1. ) Kamaladevi A/P Kanniappan v 1. ) Pendaftar Kelahiran dan Kematian (AB-24-2-05/2023)

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1 DALAM MAHKAMAH TINGGI MALAYA DI TAIPING DALAM NEGERI PERAK DARUL RIDZUAN SAMAN PEMULA NO.: AB-24-2-05/2023 Dalam perkara Perkara-Perkara 5, 8, 14 dan

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Jadual Ke-2, Perlembagaan Persekutuan Dan Dalam perkara Aturan 7 dan Aturan 15 Kaedah 16, Kaedah-Kaedah Mahkamah 2012 Dan Dalam perkara Seksyen 4 Akta Pendaftaran Negara 1959, dan Peraturan-Peraturan 4, 11 dan 14 Peraturan-Peraturan Pendaftaran Negara 1990 Dan Dalam perkara Seksyen-Seksyen 4, 27, 33, Akta Membaharui Undang-Undang (Perkahwinan dan Penceraian) 1976 Dan Dalam perkara bidang kuasa Mahkamah yang sedia ada ANTARA 1. KAMALADEVI A/P KANNIAPPAN (No. Daftar Sijil Kelahiran: 155233XA) 2. THERESA ROSLIN A/P STEVEN (No. Daftar Sijil Kelahiran: CD51486) 3. MELVIN A/L STEVEN (No. Daftar Sijil Kelahiran: CD51488) S/N zFogh1du0CoynKcWKD/vw 4. DEVHEDARSHAN A/L PREMKUMAR (No. Daftar Sijil Kelahiran: 008394QA) (Seorang Orang Bukan Dewasa Mendakwa Melalui Theresa Roslin A/P Steven, Wakil Litigasinya) 5. ILAVARSI A/P PREMKUMAR (No. Daftar Sijil Kelahiran: 009272QA) (Seorang Orang Bukan Dewasa Mendakwa Melalui Theresa Roslin A/P Steven, Wakil Litigasinya) 6. LAKSHAN A/L PREMKUMAR (No. Daftar Sijil Kelahiran: 009273QA) (Seorang Orang Bukan Dewasa Mendakwa Melalui Theresa Roslin A/P Steven, Wakil Litigasinya) … PLAINTIF-PLAINTIF DAN 1. PENDAFTAR KELAHIRAN DAN KEMATIAN 2. PENDAFTAR BESAR KELAHIRAN DAN KEMATIAN 3. KETUA PENGARAH PENDAFTARAN NEGARA 4. MENTERI DALAM NEGERI 5. KERAJAAN MALAYSIA …DEFENDAN-DEFENDAN GROUNDS OF JUDGMENT INTRODUCTION [1] This application concerned the attempts of three generations from the same family seeking for the right to be recognised as Malaysian citizens and, needless to say, a better life for all of them. As the facts will show later in this Grounds of Judgment, they had encountered many “difficulties” in the process of trying to comply with the requirements of the S/N zFogh1du0CoynKcWKD/vw law within their very limited resources, including a tragedy that befell two of the members of this unfortunate family. As fate would have it, they were trapped in a situation of “Generational Statelessness”, despite being born in Malaysia, because they did not possess the national identity cards and non-registration of marriages which occurred as a result of the previous generations’ lack of awareness on the importance of such documents. It was a “vicious cycle”, which could have been avoided had members of this family, as children, been accorded with at least basic education to enable them to be aware of their human rights and civil liberties. BACKGROUND [2] The Originating Summons (Encl. 1) was filed by the Plaintiffs on 24.5.2023. The Court delivered its decision on 20.5.2024 wherein the Court allowed the application in part with no order as to costs. Dissatisfied with the Court’s decision, the Defendants have filed a Notice of Appeal to the Court of Appeal (CoA) on 14.6.2024. The Court now gives its reasons in this Grounds of Judgment. The parties were referred to as they were in the High Court (HC). [3] The reliefs sought from the Court in Encl. 1 were as follows: “1. Suatu deklarasi bahawa Plaintif-Plaintif merupakan warganegara Malaysia melalui perlaksanaan undang-undang selaras menurut Perkara 14(1)(b) yang dibaca bersama dengan Seksyen 1(a) Jadual Kedua, Bahagian II, Perlembagaan Persekutuan; 2. Secara alternatif, suatu deklarasi bahawa Plaintif-Plaintif merupakan warganegara Malaysia melalui perlaksanaan undang-undang selaras dengan Perkara 14(1)(b) yang dibaca bersama dengan Seksyen 1(e)

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Jadual Kedua, Bahagian II, Perlembagaan Persekutuan; S/N zFogh1du0CoynKcWKD/vw 3. Suatu deklarasi bahawa Plaintif-Plaintif berhak untuk diisukan dengan surat kelahiran dengan status “WARGANEGARA”; 4. Suatu deklarasi bahawa Plaintif-Plaintif berhak untuk diisukan kad pengenalan selaras dengan Peraturan-Peraturan Pendaftaran Negara 1990 dengan status “WARGANEGARA”; 5. Suatu deklarasi bahawa Plaintif-Plaintif berhak untuk didaftarkan nama ke dalam daftar sepertimana di bawah Seksyen 4 Akta Pendaftaran Negara 1959, dan Peraturan-Peraturan 4, 11 dan 14 Peraturan-Peraturan Pendaftaran Negara 1990; 6. Suatu deklarasi bahawa Plaintif-Plaintif Pertama dan Ke-2 berhak untuk mendaftarkan perkahwinan masing-masing berdasarkan Akta Membaharui Undang-Undang (Perkahwinan dan Penceraian) 1976 di Jabatan Pendaftaran Negara; 7. Suatu deklarasi bahawa hak-hak Plaintif-Plaintif Pertama dan Ke-2 di bawah Perkara 8(1) Perlembagaan Persekutuan telah dicabuli oleh Defendan-Defendan; 8. Sebarang arahan, perintah atau writ untuk penguatkuasaan hak yang diberikan oleh Bahagian II, Perlembagaan Persekutuan, atau mana-mana daripadanya, atau untuk memberikan keadilan penuh kepada subjek perkara tindakan ini; 9. Tiada perintah untuk kos; dan 10. Apa-apa relif atau perintah atau arahan lanjut yang dianggap suaimanfaat oleh Mahkamah yang Mulia ini.’. [4] The Plaintiffs had produced this chart of their family tree, and which I have reproduced below for ease of reference: S/N zFogh1du0CoynKcWKD/vw FACTS OF THE CASE [5] Before I go further, the Plaintiffs will be referred to as P1, P2, P3, P4, P5 and P6 where necessary. P1 is the biological mother of both P2 and P3 whereas P4, P5 and P6 are the biological children of P2. All 6 of them were born and raised in Malaysia. They do not hold the citizenship of any other country, and neither have they been out of this country as they do not hold any national identity card (IC) and Malaysian passport. The only legal documents that they possess are the birth certificates issued by the Jabatan Pendaftaran Negara (JPN). The marriages of P1 and P2 were not registered because of their non-possession of an IC. S/N zFogh1du0CoynKcWKD/vw [6] Encl. 1 was filed together with the Affidavits in Support affirmed by P1 (Encl. 2), P2 (Encl. 3), P3 (Encl. 4), Vathumalai A/L Karuppan (P1’s maternal uncle, Encl. 5) and Kannamah A/P Rengan (a niece of P1’s father, Encl. 6). In reply, the Defendants filed 5 affidavits namely Encls. 8, 9, 10, 11 and 12 where the deponent was Zamri Bin Misman, Ketua Pengarah Pendaftaran Negara under the Akta Pendaftaran Negara 1959 [Akta 78] and Pendaftar Kelahiran dan Kematian under Akta Pendaftaran Kelahiran dan Kematian 1957 [Akta 299]. The Plaintiffs then filed Affidavits in Reply to the Defendants’ replies in Encls. 13, 14, 15, 16, 17 and 18. It was noted that Encl. 18 was affirmed by Dr. Michael Jeyakumar Devaraj who in 2019 had brought P1, P3 and Vathumalai A/L Karuppan to carry out a DNA profile test at the Jabatan Kimia Malaysia, Petaling Jaya, Selangor. The outcome of the result is as follows: i. P1 is Vathumalai’s biological niece; and ii. P3 is the biological son of P1. (Refer to Exhibit MJ-2 of Encl. 18). [7] For ease of reference, based on the facts in the Affidavits in Support of Encl. 1, I have produced a summary below in regard to their birth details: Name Date of Birth Place of Birth Registration 1. Kamaladevi A/P Kaniappan 29.6.1978 Muar, Johor Birth Certificate registered on 26.4.2022 2. Theresa Roslin A/P Steven 27.6.1998 Teluk Intan, Perak Birth Certificate registered on 11.5.2009 3. Melvin A/L Steven 22.8.2001 Taiping, Perak Birth Certificate registered on 11.5.2009 4. Devhedarshan A/L Premkumar 30.4.2015 Taiping, Perak Birth Certificate registered on 11.5.2015 5. Ilavarsi A/P Premkumar 21.6.2017 Taiping, Perak Birth Certificate registered on 3.7.2017 6. Lakshan A/L Premkumar 7.3.2022 Ipoh, Perak Birth Certificate registered on 12.3.2022 S/N zFogh1du0CoynKcWKD/vw First, Second and Third Generations [8] I have blotted out the last few digits of their IC numbers for security reasons. The First Generation of this family in Malaysia (as far as the proceedings were concerned) were made up of P1’s grandparents, namely M Karuppan (NRIC No.: Unknown) and Mukayee A/P Karpaiya (NRIC No.: 420101-06-XXXX (805XXXX)). Their family history can be obtained from the Affidavit of P1 (Encl. 2), which stated the following: “18. … The First Generation was born in Malaysia pre-independence, and they were Malaysian citizens. The First Generation was married customarily and has 2 children namely, Vathumalai A/L Karuppan (NRIC No.: 580612-05- XXXX) (“my Biological Uncle”) and my Biological Mother. The 1st Generation has passed away. Now produced and shown to me a copy of the identity card and death certificate of Mukayee A/P Karpaiya duly marked and referred to collectively as Exhibit “KK-1”. 19. My Biological Father and my Biological Mother (“2nd Generation”) are also born in Malaysia and citizens of Malaysia. 20. When my Biological Mother was young, her stepfather, Ayankannu pawned the birth certificate of my Biological Uncle and my Biological Mother to a moneylender as security for a loan. 21. Notwithstanding that, when my Biological Uncle was growing up, he personally pleaded to the moneylender who held his birth certificate and managed to retrieve it. By using that, he managed to obtain an identity card. Now produced and shown before me is a copy of the identity card of my Biological Uncle duly marked as Exhibit “KK-2”. 22. After several years, my Biological Uncle successfully cleared the loan and retrieved my Biological Mother’s birth certificate. S/N zFogh1du0CoynKcWKD/vw 23. The 2nd Generation too married customarily prior to my birth before 29.6.1978. They were blessed with 3 children namely, Selvam A/L Kanniappan (“my Biological Brother”), Kamala A/P Kanniappan (NRIC No.: 770602-01- XXXX (842 XXXX)) (“my Biological Sister”) and myself. 24. As my Biological Mother had no identity card, her marriage with my Biological Father could not be registered with the National Registration Department, hence making me an illegitimate child. 25. In 1976, my Biological Uncle made an attempt to apply for an identity card for my Biological Mother in National Registration Department in Muar, Johor. On 25.3.1985, my Biological Mother once again applied to the National Registration Department for an identity card. This time, the National Registration Department issued a temporary identity card to my Biological Mother. Now produced and shown before me is a copy of my Biological Mother’s temporary identity card duly marked as Exhibit “KK-3”. 26. As my Biological Dad was sick, my Biological Mother could not stay anywhere permanently because she simply could not afford it. She had to stay in various places including the house of her relatives. 27. On 24.7.1988, my Biological Father passed away. About 15 years later, my Biological Mother passed away on 12.2.2003. Now produced and shown before me is a copy of the death certificates of my Biological Father and my Biological Mother dated 24.7.1988 and 12.2.2003 respectively duly marked collectively as Exhibit “KK-4”. 28. At the time of death, My Biological Mother only had a temporary identity card with her. This was because she did not manage to collect her identity card from the National Registration Department. 29. Although my Biological Brother and I do not have an identity card, my Biological Sister on the other hand managed to obtain Malaysian citizenship S/N zFogh1du0CoynKcWKD/vw and an identity card. She had converted to Islam faith. Unfortunately, she passed away on 16.12.2012 due to a foot ulcer, a secondary complication of diabetes. Now collectively produced and shown to me and marked as Exhibit “KK-5” is a copy of Kamala A/P Kaniappan’s birth certificate dated 15.6.1977, a copy of a declaration that Kamala A/P Kaniappan converted to Islam, dated 19.12.2011 and a copy of Kamala A/P Kaniappan’s death certificate dated 19.12.2012.”. [9] Paragraphs 30 – 37 of Encl. 2 explained about P1’s own immediate family comprising her husband and their 4 children, i.e. 3 boys and a girl. P1 married Steven a/l S Selesiyah (IC No. 750227-08-XXXX). Despite her husband being a Malaysian citizen, their marriage could not be registered, thus making all her children illegitimate. P1’s husband passed away on 13.10.2009 due to liver cancer. Ever since his death, P1’s and her children’s lives had been engulfed in hardship (refer to paragraphs 34.1 - 34.4 of Encl. 2). According to P1, her first and third child (both boys), could not endure the hardship and committed suicide. The death certificate of her first son was exhibited (Exhibit KK-7) where the cause of death was stated as “Asphyxia secondary to strangulation by hanging” and date of death was 12.1.2012. There was no death certificate (unregistered) of the other son who allegedly committed suicide as it was submitted that his body was never found. Her daughter, P2, married a Malaysian citizen Premkumar a/l Rajendran (IC No.: 971003-08-XXXX) in 2014 but her marriage too could not be registered, thus making her 3 children P4, P5 and P6 illegitimate. [10] In 2015, P1 initiated the process of obtaining citizenship by first applying for late registration of birth certificate from JPN but it was rejected on 22.5.2018 (refer to Exhibit KK-8 in Encl. 2). Subsequently, P1 and P3 underwent DNA testing to confirm their relationship with P1’s uncle, a S/N zFogh1du0CoynKcWKD/vw Malaysian citizen. The result of the DNA test showed conclusive proof and confirmed their relationship to P1’s uncle (refer to Exhibit “KK-9” at pages 64 to 66 of Encl. 2). The test revealed that the P1 is the niece of Vathumalai, while P3 is the son of P1. Around May 2021, P1 used the result of the DNA test to submit another application for late registration of a birth certificate. This time, JPN approved her application and issued a late-registered birth certificate on 26.4.2022. However, despite the issuance of this document, she was still not recognised as a Malaysian citizen as the citizenship information on her birth certificate was recorded as “information not obtained” (refer to Exhibit “KK-10” of Encl. 2). Earlier on 11.5.2009, P2 and P3 had managed to obtain JPN approval to register their births. But their citizenship status, including those of P4, P5 and P6 are still stated as “Belum ditentukan” despite P2 having married a Malaysian. EVALUATION AND FINDINGS OF THE COURT [11] P1 was born on 29.6.1978 in Kg. Serom 3, Muar. Her birth could not be registered at that time because her mother, Letchimee a/p M. Karuppan, did not have an IC. Hence, P1 was considered an Illegitimate child. P1’s father, Kaniappan a/l Parasuraman was a Malaysian according to P1. Her parents passed away on 24.7.1988 and 12.2.2003, respectively. In the exhibit KK-4 of Encl. 2, P1 had exhibited her father’s Perakuan Kematian and it was stated his IC number as 794XXXX. Her mother’s Permit Menguburkan was also exhibited but the name stated on it was “Letchumy a/p Sivaletchumy” and no IC number given. The date of death was 11.10.2002. Therefore, this exhibit did not support P’s contention that it was her mother’s death certificate. Moreover, the document was not a death certificate but only a permit to bury. Actually, it S/N zFogh1du0CoynKcWKD/vw was P1’s grandmother, Mukayee, who passed away on 12.2.2003 as can be seen in her death certificate in Exhibit KK-1 of Encl. 2. At the time of death, Mukayee’s address was stated as No. 32, Jln Mewah 8, Taman Mewah, Yong Peng, Johor which was the same address as her son Vathumalai’s address stated in his IC (refer to Exhibit KK-2 of Encl. 2). There was no information in the affidavits in regard to the date of P1’s grandfather’s death (Karuppan). [12] In 1976, P1’s uncle Vathumalai attempted to obtain an IC for P1’s mother at the JPN, Muar. On 25.3.1985, P1’s mother again applied to JPN for an IC. This time, JPN through its officer by the name of Noraini Bt Mohd Taib issued P1’s mother a temporary ID (Exhibit KK-3) which was the Borang NR 7 (Surat Pengenalan Sementara dan Kenyataan Penerimaan Permohonan Satu Kad Pengenalan” bearing No. J 384093. There was a notation on the top part of the temporary ID which stated “GANTIAN RESIT B 299939 / 26.10.76 DIKECUALIKAN OLEH JPN MUAR”. And below the notation was stated “DAFTAR LEWAT (93)-168/94 PT.7.”. P1 claimed that her late mother did not manage to collect her identity card from JPN prior to her death. The notation was not denied by the Defendants and therefore, the Court can accept the said document as supporting P1’s version that her late mother did attempt to obtain an IC. [13] The Defendants’ affidavit affirmed by Zamri Bin Misman, who is the Ketua Pengarah Pendaftaran Negara and also Pendaftar Besar Kelahiran dan Kematian (hereinafter I will refer to him as the “DG” in short) stated in response to the Plaintiffs’ affidavits, in summary that: i. the copies of the Plaintiffs’ documents issued by his department were acknowledged but not the information contained therein; S/N zFogh1du0CoynKcWKD/vw ii. he had no personal knowledge of P1’s family history and could not verify the family ties of members of P1’s family due to inadequate documentation; iii. the Defendants should not be penalised for not registering the Plaintiffs’ births because of the inadequacies on the part of their family (by not complying with the law on registration of births and marriages); iv. the law on registration of births and marriages are clear (jelas); v. the customary marriages in the Plaintiffs’ family cannot be recognised after 1.3.1982 in accordance with the provisions of the Law Reform (Marriage and Divorce) Act 1976 [Act 164]; vi. as the marriages of P1 to Steven a/l Selesiyah, and P2 to Premkumar a/l Rajendran were not registered, hence all their offsprings were illegitimate; vii. by virtue of Section 17 of Part II of Part III of the Federal Constitution, in respect of illegitimate children, citizenship would follw the mother’s status wherein here P’s mother was not considered as a citizen; viii. Letchimee’s tempory identification document was not a temporary IC but was a certification that a application for an IC was made by the applicant; ix. registration of marriage merely required a personal identification document; x. a birth certificate was sufficient for the purposes of registration of marriage; xi. despite not being recognised as citizens and without the privileges accorded to Malaysians, they can still live their lives in Malaysia; S/N zFogh1du0CoynKcWKD/vw xii. late registration of births are within the discretion of his department under s.12(1) of the Registration of Birth and Death 1957 [Act 299] and National Registration Rules 1990; xiii. late registration of births were rejected as there were insufficient information given by the applicants when the interview was made by his department; xiv. P1’s application for late registration was made 38 years after her birth and by then her parents had passed away, hence the information given could not be verified; xv. the DNA result stated the name of the donor of the blood specimen as “Kamaladevi a/p Karuppan” whereas P1 claimed that her father’s name was Kaniappan; xvi. there was nothing in the law which provided for granting of citizenship by proof of relationship with an uncle; xvii. the department did not have any information that Vathumalai a/l M Karuppan was the elder brother of Letchimee, P1’s mother; xviii. his department did not have information in regard to the identity of P1’s father; xix. P1’s parents never registered their marriage under Act 164; xx. JPN had not acted irrationally or unreasonably in rejecting the Plaintiffs’ applications for citizenship. [14] The DG averred that the Plaintiffs did not qualify for citizenship by operation of law because the status of their biological parents could not be ascertained. Moreover, the Defendants contend that citizenship by operation of law is determined not only through the birth place of the child, i.e. principle of jus soli but also on the principle of jus sanguinis. Lastly, in regard to the Plaintiffs’ assertion on their universal rights under the S/N zFogh1du0CoynKcWKD/vw Convention on the Rights of the Child, the Court noted the Defendants’ assertion that Malaysia has reserved its rights on Art. 7 of the said convention which states: 1. Article 7 The child shall be registered immediately after birth and shall have the right from birth to a name, the right to acquire a nationality and. as far as possible, the right to know and be cared for by his or her parents. 2. States Parties shall ensure the implementation of these rights in accordance with their national law and their obligations under the relevant international instruments in this field, in particular where the child would otherwise be stateless. [15] To reiterate, it was submitted by the Plaintiffs that theirs was a case of “Generational Statelessness” which was caused by the absence or loss of documentation and the language barriers and the lack of awareness of the previous generations of the legal issues. P1 demanded equality before the law by virtue of the fact that her grandparents and parents (First and Second Generation) were Malaysians and the documents in their possession were sufficient proof of their status as Malaysian citizens. By the same argument, P2 and P3 claimed that their parents (P1 and her husband) were also Malaysian citizens by operation of law, therefore making P4, P5 and P6 having citizens of Malaysia status. The Plaintiffs relied on Arts. 5, 8, 14(1)(b) and Sections 1 (a) and (e) Second Schedule, Part II of the Federal Constitution as well as s. 4 of the National Registration Act 1959 and National Registration Regulations 1990, and ss. 4, 27 and 33 of the Law Reform (Marriage and Divorce) Act 1976. [16] Additionally, the Plaintiffs submitted that Art. 14(1)(b), read together with Section 1(e) of the Second Schedule, Part II, Federal Constitution are S/N zFogh1du0CoynKcWKD/vw aimed at preventing the issue of generational statelessness from happening. They contended that the P1 is and/or should be granted Malaysian citizenship by the operation of law, according to: i. Art. 14(1)(b) read together with Section 1(a) of the Second Schedule, Part II, Federal Constitution; or ii. Art. 14(1)(b) read together with Section 1(e) of the Second Schedule, Part II, Federal Constitution. [17] Therefore, if the Court upheld their argument, making P1 a citizen by operation of law, either according to Art. 14(1)(b) read together with Section 1(a) and/or Section 1(e) of the Second Schedule, Part II, Federal Constitution, then P1 through to P6 would also be citizens by operation of law, pursuant thereto. [18] Further and/or alternatively, it was contended that her daughter P2 and her offsprings P4, P5 and P6 are/or should be granted Malaysian citizenship by operation of law, in accordance with: i. Art. 14(1)(b) read together with Section 1(a) of the Second Schedule, Part II, Federal Constitution; or ii. Art. 14(1)(b) read together with Section 1(e) of the Second Schedule, Part II, Federal Constitution. [19] If P2 was a citizen by operation of law, in either of the situations above, it was submitted that her brother P3 should also be granted citizenship by operation of law, pursuant to Art.14(1)(b) read together with Section (a) of the Second Schedule, Part II, Federal Constitution and/or Art. 14(1)(b) read together with Section (e) of the Second Schedule, Part II, Federal Constitution. S/N zFogh1du0CoynKcWKD/vw [20] The relevant provisions of the law relied upon by the Plaintiffs are as follows: Art. 5 (1) No person shall be deprived of his life or personal liberty save in accordance with law. Equality 8. (1) All persons are equal before the law and entitled to the equal protection of the law. ... 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) 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. ... PART II [Article 14(1)(b)] CITIZENSHIP BY OPERATION OF LAW OF PERSONS BORN ON OR AFTER MALAYSIA DAY 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 time of the birth either a citizen or permanently resident in the Federation; and (b) every person born outside the Federation whose father is at the time of the birth a citizen and either was born in the Federation or is at the time of the birth in the service of the Federation or of a State; and (c) every person born outside the Federation whose father is at the time of the birth a citizen and whose birth is, within one year of its occurrence or within such longer period as the Federal Government may in any particular case allow, registered at a consulate of the Federation or, if it S/N zFogh1du0CoynKcWKD/vw occurs in Brunei or in a territory prescribed for this purpose by order of the Yang diPertuan Agong, registered with the Federal Government; and (d) every person born in Singapore of whose parents one at least is at the time of the birth a citizen and who is not born a citizen otherwise than by virtue of this paragraph; and (e) every person born within the Federation who is not born a citizen of any country otherwise than by virtue of this paragraph. ... [21] Additionally, the Court must also look at the Interpretation section under Part III where Section 17 states: 17. For the purposes of Part III of this Constitution references to a person‘s father or to his parent, or to one of his parents, are in relation to a person who is illegitimate to be construed as references to his mother, and accordingly section 19 of this Schedule shall not apply to such a person. [22] The Plaintiffs submitted that the general principles in construing provisions granting citizenship status are now trite and has been conclusively laid out by the Federal Court in 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 (“the CCH Case”). Further, the right to citizenship is a fundamental right which must be construed as widely as possible and that legal provisions which limit those rights must be construed as narrowly as possible. Tengku Maimun CJ said in the CCH Case 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. … [49] We believe that the answer to the question has been discussed an innumerable amount of times with the most recent being CTEB. 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 S/N zFogh1du0CoynKcWKD/vw 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.” [23] The Plaintiffs submitted that P1 and her family had been discriminated against when JPN refused to recognise them as Malaysians despite them being born in this country after Malaysia Day and that they did not hold citizenship of other countries and they had never been out of Malaysia. Moreover, it did not make sense why P1’s uncle (as her mother’s elder brother and both were born in Malaysia) had been issued with an IC. The same was true in the situation of Kamala, the sister of P1 who had an IC (770602-01-XXXX). Unfortunately, Kamala passed away on 16.12.2012 from complications due to diabetes and no evidence/deposition could be taken from her other than her identification documents. To recap, Kamala was born to Kanniappan and Letchimee on 2.6.1977 (refer to Exhibit KK-5 in Encl. 20) and had converted to Islam on 29.11.2011, whereupon her conversion she took on the name Normala Binti Abdullah. Nevertheless, the Court found that by virtue of the fact that Kamala was registered at birth to Letchimee and Kanniapan (who had an IC) and her father’s name in the birth certificate was Kanniappan a/l Parasuraman (IC No. 794XXXX), she was in fact a sibling and elder sister of P1. The Court did not have any information on how she managed to obtain an IC. However, the important fact was that Kamala and P1 were siblings and the latter who was born to the same parents as P1 was acknowledged as a citizen of Malaysia. DNA results [24] In respect of the Defendants assertion that the DNA result did not prove that P1 was the donor of the blood sample, Dr Michael Jeyakumar in Encl. 18 affirmed that in October 2023 when he was informed that P1’s S/N zFogh1du0CoynKcWKD/vw name and the name in the Chemist Report dated 30.12.2019 did not match. He had obtained a blood sample from P1 and brought it to Dr Allia Binti Shahril who was the Pegawai Sains at Jabatan Kimia Malaysia for a DNA profiling. The result confirmed that the DNA obtained from the blood sample of P1 matched the profiled DNA of Kamaladevi a/p Karuppan as stated in the Chemist Report (refer to Exhibits MJ-1 (report dated 30.12.2019) and MJ-2 (report dated 12.11.2023) of Encl. 18). So, this document put to rest the issue of the mistake in P1’s name and they are one and the same person. [25] Nevertheless, the Court noted that there is a disclaimer in the second report that the document is not to be used for determination of a person’s Malaysian citizenship. In my view, regardless of the disclaimer by the JKM, the scientific proof pointed to the fact that Vathumalai and P1 and P3 are blood relations, and this fact could not be denied by the Defendants as they had not offered any other scientific proof to deny it. The disclaimer is probably an attempt to avoid any liability on the part of the JKM since granting of citizenship is under the purview of the JPN. To my mind, the Defendants’ action was unreasonable and defied logic. Hence, paragraph 16.3 of the DG’s response in Encl. had been rebutted by the Plaintiffs. In the absence of any other proof to the contrary, the Court accepted this evidence that Vathumalai and P1 and P3 are blood relations wherein P1 is the niece of Vathumalai, her late mother’s elder brother, and P3 is her son. Family hardships [26] Kannamah A/P Rengan (a niece of P1’s father) had affirmed in Encl. 6 that her late father was a Malaysian citizen. He was the elder brother of Kanniappan a/l Parasuraman, i.e. P1’s father, also a Malaysian citizen. S/N zFogh1du0CoynKcWKD/vw Kannamah stated that she was present at P1’s birth and that P1 was born to Kaniappan and Letchimee on 29.6.1978. She exhibited as KR-2 in Encl. 6 a copy of a Surat Akuan Saksi Semasa Kelahiran Kanak-Kanak regarding the birth of P1 and which was dated 26.8.2020. The Court did not attach much weight to this document because its format is not in accordance with Borang 80 (bagi penganjur yang mengetahui kelahiran kanak-kanak (asal)). It is supposed to be a statutory declaration. [27] Later after the death of P1’s father, Letchimee and her children stayed with Kannamah where she took care of Kannamah’s children when Kannamah went out to work. Kannamah also stated that she taught P1 rubber-tapping skills so that P1 would be able to support her family because P1 had been denied of her right to education by virtue of her illegitimate status. Kannamah witnessed the hardship that Letchimee and her children had to endure because they were unprivileged not to have an IC (despite being born in the country), and therefore they could not go to school for a proper education. Of course, the DG’s affidavit in Encl. 8 could only state that the Plaintiffs were put to strict proof on these averments. Citizenship by Operation of Law [28] The Defendants submitted that by virtue of Section 17 of Part III of the Second Schedule, of the Federal Constitution, the status of the illegitimate child must follow that of the biological mother. Since P1’s mother did not have an IC as proof that she was a Malaysian citizen and her ceremonial marriage was unregistered, therefore, it followed that P1 could not be granted the status of a citizen. The SFC also submitted that there is no provision in the law that citizenship is granted based on the status of the grandmother of an applicant, as in the case of P1 here who claimed that her grandmother was a Malaysian citizen. The case of Lim S/N zFogh1du0CoynKcWKD/vw Jen Hsian & Anor v Ketua Pengarah Jabatan Pendaftaran Negara & Ors [2018] 6 MLJ 548 (CoA) was cited in support of the Defendants’ position. The High Court in that case decided that the appellants failed to prove a prima face case that the second appellant was “not born a citizen of any country” and therefore, the burden of proof had not shifted to the respondents. [29] It is not denied that Section 17 of Part III of the Second Schedule is applicable in this case. However, with respect, this Court opined that that case can be distinguished on the fact because the second appellant’s mother was a Thai national and his parents had never married. This was an undisputed fact and he had in fact acquired his mother’s nationality. The application for citizenship was made under Art.15A of the Federal Constitution which provided for special circumstances for the Government, as it thinks fit, to cause any person under the age of twenty-one years to be registered as a citizen. The appellants had satisfied the requirement of jus soli as he was born in Malaysia after Malaysia Day but as his nationality was Thai, following his mother’s nationality, he was not “not born a citizen of any country”. [30] In the case of Pendaftar Besar Kelahiran dan Kematian, Malaysia v Pang Wee See & Anor (applying on their behalf and as litigation representatives/or Pang Cheng Chuen, a child) [2017] 3 MLJ 308, Abang Iskandar JCA (as His Lordship then was) stated: "[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 S/N zFogh1du0CoynKcWKD/vw 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." [31] In the present case, the Defendants disputed that P1’s mother was a Malaysian, but it had issued her a temporary identification paper pending approval of her citizenship application. The Defendants (through D1-D3) approved P1’s late birth registration (refer to Exhibit KK-10 in Encl. 2) on 26.4.2022 and stated her father’s name as “Maklumat tidak diperolehi” although her mother’s name was stated as “Letchimee”. But the Defendants did not exhibit any proof of the registration form that P1 had filled up for her application, for the Court’s perusal. This Court reasoned that since the Plaintiffs had adduced the official documents obtained from the Defendants as evidence, the evidential burden had passed to the Defendants to disprove the Plaintiffs’ assertions. [32] The burden of proof upon the Plaintiff is not an easy one to be discharged simply by averring that they had been inconvenienced by the whole of the Defendants’ actions in not approving their applications to register their births (and mariages) and that they were discriminated upon: Semenyih Jaya Sdn Bhd v. Pentadbir Tanah Daerah Hulu Langat and another case [2017] 3 MLJ 561. Under the Evidence Act 1950, the relevant provisions are as follows: Burden of proof 101. (1) Whoever desires any court to give judgment as to any legal right or liability, dependent on the existence of facts which he asserts, must prove that those facts exist. (2) When a person is bound to prove the existence of any fact, it is said that the burden of proof lies on that person. S/N zFogh1du0CoynKcWKD/vw 102. On whom burden of proof lies The burden of proof in a suit or proceeding lies on that person who would fail if no evidence at all were given on either side. 103. Burden of proof as to particular fact 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 the proof of that fact shall lie on any particular person. [33] The general principle from the above provisions is that he who asserts, he must prove. I noted Illustration (b) in s.102 of the Evidence Act where it states: (b) A sues B for money due on a bond. The execution of the bond is admitted, but B says that it was obtained by fraud, which A denies. If no evidence were given on either side, A would succeed as the bond is not disputed and the fraud is not proved. Therefore the burden of proof is on B. [34] In the present case, the Defendants are not able to disprove that the Plaintiffs were born in Malaysia after Malaysia Day and the averments of Kannamah and Vathumalai whom are relatives of the Plaintiffs and have known them since birth. It is an undisputed fact that the Plaintiffs have never left the country because they could not apply for Malaysian passports since they do not possess a valid IC in the first place. From the First Generation to the Fifth Generation of this family, it was undisputed that they were born in and have always been in the country. Drawing from the illustration above, bearing in mind that the official documents produced by the Plaintiffs are undisputed by the Defendants, this Court opined that in the absence of any evidence by the Defendants to show that the Plaintiffs did not have any ties with Letchimee, the Court accepted the assertions of Kannamah and Vathumalai to be the truth in regard to the Plaintiffs’ averment that Letchimee was married to Kanniappan via a S/N zFogh1du0CoynKcWKD/vw ceremonial marriage prior to 1982 since P1’s own date of birth was in 1978, and that Selvam, Kamala and P1 were born to that couple (the Second Generation). The Defendants’ own exhibit ZM-10 in Encl 9 showed Kaniappan was a Malaysian citizen with an IC number given. [35] It was submitted by the Plaintiffs that the burden of proof was on the Defendants to prove that P2 and P3 were born citizens of another country, a statement correct in principle and in law. This is consistent with the principle in judicial review cases that the burden shifts to the Defendants once leave is granted. In Dr Mohd Nasir bin Hashim v Menteri Dalam Negeri Malaysia [2006] 6 MLJ 213, Gopal Sri Ram JCA stated: "[2] When the appeal came on for hearing, we called on learned senior federal counsel to argue why the appeal should not be allowed and the appropriate relief be granted. This is in accordance with the usual practice in judicial review cases whenever the cause papers reveal a prima facie infringement of a right, in particular, a constitutionally guaranteed right: this case the freedom of association. It is then for the State (in this case the Minister) to justify what was done or omitted to be done. It is only after such justification is established does the burden shift to the ordinary citizen to establish his or her case. Were it otherwise, the balance of justice would forever be weighted against the citizen and in favour of the Executive. That simply cannot be right as a matter of pure fairness of court procedure." [36] The Court in deciding that Letchimee was married to Kanniappan via a ceremonial marriage prior to 1982, upheld the principles enunciated by the Right Hon. Chief Justice in the CCH Case (supra) that the right to citizenship is a fundamental right which must be construed as widely as possible and that legal provisions which limit those rights must be construed as narrowly as possible. Additionally, the FC stated that “…judicial precedent must play a lesser part when construing constitutional provisions. One cannot afford to be pedantic or cling helplessly to tabulated legalism.” S/N zFogh1du0CoynKcWKD/vw [37] Before I go on to consider the arguments in respect of the non-registration of the marriages of P1’s mother, P1 and P2, I would also address the issue of P1’s grandmother since it was the Defendants’ contention that P1’s citizenship status did not follow that of her maternal grandmother. Now, from Section 17 of Part III of the Second Schedule, that in relation to a person who is illegitimate references to a person’s father or to one of his parents is to be construed as references to his mother, the determination of P1’s status would be done by examining her mother’s (Letchimee) status. As at 25.3.1985, Letchimee had been given by JPN Petaling Jaya a temporary identification document pending the approval of her IC application. I had drawn an inference in favour of the Plaintiffs that as the Defendants could not disprove the Plaintiffs’ assertion that Mukayee, a Malaysian citizen, was the biological mother of Letchimee, this fact has been proved positively by the Plaintiffs. On this point, I refer again to the CCH Case, where the Federal Court held that “(3) … Given that the child was born in the said hospital, surely the respondent had the means to verify from the hospital’s admission records, the identity of the child’s biological mother, if not the father, Therefore, as the record stood, the respondent had not been able to discharge that burden. No affidavit was deposed nor a modicum of evidence adduced to suggest that the narrative provided by the appellants was inherently incredible or even false or untrue. Therefore, the respondent had not been able to discharge that burden (see paras 56 & 58).”. [38] This Court reasoned that the application of Section 17 meant that technically, the Court also had to examine the citizenship of Mukayee in determining the status of Letchimee and P1. This Court found that based on the documentary evidence before it, there was nothing inherently improbable that Mukayee was the biological mother of Letchimee. In fact, S/N zFogh1du0CoynKcWKD/vw looking at both photographs in Exhibits KK-1 and KK3, I found that both women resembled one another very closely! [39] Therefore, the Court holds that both Letchimee and P1 are citizens of Malaysia by operation of law by virtue of Art. 14(1)(b) read together with Section 1(a) of the Second Schedule, Part II, Federal Constitution. The Court agreed with the alternative submissions of the Plaintiffs’ counsel that at least, both women qualified to be declared as citzens by operation of law under Art. 14(1)(b) read together with Section 1(e) of the Second Schedule, Part II, Federal Constitution. Following from this, P2, P3, P4, P5 and P6 also qualified to be declared as citzens by operation of law under Art. 14(1)(b) read together with Section 1(e) of the Second Schedule, Part II, Federal Constitution where it provided that every person born after Malaysia Day within the Federation who is not born a citizen of any country are citizens by operation of law. [40] On the issue of inference that I had drawn in favour of the Plaintiffs, I refer to the case of Lee Seng Kee v Sukatno & Anor [2008] 4 MLJ 716 where the High Court stated: “In Jones v Great Western Railway (1930) 144 LT 194 at p 202 Lord Macmillan explained the meaning of an inference and its effect in law, thus: An inference in the legal sense is a deduction from the evidence and if it is a reasonable deduction it may have the validity of proof. The question therefore arises, what is a reasonable inference? The answer to this question is provided by Lord Wright in Caswell v Powell Duffryn Associates Collieries Ltd [1940] AC 152 at p 169: Inferences must be carefully distinguished from conjecture or speculation. There can be no inference unless there are objective facts from which to infer the other facts which it is sought to establish. In some cases the other facts can be inferred with as much practical certainty as if they had actually been observed. In S/N zFogh1du0CoynKcWKD/vw other cases the inference does not go beyond reasonable probability. But if there are no positive proved facts from which the inference can be made, the method of inference fails and what is left is mere speculation or conjecture. ‘The provisional or evidential burden of proof, as opposed to the legal burden of proof, which had been raised by the state of the evidence, should then have shifted to the defendant driver to rebut the prima facie case, by showing, if he could, that only the leg injury but not the head injury, had been caused by him, since this was a matter especially within his knowledge. We are supported in this by s 106 of the Evidence Act (Revised - 1974) which provides; When any fact is especially within the knowledge of any person, the burden of proving that fact is upon him.”. [Emphasis added] [41] The Defendants relied on older case laws such as Lim Jen Hsian (supra), Neduchelian V Uthiradam v Nurshafiqah Mah Singai Annal & Ors [2005] 2 CLJ 306, Shamala Sathiyaseelan v Dr Jeyaganesh C Mogarajah & Anor [2004] 2 CLJ 416, Foo Toon Aik (Suing On His Own Behalf and as Representative of Foo Shi Wen, Child) v Ketua Pendaftar Kelahiran dan Kematian, Malaysia [2012] 9 MLJ 573, 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 and Than Siew Beng & Anor v Ketua Pengarah Jabatan Pendaftaran Negara & Ors [2017] 5 MLJ 662, to name a few. Nevertheless, I found that these cases could be distinguished on their own peculiar facts. They were either in relation to children who had a foreigner mother (natonality ascertained), or conversion cases and adopted children cases. Whereas the case before this Court concerned 5 generations of the same family with biological ties proven, all born in Malaysia (even the First Generation) and they had never been out of the country. S/N zFogh1du0CoynKcWKD/vw [42] Meanwhile, apart from the CCH Case decided by the Federal Court, this Court also looked at the principles in another Federal Court case, namely CTEB & Anor v KP Pendaftaran Negara Malaysia & Ors [2021] 4 MLJ 236, for guidance. It was a majority of 4-3 decision which dismissed the appeal and affirmed the decisions of the courts below. However, I refer to the dissenting judgments of the CTEB Case because the facts of that case differed from the present case wherein the child in that case was born to a Filipino mother in the Philipines, unlike the facts of the present case. At the time of CTEB’s birth, his parents were not married, but five months later they legally registered their marriage in Malaysia and since then the three of them made Malaysia their home. In late 2016, the appellants applied for a declaration that CTEB was a Malaysian citizen by operation of law under Art 14(1)(b) of the Federal Constitution. The High Court dismissed the application on the ground that CTEB had not met the criteria stipulated under that provision read together with Section 1(b) of Part II of the Second Schedule of the Federal Constitution and Section 17 of Part III of that Schedule. The court held that since CTEB was illegitimate when he was born: (a) he could not automatically acquire his father’s Malaysian citizenship because Section 17 construed the word ‘father’ in Section 1(b) in relation to an illegitimate child as a reference to his mother; and (b) CTEB’s subsequent legitimisation of his birth under the Legitimacy Act 1961 (‘the Legitimacy Act’) by reason of his parents’ marriage was irrelevant and did not give him the right to acquire citizenship by operation of law. This was not only because the Legitimacy Act did not erase his illegitimacy at birth but also because matters concerning citizenship were fully provided for and governed by the provisions of the Federal Constitution itself without the necessity to refer to or seek the aid of any other laws. S/N zFogh1du0CoynKcWKD/vw [43] The dissenting minority judgments in the CTEB case which are relevant are as follows: (1) (per Tengku Maimun Chief Justice, dissenting) There was no nexus or connection to any sound objective or policy to deny a person of citizenship by operation of law simply because that person’s parents were not married and in spite of that person being able to prove his biological nexus to his father (or even mother). This defied the very notion of jus sanguinis which required a ‘blood relation’ (see para 94). (2) (per Tengku Maimun Chief Justice, dissenting) Looking at the citizenship scheme and structure of the FC as a whole, the framers of the FC intended the conferral of citizenship to be crafted as widely as possible to enable all relevant persons at the time of the formation of Malaya, and later Malaysia, the right to be conferred citizenship by operation of law. The historical records connected with the drafting and evolution of the FC suggested that s 17 of Part III was inserted to ensure, on the basis of jus sanguinis, that if an illegitimate child was born outside the Federation and the identity of his father was unknown, the mother being a citizen, or later becoming a citizen, was sufficient enough reason to confer citizenship on that child to prevent him from becoming stateless. It was only in such cases that any reference to such person’s father was taken to mean a reference to his mother. Part III, which contained supplementary provisions relating to citizenship and included s 17, could not be read as qualifying the application of Part II. The phrase ‘Subject to the provisions of Part III of this Constitution’ in s 1 of Part II was not sufficient to conclude that s 17 was intended to operate as an overriding provision (see paras 56–60 & 98–97). (3) (per Tengku Maimun Chief Justice, dissenting) If s 17 was read as qualifying the application of s 1(b), it would cause the following instances of discrimination which would not pass muster under the reasonable classification test implied in art 8(1) of the FC: (a) that despite it being known who the biological father of an illegitimate child was, the father would nevertheless be deemed non-existent and the fact of paternity ignored; (b) the jus sanguinis principle would effectively be rendered otiose for illegitimate children even though it could be proven that the father of the illegitimate child was a Malaysian citizen; (c) Muslims and non-Muslims would be treated differently because ‘legitimate’ and ‘illegitimate’ bore different meanings under Islamic law such that while a non-Muslim child born illegitimate but who was subsequently legitimated would not be considered legitimate for the purposes of citizenship, a Muslim child, who was otherwise born illegitimate, would for the purposes of the citizenship be considered legitimate; and (d) the father and the mother of the child would be treated differently in express violation of art 8(2) of the FC which provided, inter alia, that no law (which included the FC) shall discriminate against citizens on the ground of gender (see paras 84–93). S/N zFogh1du0CoynKcWKD/vw (4) (per Tengku Maimun Chief Justice, dissenting) Having regard to the historical and purposive canons of construction, the word ‘father’ in s 1(b) ought to be construed as meaning ‘biological father’. Thus, the legitimacy status of any person claiming citizenship under art 14(1)(b) read together with Part II was an irrelevant factor in cases where paternity was known and the said biological father was a citizen of Malaysia and had met the rest of the requirements of s 1(b). In the instant case, since it was proven that CWB was CTEB’s biological father and he was a citizen of Malaysia, CTEB had met all the requirements to acquire citizenship by [2021] 4 MLJ 236 at 239operation of law (see paras 76 & 100). ... (15) (per Nallini Pathmanathan FCJ, dissenting) The doctrine of jus sanguinis, or transmission of citizenship by descent, underlay the basis of art 14(1)(b) vide s 1(b). Citizenship by operation of law required a blood relationship between father and child. Where such a blood relationship subsisted, citizenship could not be denied simply because the parents were not married at the time of the child’s birth. Section 17 could not obliterate the fundamental basis of transmission of citizenship by reason of the blood-tie. It did not envisage depriving the child of a Malaysian father of citizenship simply on the ground of the lack of a legally recognised marriage between the parents (see paras 245 & 247). [44] Regardless, the CTEB Case was decided a year before the CCH Case and therefore, making the CCH Case the latest decision of the FC on the issue of citizenship by operation of law: Dalip Bhagwan Singh v PP [1997] 4 CLJ 645. The FC allowed the appeal and set aside the decisions of the courts below which had followed the majority decision in the CTEB Case. It is now settled law as decided in the CCH Case that: “[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.” … [72] In this regard and with respect, we are minded to observe that citizenship by operation of law is a right — a fundamental and constitutional right. It leaves S/N zFogh1du0CoynKcWKD/vw absolutely no room for the exercise of subjective notions or presuppositions on what citizenship is. The words citizenship ‘by operation of law’ could not be any clearer, and there is no room whatsoever for discretion. The FC reigns supreme at all times and the respondent and all related bodies are bound to comply with its dictates. [Emphasis added] [45] Since the aim of Art.14(1)(b) of the Federal Constitution read together with Sections 1(a) – (e), Second Schedule, Part II of the Federal Constitution is to weed out statelessness, this Court opined that citizenship by operation of law is a fundamental and constitutional right and the Defendants ought to give effect to the provisions of Sections 1(a) and /or (e), Second Schedule, Part II in the present case. The documentary evidence adduced by the Plaintiffs, as I found, were not inherently improbable, and taken in their totality had formed a solid basis for the Plaintiffs’ claims to citizenship by operation of law. More so when the Defendants could not disprove the Plaintiffs’ assertions on their familial and biological ties. In Abdul Hamim bin Abd Hamid v Jabatan Pendaftaran Negara Malaysia & Anor [2022] MLJU 2557 it was stated that that when one party makes a positive assertion upon a material issue, the absence of his opponent’s assertion to contradict must be treated as an admission to the facts so asserted. I also refer to the case of Ng Hee Thong v Public Bank Berhad [1995] 1 CLJ 609 on the same issue of failure to contradict an affidavit by an opponent. There was also no evidence to suggest that the registrations of the Plaintiffs’ births were denied due to security threat or reason. Non-registration of marriages [46] The relevant provisions under the 1976 Act are: S/N zFogh1du0CoynKcWKD/vw Subsisting valid marriages deemed to be registered under this Act and dissoluble only under this Act 4 (1) Nothing in this Act shall affect the validity of any marriage solemnized under any law, religion, custom or usage prior to the appointed date. (2) Such marriage, if valid under the law, religion, custom or usage under which it was solemnized, shall be deemed to be registered under this Act. (3) Every such marriage, unless void under the law, religion, custom or usage under which it was solemnized, shall continue until dissolved-- b. by the death of one of the parties; b. by order of a court of competent jurisdiction; or c. by a decree of nullity made by a court of competent jurisdiction. 27. Registration The marriage of every person ordinarily resident in Malaysia and of every person resident abroad who is a citizen of or domiciled in Malaysia after the appointed date shall be registered pursuant to this Act. Voluntary registration of marriages previously solemnized under religion or custom 33.(1) Notwithstanding section 4, the parties to any marriage solemnized under any law, religion, custom or usage prior to the appointed date may, if the marriage has not been registered, apply at any time to a Registrar in the prescribed form for the registration of the marriage. (2) The Registrar may require the parties to the marriage to appear before him and to produce such evidence of the marriage, either oral or documentary, as he may require and to furnish such other particulars as may be required by him. (3) The Registrar may on being satisfied of the truth of the statements contained in the application register the marriage by entering the particulars thereof in the marriage register prescribed for this purpose. (4) The entry of the marriage in the marriage register shall be signed by the Registrar making the entry and by both the parties to the marriage, if available, otherwise, by whichever party shall appear before the Registrar for effecting registration of the marriage. S/N zFogh1du0CoynKcWKD/vw (5) Upon the registration of the marriage, the Registrar shall deliver the triplicate copy of the register to the parties to the marriage, the original to the Registrar General and the duplicate to the Superintendent Registrar. (6) The Registrar shall not register a marriage under this section if he is satisfied that the marriage is void under this Act. 34. Legal effect of registration Nothing in this Act or the rules made thereunder shall be construed to render valid or invalid any marriage which otherwise is invalid or valid merely by reason of its having been or not having been registered. [47] I noted that in this regard, the date of the custom marriage ceremony of P1’s parents could not be proved by any document except that it must have been at least prior to 1976 (Selvam’s date of birth is unknown and Kamala was born in 1977, a year before P1’s birth). The undisputed fact was that the ceremonial marriage of P1’s parents took place pre-1982 when s.4 of the 1976 Act had not come into force. The Defendants’ own exhibit ZM-10 in Encl 9 showed Kaniappan was a Malaysian citizen with an IC number given. The Court opined that at the time of the marriage, when P1’s father sought to register his marriage to Letchimee, the Defendants should not have refused it merely because she did not possess an IC. [48] The Court agreed with the submissions of the Plaintiffs that an important ancillary issue was the right of P1 and P2 to have their marriage solemnised and registered under the 1976 Act. The refusal of 3rd Defendant (D3) and JPN to solemnise and register the marriage of a stateless mother to a Malaysian citizen father prevented the child from inheriting the citizenship of the father through the operation of Section 17 in Part III of the Second Schedule. It was submitted further that the refusal by D3 had caused intergenerational statelessness as can be seen from S/N zFogh1du0CoynKcWKD/vw P1’s mother to P1 to P2 and P3, and subsequently P2 to P4 to P6. S.27 of the 1976 Act provides that “The marriage of every person ordinarily resident in Malaysia and of every person resident abroad who is a citizen of or domiciled in Malaysia after the appointed date shall be registered pursuant to this Act.”. [49] It was contended further that every person has the right to have their marriage solemnised and registered under the 1976 Act and it is not limited to citizens as s.31 provides for registration of the marriage of non-citizens (domiciled in Malaysia). Hence, the 1976 Act does not impose any requirement that a national registration identification card is required before a person can register his marriage. I refer to paragraphs 52-53 of the Plaintiffs’ submissions which was as follows: “52. Unless it is a marriage that is void or prohibited under the LRA, the Registrar must have the marriage solemnised under Section 22 to 24 and thereafter registered under Section 25 of the LRA. There is nothing in Section 22 to 24 which prohibits the solemnisation and registration of a stateless person. There is also nothing in the LRA which requires a person to have first be in issued an identity card before his marriage can be solemnised or registered. As submitted above, Section 27 of the LRA gives the right to registration of a marriage to all persons, regardless of nationality or the lack thereof, regardless of identity card or lack thereof. 53. In the Government’s own internal circular entitled ‘Arahan Jabatan Pendaftaran Negara Bil. 6/2021’, the Government admitted that pursuant to the LRA, there was no requirement to submit identification documents to register a marriage. The document states that “Berdasarkan Akta 164, dokumen pengenalan diri tidak dinyatakan sebagai satu syarat untuk mendaftarkan perkahwinan.”, S/N zFogh1du0CoynKcWKD/vw [50] The Defendants did not deny this submission and I am inclined to agree with the Plaintiffs that upon perusal of ss.22 – 25, nothing in there prohibited the solemnisation and registration of a stateless person. There is also nothing in the 1976 Act which requires firstly that a person have to be issued an IC before his marriage can be solemnised or registered. Pursuant thereto, D3 should not have denied P1 and P2 from solemnising and registering their respective marriages to their Malaysian husband on the basis that P1 and P2 did not have an IC. The Court opined further that if the marriages of P1’s mother to her Malaysian husband been solemnised and registered by D3, P2 and P3 would have been a Malaysian citizen and recognised as such from birth pursuant to Section 1(a) in Part II of the Second Schedule. The same would be true for P4 to P6 had their mother P2’s marriage to her Malaysian husband been solemnised and registered by D3. But this all started from P1’s mother whose birth registration and marriage were not registered, most likely due to illiteracy and lack of awareness and understanding of the law. [51] In the CTEB Case, Rohana Yusuf, PCA (as her Ladyship then was) held that: “(6) Citizenship by operation of law was acquired automatically at birth, either within or outside Malaysia, subject to certain qualifications, without requiring any application to be made. Those who acquired this category of citizenship were those who, by virtue of the FC, were citizens without volition on their part, without a choice in the matter by the government and without oath or (in most cases) formality. One either fit the given criteria under the FC or one did not. The criteria were clearly stipulated in the FC and it did not require any exercise of discretion by the authority. It was a situation where at birth, the person’s citizenship was determined. It was a matter of birthright. In practical terms, a birth certificate would be issued right away upon registration of birth. Citizenship by way of registration and naturalisation, on the other hand, required an application to be made to the Federal Government upon certain conditions being fulfilled (see paras 128–130 & 161–162). [Emphasis added] S/N zFogh1du0CoynKcWKD/vw [52] In the present case, the late registration of the birth of P1’s mother, then P1 and subsequently her children P2 and P3 led to the non-registration of P1 and P2’s marriages and thus, resulted in the generational statelessness of their respective offsprings, despite them being born in this country and had never been granted citizenship of any other country(s). Tengku Maimun CJ stated in the CTEB Case that- "[35] The ultimate issue in this appeal relates to the interpretation of art 14(l)(b) of the FC and Parts II and III as regards the first appellant's right to citizenship by operation of law. It is my view that as the right of any person to citizenship comprises the right to liberty, the provisions of art 5(1) of the FC are relevant. And, since the issue concerns the right of a person based on the distinction of the citizenship status of their parents or in any case, the distinction between the right of illegitimate and legitimate children to citizenship, the right of equality before the law and equal protection of the law under art 8(1) is also materially relevant." [Emphasis added] [53] Following the above passage, I agreed with the submissions of the Plaintiffs that the Defendants’ denial and continued denial of the Plaintiffs’ application for a Malaysian citizenship amounted to a violation of the Plaintiffs’ right to life under Art. 5 of the Federal Constitution as citizenship is a fundamental and protected right. Further, the Defendants’ denial and continued denial of the solemnisation and registration of P1’s and P2’s respective marriages to Malaysian citizens on the basis that they do not possess an IC when the 1976 Act does not have such requirement has led the Plaintiffs to a vicious cycle of hardships (beginning from no access to free education) and inequality of treatment and protection of the law as enshrined under Art. 8(1) of the Federal Constitution. In the FC case of Maria Chin Abdullah v Ketua Pengarah Imigresen & Anor [2021] 1 MLJ 750, Nallini Pathmanathan JCA (as her Ladyship then was) stated: S/N zFogh1du0CoynKcWKD/vw “THE CONSTRUCTION AFFORDED TO ART 5(1) OF THE FC [397] Article 5(1) of the FC more particularly ‘life’ was, in the course of the evolution of our constitutional law, construed in a limited sense, so as not to include livelihood. But the narrowness of this construction was put to rest by the generous construction afforded to this article in, inter alia, Tan Tek Seng v Suruhanjaya Perkhidmatan Pendidikan & Anor [1996] 1 MLJ 261 per Gopal Sri Ram JCA (later FCJ) where the right to education was accepted as a part of the right to life, and again the decision of the Court of Appeal in Sugumar Balakrishnan per Gopal Sri Ram JCA (later FCJ) where the right to earn a livelihood and thereby the right to travel to, and remain at the place of work, was further recognized as a right to livelihood falling within the purview of art 5(1) of the FC. A series of subsequent cases, including the right to a livelihood and the right to a fair trial, have all contributed to building up on the body of rights encompassed within the few precious words of art 5(1) of the FC, namely the ‘right to life’. … [399] However, the move away from a restricted approach to the construction of art 5(1) of the FC represents one of the most important developments in constitutional law in our legal history. The rectitude of such a construction cannot be denied because the right to life means the right to live with basic human dignity, which is the purport of the Federal Constitution particularly in relation to fundamental liberties. [Emphasis added] [54] The Court refers to the Defendants’s assertion that despite not being recognised as citizens and without the privileges accorded to Malaysians, they can still live their lives in Malaysia. This statement is overly simplistic and could be seen as callousness and lack of sympathy for the plight of the Plaintiffs, that is not in line with the Malaysia Madani concept which the current Government has implemented which aims are as follows (as stated in the malaysiamadani.gov.my website): “Malaysia MADANI dirangka sebagai ikhtiar untuk memetakan strategi tata keloka dan pentadbiran negara secara berkesan, menekankan kepada pemerkasaan ekonomi dan budaya, yang berteraskan nilai, etika atau akhlak bertunjangkan empat (4) Teras Strategik Utama iaitu: I. Membina Semula Ekonomi S/N zFogh1du0CoynKcWKD/vw II. Menjamin Kesejahteraan Insan III. Reformasi Institusi Demokrasi dan Perundangan IV. IV. Mewujudkan Pentadbiran Beramanah”. [55] Without basic education, how can an individual hope to have any semblance of a comfortable life, unless one is born with a silver spoon in his mouth? The Court opined that granting citizenship to an individual would come under the second “Teras Strategik Utama” of the Malaysia Madani concept and this would in turn enable the individual to lead a better life, in line with the Government’s aim of guaranteeing a person’s well-being. Doors of opportunities would open and the individual would be on a level playing field with all other qualified Malaysians to enjoy a better life in the country rather than merely existing in poverty, struggling with hardships and leading a depressing life. The situation of generational statelessness has to be stopped for this poor family, once and for all, as otherwise, P2’s future grandchildren and their children and grandchildren would be trapped in the same legal quagmire. [56] From the facts, this Court opined that the Defendants were acting in accordance with their internal guidelines (which may need some updating to be in line with the current interpretation of the laws in regard to citizenship), and may not necessarily had been done with any mala fide intention against the Plaintiffs. Nevertheless, a less drastic measure then would have been to allow the Plaintiffs to register their births belatedly as provided for under s.12 of the (Pendaftaran Lewat Kelahiran) of Act 299 and which they have done so only since 2009 onwards, and for the Plaintiffs to be fined in respect of the late registration as provided for under the law. S/N zFogh1du0CoynKcWKD/vw [57] Therefore, the Court allowed most of the reliefs that were sought by the Plaintiffs as follows: i. Suatu deklarasi bahawa Plaintif-Plaintif merupakan warganegara Malaysia melalui perlaksanaan undang-undang selaras menurut Perkara 14(1)(b) yang dibaca bersama dengan Seksyen 1(a)

Schedule

Jadual Kedua, Bahagian II, Perlembagaan Persekutuan; ii. Suatu deklarasi bahawa Plaintif-Plaintif berhak untuk diisukan dengan surat kelahiran dengan status “WARGANEGARA”; iii Suatu deklarasi bahawa Plaintif-Plaintif berhak untuk diisukan kad pengenalan selaras dengan Peraturan-Peraturan Pendaftaran Negara 1990 dengan status “WARGANEGARA”; iv. Suatu deklarasi bahawa Plaintif-Plaintif berhak untuk didaftarkan nama ke dalam daftar sepertimana di bawah Seksyen 4 Akta Pendaftaran Negara 1959, dan PeraturanPeraturan 4, 11 dan 14 Peraturan-Peraturan Pendaftaran Negara 1990; v. Suatu deklarasi bahawa Plaintif-Plaintif Pertama dan Ke-2 berhak untuk mendaftarkan perkahwinan masing-masing berdasarkan Akta Membaharui Undang-Undang (Perkahwinan dan Penceraian) 1976 di Jabatan Pendaftaran Negara; vi. Sebarang arahan, perintah atau writ untuk penguatkuasaan hak yang diberikan oleh Bahagian II, Perlembagaan Persekutuan, atau mana-mana daripadanya, atau untuk memberikan keadilan penuh kepada subjek perkara tindakan ini; dan vii. Tiada perintah mengenai kos. [58] The Court did not allow prayer No. 7 of Encl. 1 which was a declaration that the Defendants had violated the provisions of Art. 8(1) against the Plaintiffs as this averment had not been proved. S/N zFogh1du0CoynKcWKD/vw [59] The Court did not pronounce prayer No. 2 which states that “Secara alternatif, suatu deklarasi bahawa Plaintif-Plaintif merupakan warganegara Malaysia melalui perlaksanaan undang-undang selaras dengan Perkara 14(1)(b) yang dibaca bersama dengan Seksyen 1(e)

Schedule

Jadual Kedua, Bahagian II, Perlembagaan Persekutuan;”. This is because the Court has found that the Plaintiffs have satisfied the requirements of jus soli and jus sanguinis under the provision of Art. 14(1)(b) read together with Section 1(a), Second Schedule of Part II of the Federal Constitution. CONCLUSION [60] Premised upon the above considerations, this Court found that the Plaintiffs have proved on a balance of probabilities that they have a right to be declared Malaysians and granted citizenship of Malaysia by operation of law in accordance with Art. 14(1)(b) read together with Section 1(a) of the Second Schedule, Part II, Federal Constitution. Therefore, Encl. 1 was partly allowed with no order as to costs. Dated 7 July 2024 Sgd. Noor Ruwena Binti Md. Nurdin Judicial Commissioner High Court of Malaya, Taiping S/N zFogh1du0CoynKcWKD/vw For the Plaintiffs New Sin Yew with Shugan Raman Shugan & Co., Kuala Lumpur. For the Defendants SFC Norazlinawati Binti Mohd Arshad Pejabat Penasihat Undang-Undang Negeri Perak. S/N zFogh1du0CoynKcWKD/vw