid RM5000 to the aunty. They were under impression that they have formerly adopted CCY. In their application to register the birth of CCY at the National Registration Department, Johor Bahru branch (“NRD”) on 22.8.2005, they have provided the information as they are parents of CCY. A birth certificate no. BN 24285 (“1st Birth Certificate”) was issued by NRD. In the 1st Birth Certificate, the particulars of CCY’s parents were registered with the information of P1 and P2 and CCY’s citizenship status was registered as citizen of Malaysia. [See: Enclosure 9 – para 5.1 & Exhibit “RJ-1”]. [6] On 28.7.2017, P1 and P2 applied for identity card for CCY at UTC, Johor Bahru. [See: Enclosure 9 – para 5.2]. However, the application for CCY’s identity card was deferred and the matter was then referred to the Investigation and Enforcement Division of NRD because CCY’s appearance did not resemble P1 and P2. In the statements recorded from P1 and P2 on 17.9.2017, both admitted that CCY is not their biological child. [See: Enclosure 9 –para 5.4(a) & (b) & Exhibit “RJ-2” and “RJ-3” respectively]. [7] A statement was recorded from Dr. Robert Luk Tai Kong on 29.3.2016, a letter of confirmation dated 21.9.2017 and an undated letter from Dr. Robert Luk Tai Kong [See: Enclosure 9–para 5.4(c) & Exhibit “RJ-4”], informed that— (a) all birth records at Landmark Medical Centre (“LMC”) was confiscated by Bukit Aman police in year of 2008 for the investigation of child trafficking; (b) therefore, he could not confirm the birth of the child; (c) he denied the signature on form LM01 BG02785 was his; and (d) he denied he had fixed a rubber stamp on the form at Janab Woman Clinic and Maternity Home. [8] Based on the investigation, NRD discovered the particulars of the parents in the 1st Birth Certificate was inaccurate. P1 and P2 were then instructed by NRD to make an application to correct the information in CCY’s Birth Certificate. NRD approved the application for correction of information in CCY’s Birth Certificate and NRD issued an amended Birth Certificate (“2nd Birth Certificate”). In the 2nd Birth Certificate, the particulars of CCY’s parents were amended to “Maklumat Tidak Diperolehi” and CCY’s citizenship status was amended to “Bukan Warganegara”. [See: Enclosure 9 – para 5.5 & Exhibit “RJ- 5”]. [9] On 11.3.2021, CCY was adopted by P1 and P2 under the Adoption Act 1952 [Act 257] via an Adoption Order dated 11.3.2021. Pursuant to the Adoption Order dated 11.3.2021, NRD issued a new Birth Certificate for CCY on 27.3.2021 (“3rd Birth Certificate”). In the 3rd Birth Certificate, the particulars of CCY’s parents were registered with the information of P1 and P2 and CCY’s citizenship status was registered as “BUKAN WARGANEGARA”. [See: Enclosure 2 – para 14& 15 & Exhibit “5” and Enclosure 9 – para 5.6 and Exhibit “RJ-6”]. [10] On 3.11.2021, P1 and P2 have applied for citizenship for CCY and the application was submitted to Citizenship Division of NRD. The said application has submitted to Kementerian Dalam Negeri (“KDN”) for their considerations and decisions. Until today, P1 and P2 did not receive any respond from KDN. Court Analysis and Findings [11] Based on the evidence adduced through affidavits and submissions made by Parties, it can gather there are three issues below are to be decided by the court: First Issue (a) Whether CCY is citizen of Malaysia by operation of law under Article 14 (1)(b) and Part II, section 1(a) read together with section 19B, Part III of Federal Constitution (“FC”) and/or section 1(e) read together with section 2(3) Part II, Second Schedule FC Plaintiffs’ submission [12] The Plaintiffs’ argued that CCY is citizen of Malaysia by operation of law under Article 14(1)(b) and section 1(a) read together with section 19B, Part III of FC and/or section 1(e) read together with section 2(3) Part II, Second

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Schedule FC. Article 14(1)(b) of FC provides that – 14. “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: (a) … (b) every person born on or after Malaysia Day, and having any of the qualifications specified in Part II of the Second Schedule.”’ [Emphasis added] [13] Sections 1 and 2, Part II of the Second Schedule of FC which is produced below for the ease of reference: “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 last is at the time of the birth either a citizen or permanently resident in the Federation;. … (e) every person born within the Federation who is not born a citizen of any country otherwise than by virtue of this paragraph. 2 (1) … (2) … (3) 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 provision corresponding to paragraph (c) of that section or otherwise. [Emphasis added] [14] Section 19B of Part III Second Schedule of FC provides that— “19B. For the purpose of Part 1 and 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.”. [Emphasis added] [15] The Plaintiffs argued that based on Article 14(1)(b) of the FC read together with section1(a), Part II, Second Schedule of the FC, Plaintiff have proved that— (a) CCY was born in LMC Johor Bahru; (b) CCY was born on 23.7.2005, i.e. after Malaysia Day; (c) CCY was abandoned at birth, and thus “exposed in any place”; (d) the identities of his biological parents are unknown; and (e) CCY was adopted by the Plaintiffs right upon his birth. [16] The Plaintiffs submitted they have fulfilled the requirements and therefore the burden shifted to the Defendant to prove otherwise, as provided under section 19B, Part III of FC. The Defendant has failed through their Affidavits in Reply, adduce any evidence to rebut the above facts. In fact, the facts of the CCY’s place, date and time of born remained intact in the Defendant’s records, despite various process undertaken by the Defendant against the Plaintiffs, from the investigations in 2017 till the amendment and update to CCY’s birth certificate. [17] Plaintiffs further submitted that the Defendant would have the means and resources to verify from the medical center’s records the identity of the CCY’s biological mother based on the fact that CCY was born in LMC, Johor Bahru. The incident of Dr. Robert Luk Tai Kong referred by the Defendant shown that the Defendant could have obtained some documents with regards to the birth of CCY, but none of the documents tendered by the Defendant are relevant to CCY or the Plaintiffs. Hence, the Defendant’s accusation against the involvement of CCY and the Plaintiffs in the syndicate with Dr. Robert Luk Tai Kong cannot withstand at all and shall be disregarded by this court. Plaintiffs have cited Federal Court decision in Rosliza binti Ibrahim v Kerajaan Negeri Selangor & Anor [2021] 2 MLJ 181 to support their arguments. [18] Further, the Plaintiffs submitted Defendant in their submissions have conceded that there is no need to discuss the effects of the section 1(e) and subsection 2(3) Part II of FC since section 1(a) Part II read together with section 19B has been fulfilled as in the present case. Therefore, based on the case of Federal Court in CCH & Anor (on behalf of themselves and as litigation representative of one CYM, a child) v Pendaftar Besar bagi Kelahiran dan Kematian, Malaysia [2022] 1 CLJ 1 (“CCH case”), CCY is entitled for citizenship under operation of law. Defendant’s submission [19] The Defendant contended the facts of the present case can be distinguished from CCH case. In the present case, all the information regarding the place, date and time of born were provided by the Plaintiffs in the form of LM01 dated 22.8.2005. Based on the investigation and statements taken from Plaintiffs and Dr. Robert Luk Tai Kong, doctor at LMC shown the birth of CCY in LMC could not be ascertained. This is because all the records of LMC was confiscated by Bukit Aman police sometimes in May 2008 for the purpose of investigating child trafficking and such records never returned to LMC. [20] Further, the Defendant contended that although the documents produced not relevant to the present case, nonetheless it was relevant to other cases investigated by NRD and to show all records of LMC were confiscated by Bukit Aman police. Since CCY was born in year 2005, the records of CCY should have included in the records taken by Bukit Aman police. [21] The Defendant submitted that the fact of CCY handed by an aunty and unknown male doctor to the Plaintiffs with the payment of RM5000 at Wisma Maria, raised a doubt as to whether CCY was born at LMC. Subsequent thereto, it raised a doubt whether CCY is considered abandoned, found without protection or left at born place which was at LMC. Therefore, the Defendant submitted the fact of payment of RM5000 would have some relevance to the child trafficking case that being investigated by the Bukit Aman police. [22] Based on the facts of the present case, the Defendant submitted that CCY is not abandoned, found without protection or left by the biological parents and therefore the presumption that the child was born by a mother permanently resident at place of birth (presumption of jus sanguinis) did not arise. The facts of the birth place of CCY as stated in his Birth Certificate, which is at LMC only meet the requirement of jus soli under section 1(a) and the presumption under section 19B, Part III of the FC does not apply automatically. [23] The Defendant also contended that the Plaintiffs knew the biological mother of CCY and in fact CCY was not abandoned by his biological mother. Therefore, the Defendant submitted that CCY was taken by the Plaintiffs from CCY’s biological mother, who is aunty as alleged by the Plaintiffs, with the payment of RM5000. The Plaintiffs merely stated in their affidavits that CCY was abandoned to support their applications and they were adopting the same approach in CCH case to support their case. [24] On the issue of burden of prove under section 19B Part III of the FC, the Defendant argued that the Defendant have conducted investigation to verify the birth of CCY and the biological mother of CCY from Dr. Robert Luk Tai Kong and it was difficult for the Defendant to obtain complete documents regarding the birth of CCY and his biological mothers as all the documents of LMC was taken by the Bukit Aman police sometimes in May 2008. Therefore, the facts of the present case can be distinguished from CCH case. [25] The Defendant contended they have limited powers and their powers are subjected to Births and Death Registrations Act 1957 [Act 299] and therefore no further action taken by Defendant to get the information from Bukit Aman police. Hence, the Defendant submitted that they have discharged their burden of prove. [26] The Defendant further contended that there is no requirement to prove section 1(e) and subsection 2(3) Part II of FC in CCH case since the requirements under section 1(a) read together with section 19B, Part III of the FC have met. In the present case, the Plaintiffs have failed to meet those requirements and also failed to meet the requirements of jus sanguinis, that is CCY was not born as a citizen of any other country. The Defendant has cited the case of Than Siew Beng v Anor v. Ketua Pengarah Jabatan Pendaftaran Negara & Ors [2017] 8 CLJ 16 and 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 to support their contentions. Hence the Plaintiffs have failed to prove CCY is entitled for citizenship by operation of law under Article 14(1)(b) read together with section1(a), Part II, Second Schedule of the FC. Court analysis and findings [27] Article 14(1)(b) of the FC read together with section1(a), Part II, Second Schedule of the FC provides for acquisition of Malaysian citizenship by operation of law, in relation to persons born on or after Malaysia day. For a person to be a Malaysian citizen by operation of law under Article 14(1)(b) of the FC read together with section 1(a), Part II, Second Schedule of the FC, he must fulfill the requisite qualifications stipulated under the said provisions and the requisite qualifications must be met at the time of his birth. This is based on the decision of the Federal Court in CTEB & Anor v Ketua Pengarah Pendaftaran Negara, Malaysia & Ors [2021] 4 MLJ 236 at p. 277, 278 & 291. [28] Thus, Article 14(1)(b) of the FC read together with section 1(a), Part II, Second Schedule of the FC provides that for a person to be a Malaysian citizen by operation of law pursuant to these provisions, the requisite qualifications to be fulfilled are— (i) the person was born on or after Malaysia Day; (ii) the person was born within the Federation; and (iii) at the time of the person’s birth, one of his parents is a Malaysian citizen or permanently resident in the Federation. [29] The requisite qualifications for citizenship by operation of law under Article 14(1)(b) of the FC read together with section 1(a), Part II, Second Schedule of the FC are based on the concept of jus soli and the concept of jus sanguinis. These concepts were 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) (supra), at p. 320, 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 law, under art 14(1)(b) read with s 1(a), Part II, Second Schedule of the Federal Constitution.”. [Emphasis added] [30] It is not disputed that the Plaintiffs have fulfilled the first two requisite qualifications, namely CCY is born after the Malaysia Day, which is 23.7.2005 and he was born within the Federation, at LMC, Johor Bahru. That information remained intact in all three Birth Certificates issued by the Defendant. Therefore, the court finds that CCY has fulfilled the concept of jus soli. [31] However, it was contended by the Defendant that the Plaintiffs have failed to fulfill the third requisite qualifications, concept of jus sanguinis. Therefore, the court has to determine the issue “whether any of CCY’s parents is at the time birth a citizen or permanently resident in Malaysia”. In order to prove CCY is "found exposed, abandoned and/or unwanted", two things are presumed in accordance with section 19B, in particular— (a) jus sanguinis presumption that CCY was born to a mother who is permanently resident at the place where the finding was made; and (b) the date of the finding is taken as the date of the birth. [32] The crucial element to determine whether a child is found exposed is whether there is an act of abandonment by the biological mother. CCY has been left by his biological parents since his birth till today. Coupled with the fact of abandonment, the intention is also an important element for consideration. There was no attempt of contact by the biological parents or any trace of information regarding the biological parents are obtained. The longer the period the biological parents not looking for CCY, the most likely CCY is confirmed to be abandoned. [33] In the present case, there is evidence adduced to show CCY was handed to Plaintiffs by an aunty and unknown male doctor at Wisma Maria, Johor Bahru. The Defendant argued that to the place of birth of CCY is at doubt. However, it is observed that date of the birth and place of birth of CCY in all three Birth Certificates remain the same. Based on proviso to section 7 of Act 299, which provide “where a living child is found exposed and no information as to the place of birth is available, the birth shall be registered by the Registrar for the registration area in which the child is found”. Hence, the court found that the place of birth of CCY is at LMC, Johor Bahru, is the place where CCY was found was never disputed by the Defendant. The arguments of the Defendant are baseless. [34] In this regard, the court referred to the Federal Court decision in CCH case the Federal Court held that– “[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 art. 5(1). As such, any provisions on it must be construed as widely as possible. [47]... [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 Judiciary must be proactive fundamental rights. No matter the argument, we are constantly reminded of these fears and/or duties by both sided 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 constructed 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 our guaranteeing a fundamental right, the court should give their widest possible meaning without changing or warping the “base” meaning. And when construing interrelated provisions, the court should read them as a whole having regard to the purpose and intent of those provisions and harmonies their collective meaning rather than put them at odds with another.”. … [53] The operative words in s. 19B are “any newborn child found exposed in any place”. The purpose of this section, when read in context, must be to cover newborn 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 newborn children left abandoned near dumpsites, baby hatches, public or school toilets, place of worship and so on. A literal meaning of “exposed” suggests a newborn 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 newborn children, otherwise the overarching intent of preventing statelessness would be defeated or rendered illusory. [55] In the present case, we took pains to emphasis that throughout the course of this case, it has been an accepted fact that the child is the abandoned child who was born in Hospital Universiti Kebangsaan Malaysia, Cheras. This fact was acknowledged in the adoption order and in the third birth certificate. During the hearing, learned SFC disagreed with the applications of s. 19B to the facts of this appeal, suggesting that the appellants had actively concealed facts, that the identity of the biological parents is known or discoverable but kept hidden. [56] The simple answer to that assertion is this. The follow-up words in s. 19B are contained in the phrase “until the contrary is shown”. Meaning, any person who claims that the child was not “found exposed” or otherwise abandoned by the mother as the case may be, bears the burden of showing the identity of the mother and more importantly, that the mother is not permanently resident at the place of the finding…”. [Emphasis added] [35] According to the CCH case (supra), the provisions which govern citizenship shall be given the broadest possible interpretation. Based on the case of CCH case, the court has given the broadest interpretation for the phrase "found exposed" to include a child abandoned at the place of birth by the birth mother whose identity is unknown. Besides, the Federal Court has taken judicial notice of the harsh realities of life: this includes newborn children left abandoned near dumpsites, baby hatches, public or school toilets, places of worship and so on. Therefore, the word “includes” alludes to non-exhaustive nature and hence “dumpsite, baby hatches, public or school toilets, places of worship and so on” should not be taken as conclusive locations or closed categories of places for the purpose of identifying and be used in the definition of the term “found exposed”. [36] When the words used in section 19B are “in any place”, literal meaning shall be given since there is no ambiguity involved on this matter. It literally means any place whether it is safe environment or dangerous location. The sample of places referred in CCH case serve merely as a guidance rather than a strict requirement which is nowhere to be found in the FC. Should FC intend to exhaustively restrict the scope of “any places”, the framer would have expressly listed down the indicative places instead of using the words “any places”. [37] Besides, the word “exposed” has been defined by the Federal Court in the CCH case which states that it “must encompass the plight of abandoned newborn child as otherwise the overarching intent of preventing statelessness would be defeated or rendered illusory”. [38] In the present case, the Defendant are mainly relying on the admission made by P1 and P2 during the investigation, the statement made by Dr. Robert Luk Tai Kong taken on 29.3.2016 that all the records of LMC were taken by Bukit Aman police sometime in May 2008 for investigating child trafficking and then submitted that the Defendant was unable to obtain complete documents regarding the birth of CCY. The Defendant also assume the records of CCY are included in the documents taken by Bukit Aman police since CCY was born in year 2005. Therefore, the Defendant relying on passage of time and argued that it has discharged its burden because the present case is in year 2021. [39] The court could not agree with the Defendant’s arguments as it is merely based on assumptions. It is noted the date Plaintiffs went to NRD and applied for identity card of CCY was on 28.7.2017. The date statement taken from P1 and P2 were on 17.9.2017, whereas the statement taken from Dr. Robert Luk Tai Kong was on 29.3.2016, which was 1 year 5 months prior to date the Plaintiffs went to NRD and applied for identity card of CCY. Further, none of the letter of confirmation dated 21.9.2017 and an undated letter from Dr. Robert Luk Tai Kong [See: Enclosure 9–para 5.4(c) & Exhibit “RJ-4”] were referred to the Plaintiffs and CCY and the investigations were on Janab Woman Clinic and Maternity Home. No further investigation carried out by the Defendant to obtain the documents pertaining the birth of CCY from Bukit Aman police and the Defendant did not produce any evidence to support its various accusations in the present case. [40] Therefore, the court finds that in fact there is no investigation carried out by the Defendant to ascertain whether there was a birth registered on the place, time and date alleged by the Plaintiffs. The so-called investigations on Dr. Robert Luk Tai Kong were done 1 year 5 months ago for other cases. It is not relevant to the present case. The Defendant is merely relying on the admission of the P1 and P2 and made conclusions that CCY is not citizen of Malaysia. [41] Further, the court finds that no evidence adduced in any affidavits filed by the Defendant to show that aunty is the biological mother of CCY. It is merely stated in the Defendant’s submissions. Mere allegations without basis by the Defendant could not be considered and accepted by the court. Further, the court finds that the statements by the Plaintiffs to the Defendant about the payment of RM5000 are consistent and statements were recorded way before this application was filed in court. The Plaintiffs explained they paid to the aunty as they sympathize the child who would be abandoned at birth if not adopted. Hence, no adverse inference ought to be drawn against Plaintiffs’ truthful and consistent statements. [42] Based on the Affidavits, it is the finding of this court that CCY was found exposed. Therefore, the court ruled that it is presumed that CCY was born to a mother who is permanently resident at the place where the finding was made, which is in Malaysia. Once section 19B is invoked, it is for the Defendant to rebut these presumptions to either show that— (i) the child was not born of a mother permanently resident at the place where the newborn child was found; or (ii) the date of finding was not the date of birth. [43] As decided in paragraphs 38 to 40 above, the Defendant has failed to provide any contrary evidence to prove that the biological mother of CCY is not a permanent resident of Malaysia. The failure of Defendant in rebutting the principle of jus sanguinis shall be deemed as an admission from Defendant that the Plaintiffs had satisfied the principle of jus sanguinis. Henceforth, the principle found in the case of Ng Hee Thong & Anor v Public Bank Bhd [1995] 1 CLJ 609 is applicable in this matter. [44] As decided by Federal Court in CCH case and the case of Rosliza bt Ibrahim (supra), it is illogical for the Plaintiffs to prove a negative fact that the Plaintiffs have no details of the biological parents of CCY. The duty to uncover the information about the biological parents of CCY falls on the Defendant. The Defendant, as the sole government agency handling the registration of birth certificate, has all the important machinery, powers, means, resources and access to evidence and records to conduct appropriate investigations to ascertain the truth. The Defendant cannot merely claim they have limited powers and their powers are subjected to Act 299 and also due to the passage of time, they cannot obtain completed documents pertaining to the birth of CCY from Bukit Aman police. Not a single attempt made by the Defendant to obtain the said documents from Bukit Aman police. [45] Therefore, it is the duty of Defendant to discharge the burden of proof regarding the identity and nationality of CCY’s biological mother since they have contended about the availability of the information and failing which adverse inference shall be drawn against them. [46] The court noted the Plaintiffs also seek the reliefs under Article 14 (1)(b) and section 1 (e) read together with section 2(3) Second Schedule FC. The court of the view that since the Plaintiffs have met the requirements under section 1(a) Part II, Second Schedule read together with section 19B, Part III of FC, there is no requirement for the Plaintiffs to prove the requirements under section 1 (e) and section 2(3), Part II Second of FC. It is suffice for Plaintiffs to prove one of the requirements under section 1, Part II of Second Schedule of FC as the provisions are to be read disjunctively. If the provisions are to be read conjunctively, it would lead to chaos and absurdity. In this regard, the court refer to the case of Rf Brown & Co Ltd v T & J Harrison (1927) 43 TLR 394 and in the case of Federal Steam Navigation Co Ltd v Dept of Trade Industry (1974) 1 WLR 505, the court state the following: “There is certainly no doubt that generally it is assumed that “or” is intended to be used disjunctively and the word “and” conjunctively. Nevertheless, it is equally well settled that if so to construe those words leads to an unintelligible or absurd result, the courts will read the word “or” conjunctively and “and” disjunctively, as the case may be; or, to put it another way, substitute the one word for the other.” [Emphasis added] [47] Further, it was decided in CCH case that once the Plaintiffs prove one of the requirements under section 1(a) Part II, Second Schedule of FC then section 19B, Part III of FC will be triggered and the burden will shift to the Defendant to prove otherwise. Second Issue (b) Whether CCY is entitled for citizenship pursuant to Adoption Order dated 11.3.2021 made under Adoption Act 1952 [Act 257] [48] The court finds that the Plaintiffs do not pursue with their arguments on this issue despite they have sought this relief from this court. The Defendant argues that the definition of “parents” in section 1(a) are referred to every one born in the Federation and at least one of the parents at time of birth is citizen of Malaysia or permanent resident and it does not include the adopted parents pursuant to Act 257. [49] Further, the Defendant contended that section 9 of Act 257 provides all the rights, duties, obligations and liabilities of the parent, guardian of the adopted child, in relation to the future custody, maintenance and education of the adopted child. Therefore, section 9 of Act 257 is confined to the application in the Act itself and shall not extend to include the citizenship rights as in the FC. In this regard, the court agree with the argument of the Defendant. Therefore, CCY is not entitled for citizenship pursuant to Adoption Order dated 11.3.2021 made under Act 257. Third Issue (c) Whether failure of Plaintiffs to state intitulement in OS regarding the prayer or relief in the form of mandamus is fatal [50] The Defendant raised a new point in their Written Submission In Reply (Enclosure 27), that failure of Plaintiffs to state intitulement in OS regarding the prayer or relief in the form of mandamus is fatal based on the case of Abad Arena Juara Son Bhd v. Rajesh Jaikishan [2019] 1 LNS 1416, Ketua Pengarah Imigresen Malaysia lwn. Heng Peo [2007] 2 CLJ 111 and Phua Siong Hoe v. Rhb Bank Bhd & Anor; Persatuan Pemilik Tanah Taman Pandan (Intervenor) [2001] 6 CLJ 326. The failure will render the court has no jurisdiction to decide on this matter and any order made by the court for relief no. 3, 4 and 5 as sought by the Plaintiffs are not valid. [51] In reply to the Defendant’s objections, the Plaintiffs contended the objections raised for the first time in Enclosure 27 has taken the Plaintiffs by surprise. The declaratory relief s is in fact contained in para 1 and 2 of the OS, not in para 3, 4 and 5 as referred to by the Defendant in its current procedural objection. The reliefs no. 3, 4 and 5 are remedies in the nature of specific relief. They are remedies of an order requiring a specific act to be done or forborne by, inter alia, a person holding public office which may be given as stated in section 44 of the Specific Relief Act 1950 (“SRA”), exist independently of the remedy of the order of mandamus referred to in Order 53 rule 1 of the Rules of Court 2012 (“ROC”). There is nothing in section 44 of the SRA to provide that leave has to be obtained before the application for the remedy is sought for, nor the “intitulement of mandamus” must be mentioned in the OS. The Plaintiffs submitted that the non-compliance to ROC is not fatal and is rectifiable. In support their argument, the Plaintiffs have cited the decision of Federal Court in the case of Malayan Banking Berhad v Chairman Sarawak Housing Developers' Association [2014] MLJU 598, which has decided that “any omission or mistake is to be regarded as an irregularity, rectifiable so long as it can be undertaken without causing injustice. The distinction between mere irregularities and nullities now ceased to exist…”. [52] The court finds that any contentions or issues not raised in the Affidavit In Reply and which was only subsequently brought up by the Defendant in Enclosure 27 is wholly inadmissible and shall not be accepted as the Defendant must not take his opponent or the court by surprise. The Defendant should have brought up the objections when they received OS from the Plaintiffs. Therefore, the court dismiss the objection raised by the Defendant. Conclusion [53] Based on the reasons stated above, the court allows Enclosure 1 for the reliefs sought by the Plaintiffs as in prayers 1, 3, 4 and 5. No order as to costs. Dated 10 May 2023. Signed, ………………………….. Wong Mee Ling Judicial Commissioner High Court in Malaya Johor Bahru Johor Darul Ta’zim. Counsel/Solicitor: For the Applicants: Ms. WS Wong Messrs. WS Wong & Co A-1-29 IOI Boulevard Jalan Kenari 5 Bandar Puchong Jaya 47170 Puchong Selangor For the Respondent: Puan Zahilah Binti Mohammad Yusoff Peguam Kanan Persekutuan Pejabat Penasihat Undang-Undang Negeri Johor Aras 2 Bangunan Dato’ Jaafar Muhammad Kota Iskandar 79100 Iskandar Puteri Johor Cases referred to: 1. Rosliza binti Ibrahim v Kerajaan Negeri Selangor & Anor [2021] 2 MLJ 181 2. CCH & Anor (on behalf of themselves and as litigation representative of one CYM, a child) v Pendaftar Besar bagi Kelahiran dan Kematian, Malaysia [2022] 1 CLJ 1 3. Than Siew Beng v Anor v. Ketua Pengarah Jabatan Pendaftaran Negara & Ors [2017] 8 CLJ 16 4. 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 5. CTEB & Anor v Ketua Pengarah Pendaftaran Negara, Malaysia & Ors. [2021] 4 MLJ 236 6. Ng Hee Thong & Anor v Public Bank Bhd [1995] 1 CLJ 609 7. Rf Brown & Co Ltd v T & J Harrison (1927) 43 TLR 394 Rf Brown & Co Ltd v T & J Harrison (1927) 43 TLR 394 8. Federal Steam Navigation Co Ltd v Dept of Trade Industry (1974) 1 WLR 505 9. 10. Abad Arena Juara Son Bhd v. Rajesh Jaikishan [2019] 1 LNS 1416 11. Ketua Pengarah Imigresen Malaysia lwn. Heng Peo [2007] 2 CLJ 111 Phua Siong Hoe v. Rhb Bank Bhd & Anor; Persatuan Pemilik Tanah 12. Taman Pandan (Intervenor) [2001] 6 CLJ 326 Malayan Banking Berhad v Chairman Sarawak Housing Developers' Association [2014] MLJU 598 Legislation referred to: 1. Federal Constitution 2. Births and Deaths Registration Act 1957 [Act 299] 3. Adoption Act 1952 [Act 257] 4. Rules of Court 2012 Date of Hearing: 29.11.2022 Date of Decision: 21.2.2023