Ketua Pengarah Jabatan Pendaftaran Negara v Tan Jun Yan (W-01(A)-251-05/2023)

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1 DALAM MAHKAMAH RAYUAN MALAYSIA (BIDANG KUASA RAYUAN) RAYUAN SIVIL NO: W-01(A)-251-05/2023

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Jadual Kedua Perlembagaan Persekutuan S/N hwuzNq2MUyD4gbEua8UrQ Antara Tan Jun Yan ... Plaintif (Sijil Kelahiran No. Daftar: 00016755, No. Siri: 000745XA) Dan 1. Ketua Pengarah Pendaftaran Negara 2. Menteri Dalam Negeri 3. Kerajaan Malaysia … Defendan-Defendan] CORUM: AZIZAH BINTI NAWAWI, CJSS MOHD NAZLAN BIN MOHD GHAZALI, JCA AZHAHARI KAMAL BIN RAMLI, JCA JUDGMENT Introduction [1] There are two (2) appeals before this Court against the decision of the learned Judge delivered on 17 April 2023. Appeal 251 was filed by Ketua Pengarah Pendaftaran Negara, Menteri Dalam Negeri and Kerajaan Malaysia, who were the Defendants at the High Court (“defendants”). S/N hwuzNq2MUyD4gbEua8UrQ [2] Appeal 254 was filed by Tan Jun Yan who was the Plaintiff at the High Court (“plaintiff”). Salient Facts [3] On 23 October 2000, the plaintiff’s adoptive father, Tan Ghee Cheong (“GC Tan”), applied for the issuance of the plaintiff’s birth certificate at JPN. [4] GC Tan had declared that he and Wong Kwai Fong (“KF Wong”) were the biological parents of the plaintiff, and based on this information, Jabatan Pendaftaran Negara (“JPN”) had issued the first birth certificate, which stated the plaintiff’s citizenship status as “Warganegara”. [5] On 23 October 2012, GC Tan applied for a National Registration Identity Card (MyKad) for the plaintiff. [6] However, JPN became suspicious of the application because they observed no facial similarities between the plaintiff and his purported biological parents, GC Tan and KF Wong. [7] JPN then conducted an investigation into the matter, including recording statements from GC Tan and KF Wong. During these investigations, both GC Tan and KF Wong admitted that the plaintiff was not their biological child and that the plaintiff had been adopted after being found abandoned at a temple. S/N hwuzNq2MUyD4gbEua8UrQ [8] Following such admissions by GC Tan and KF Wong, the NRD then revoked the plaintiff’s identity card application. Subsequently, GC Tan submitted an application to amend the plaintiff’s Birth Certificate to correct the particulars of the plaintiff’s parents. [9] Thereafter JPN issued a second birth certificate for the plaintiff, correcting the information about his biological parents and the particulars on his citizenship is changed to “Belum Ditentukan” (Yet to be determined). [10] On 20 January 2014, the plaintiff was adopted by GC Tan and KF Wong under the Adoption Act 1952 via an Adoption Order dated 20 January 2014. After the issuance of the Adoption Order, JPN issued a third birth certificate, which classified the citizenship status as “Bukan Warganegara” (Non-citizen). This classification was based on the fact that GC Tan and KF Wong could not provide details about the citizenship or marital status of the plaintiff’s biological parents. [11] Hence, the plaintiffs filed this application in court seeking a declaration that he is a citizen by operation of law. The plaintiff contends that he is entitled to Malaysian citizenship by operation of law pursuant to Article 14(1)(b) of the Federal Constitution read with Section 1(a) read with section 19B and/or 1(e) read with Section 2(3) of the Second Schedule. S/N hwuzNq2MUyD4gbEua8UrQ Decision of the High Court Judge [12] On the application of Article 14(1)(b) of the Federal Constitution read with Section 1(a) and Section 19B of the Second Schedule, the learned Judge made a finding that the plaintiff had failed to establish that he was "found exposed" at a specific location, as required under Section 19B. Therefore, the presumption of citizenship under this section could not be invoked. [13] On the application of Article 14(1)(b) of the Federal Constitution read with Section 1(e) and Section 2(3) of the Second Schedule, the learned Judge held that the plaintiff has met the conditions for citizenship under this section, that he was born after Malaysia Day, born within the Federation of Malaysia and that he was not born a citizen of any other country. [14] The learned Judge had accepted the plaintiff's positive assertions that he had never acquired citizenship of any other country, which the learned Judge found that the defendants had failed to rebut. [15] The Court then declared that the plaintiff is a citizen of Malaysia by operation of law under Article 14(1)(b) read with Section 1(e) and Section 2(3) of the Second Schedule of the Federal Constitution. S/N hwuzNq2MUyD4gbEua8UrQ Our Decision (i) The Plaintiffs’ Appeal [16] In Appeal 254, the plaintiff is appealing against the decision of the learned Judge who had dismissed his application for citizenship under Article 14(1)(b) of the Federal Constitution read with Section 1(a) and section 19B of the Second Schedule. [17] Article 14(1)(b) of the Federal Constitution, read with Section 1(a) of Part II of the Second Schedule, provides that for the acquisition of citizenship by operation of law, the following three conditions must be satisfied: (i) the person was born on or after Malaysia Day; (ii) the person was born within the Federation; and (iii) at the time of birth, at least one parent was a Malaysian citizen or permanent resident. [18] Section 19B of Part III of the Second Schedule further provides that a new born child who was “found exposed” shall be presumed, until the contrary is shown, to have been born at the place of finding to a mother permanently resident there. [19] The Federal Court in CCH & Anor v Pendaftar Besar bagi Kelahiran dan Kematian, Malaysia [2022] 1 MLJ 71, has clarified the meaning of "found exposed" in section 19B to mean: S/N hwuzNq2MUyD4gbEua8UrQ “The term "found exposed" is interpreted broadly to include abandoned new born left in places such as hospitals, temples, baby hatches, public toilets, etc.” [20] The Federal Court in CCH (supra) interpreted “found exposed” broadly to cover abandoned new born, including those left at their place of birth, in order to give effect to the constitutional objective of preventing statelessness. The presumption under Section 19B carries two implications: (i) the child is presumed born to a mother permanently resident at the place of finding (jus sanguinis); and (ii) the date of the finding is treated as the date of birth. [21] However, the factual matrix before this Court is materially different from CCH case. The evidence from the plaintiff’s adoptive parents reveals significant gaps. Although they state that the plaintiff was handed to them by an elderly lady at a Chinese temple in Klang and that the child had been abandoned, neither parent could identify the temple, nor was any information provided as to how the plaintiff came to be there. There is no account of the circumstances between the plaintiff’s birth at the clinic (Klinik Asia & Rumah Bersalin) and his subsequent presence at the temple. It is therefore unclear whether the child was abandoned, whether at the clinic or at the temple, or elsewhere. [22] Indeed, the learned Judge made a finding of fact that there was a material break in the chain of events between the plaintiff’s birth at Klinik Asia & Rumah Bersalin and his subsequent presence at the temple. In particular, there was no clear evidence as to: S/N hwuzNq2MUyD4gbEua8UrQ (a) who allegedly brought the plaintiff to the temple; (b) who had physically handed the plaintiff over and to whom; and (c) whether the plaintiff was in fact abandoned within the temple compound itself or merely entrusted to a member of the temple community. [23] The learned Judge findings are as follows: “[21] Let us now examine the factual background. In his recorded statement to the JPN on 12.11.2012, Tan asserted as follows: (a) He did not know the birthplace of the plaintiff. (b) An unknown elderly Chinese lady handed the plaintiff to him at a Chinese Temple in Klang. (c) At the time the plaintiff was handed over to him by the elderly lady, the plaintiff was about a week old. In her recorded statement to the JPN on 12.11.2012, Wong asserted as follows: (a) She was unaware of the place of birth of the plaintiff. (b) The plaintiff was handed to her and her husband by an elderly lady at a Chinese Temple in Klang. Wong could not recall the name of the temple. S/N hwuzNq2MUyD4gbEua8UrQ (c) The plaintiff was about three days old at the material time. [22] In para 4.3 of AIS-3, Tan and Wong affirmed that they went to see the plaintiff at the Chinese temple in Klang with the intention of adopting him. They were informed by the elderly Chinese lady working in the temple that the plaintiff was abandoned there. According to Tan and Wong, the plaintiff’s biological parents were not known to the community in the temple and them. [23] I would like to highlight one crucial point. It is this. Both AIS-2 and AIS-3 do not narrate what happened to the plaintiff between his birth at the said Clinic and his presence in the temple. Who brought him to the temple? Who handed the plaintiff to the temple? Was he abandoned in the temple’s compound? Was he given to any of the community members at the temple? How did the elderly lady get hold of the plaintiff?” [24] The learned Judge then held that these gaps in the evidence rendered the circumstances of the alleged abandonment uncertain. [25] In contrast to CCH, where the facts surrounding the abandonment were fully established, we are of the considered opinion and we agree with the learned Judge that the present case lacks any coherent chain of evidence capable of demonstrating that the plaintiff was “found exposed” within the meaning of Section 19B. In the absence of proof of the place where the plaintiff was found, the statutory presumption cannot be invoked. S/N hwuzNq2MUyD4gbEua8UrQ [26] Accordingly, we are of the considered opinion that the learned Judge did not make any error in his finding that the plaintiff has failed to satisfy the essential prerequisite under Section 19B. Without this presumption, the requirements of Section 1(a) are not met, and the burden does not shift to the defendants. The requirement for citizenship under Section 1(a) is not satisfied and was correctly dismissed by the learned Judge. [27] The next issue is whether the Plaintiff’s assertion that the word “parents” in Section 1(a), Part II, Second Schedule of the Federal Constitution includes adoptive parents, namely GC Tan and KF Wong, based on Sections 9 and 25A of the Adoption Act 1952. [28] However based on this Court’s decision in Pendaftar Besar Kelahiran dan Kematian, Malaysia v Pang Wee See & Anor (applying on their behalf and as litigation representatives for Pang Cheng Chuen, a child) [2017] 3 MLJ 308, Sections 9 and 25A of the Adoption Act 1952 does not confer the adoptive parents’ citizenship status on the adopted child. This is because the adoptive parents are not the child’s actual biological parents. This Court in Phang Wee See (supra) held as follows: “[31] What had become clear to us had been that one of the key ingredients stipulated in art 14(1)(b) read together with s 1(a) of Part II of the Second Schedule of the Federal Constitution, is that the person seeking to be a citizen of Malaysia via this specific constitutional provision must show proof that when he was born in this country, one of his parents must either be a citizen of Malaysia S/N hwuzNq2MUyD4gbEua8UrQ or was permanently resident in this country. The phrase that is employed under that provision reads, ‘is at the time of the birth’. To our minds, that phrase has categorically made a reference to the biological parent of the person, who must either be a Malaysian citizen or a person who is permanently resident in Malaysia. By virtue of this phrase, any person intending to claim citizenship by operation of law under the above stated constitutional provision, it is not sufficient that he or she was born in Malaysia. He must be a person, whose either parent was a Malaysian citizen or a Malaysian permanent resident, when he was born in Malaysia. That provision does not contain any reference to an adoptive parent, albeit a Malaysian adoptive parent.” [29] We are therefore of the considered opinion that the phrase “at the time of birth” refers to the actual biological parents, not the parents who are deemed to be the child’s parents under the Adoption Act 1952. If the Federal Constitution intended for an adopted child of non-citizen or permanent-resident adoptive parents to automatically gain Malaysian citizenship upon adoption, it would have stated so clearly. [30] Added to that, since the Adoption Act 1952 is only a subsidiary legislation to the Federal Constitution, it cannot be interpreted to fill what may be perceived as a gap in the Constitution. Thus, the Adoption Act 1952 cannot, even indirectly, be taken to confer citizenship on an adopted child by virtue of the adoption order or the issuance of a new birth certificate by the appellant. As such, the Adoption Act 1952 is not a legally competent instrument to confer S/N hwuzNq2MUyD4gbEua8UrQ citizenship on an adopted child under Article 14(1)(b) read with Section 1(a), Part II, Second Schedule of the Federal Constitution. [31] In fact, the Federal Court in CTEB & Anor v Ketua Pengarah Pendaftaran Negara, Malaysia & Ors [2021] 4 MLJ 236 had also affirmed this legal position as follows: “[172] The Malaysian cases discussed above are also clear and unequivocal that because citizenship by operation of law is determined at birth, other laws which retrospectively qualify a person such as Legitimacy Act or Adoption Act cannot be used to construe the qualification of that person.” [32] Based on the reasons enumerated above, we find no merit in the plaintiff’s appeal and the plaintiff’s appeal in Appeal No. 54 is dismissed with no order as to costs. (ii) Defendant’s appeal [33] The learned Judge had declared that the plaintiff is a citizen of Malaysia by operation of law under Article 14(1)(b) read with Section 1(e) and Section 2(3) of the Second Schedule of the Federal Constitution. [34] Citizenship by operation of law is provided under Article 14 of the Federal Constitution. Article 14 reads: S/N hwuzNq2MUyD4gbEua8UrQ “Citizenship by operation of law 14 (1) Subject to the provisions of this Part, the following persons are citizens by operation of law, that is to say: (a) every person born before Malaysia Day who is a citizen of the Federation by virtue of the provisions contained in Part 1 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.” [35] The relevant clause in this appeal is clause 1(b) of Article 14. Clause 1(b) must be read with Part II of the Second Schedule. Part II of the Second Schedule reads: “Part II [Article 14(1)(b)] CITIENSHIP BY OPERATION OF LAW OF PERONS 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 S/N hwuzNq2MUyD4gbEua8UrQ (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 occurs in Brunei or in a territory prescribed for this purpose by order of the Yang di-Pertuan 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.” [36] It must be noted that article 14 read with section 1, Part II of the Second Schedule of the Federal Constitution lays down the requisites of a citizenship by operation of law in very clear term. A person who meets all the criteria therein would qualify to become a citizen under that provision. Once the requisite conditions under these provisions are met, it is automatic that a person is a citizen by operation of law. S/N hwuzNq2MUyD4gbEua8UrQ [37] To fall within Section 1(e), three prerequisites must be satisfied: (i) the plaintiff was born on or after Malaysia Day; (ii) he was born within the Federation; and (iii) he was not born a citizen of any country. [38] The plaintiff has affirmed that he was born in Malaysia, had never acquired the citizenship of any other country, and had resided in Malaysia for his entire life without having travelled abroad or held any foreign passport. [39] The learned Judge accepted the plaintiffs’ positive assertion and said that the defendants have failed to adduce any evidence to rebut the plaintiff’s claim. Accordingly, the learned Judge held that the plaintiff had satisfied the conditions under section 1(e) and declared him a Malaysian citizen by operation of law. [40] Before this Court, the plaintiff submits that the requirement of “not being born a citizen of any country” does not necessitate proof of the identity or citizenship of his biological parents. It was submitted that it is sufficient to show that he did not acquire foreign citizenship within one year of birth, as contemplated by Section 2(3). He further asserts that the defendants, by registering him as a non-citizen in his third birth certificate, have effectively rendered him stateless, contrary to the spirit and intention of the Federal Constitution. S/N hwuzNq2MUyD4gbEua8UrQ [41] The defendants, however relied on the case of Than Siew Beng & Anor v Ketua Pengarah JPN & Ors [2017] 5 MLJ 662, where the Court of Appeal held that the phrase “was not born a citizen of any country” must be understood with reference to the biological parents’ citizenship at the time of birth. It is therefore submitted by the defendants that the plaintiff must establish the citizenship of his biological mother and that citizenship under Section 1(e) must be determined at the point of birth. Therefore, it is the submission of the defendants that the plaintiff has failed to satisfy the requirement of citizenship by descent (jus sanguinis), as emphasised by this Court in Lim Jen Hsian & Anor v Ketua Pengarah JPN & Ors [2018] 6 MLJ 548. [42] It is settled law, as held by this Court in Tan Siew Beng (supra) that Article 14(1)(b) of the Federal Constitution, read with section 1, Part II of the Second Schedule, embodies both the principles of jus soli and jus sanguinis. This dual requirement applies with equal force to section 1(e) of Part II, notwithstanding that jus sanguinis is not expressly stated therein. This Court in Than Siew Beng (supra) held as follows: “[35] A plain reading of para 1(e) ‘was not born a citizen of any country’ refers to the relationship of the second appellant to his biological and lawful parents at the time of his birth. The only available documentary evidence, the second appellant’s birth certificate (‘exh TSB6’) contained no information pertaining to the biological parents and the relevant particulars were endorsed with ‘Maklumat Tidak Di perolehi’. S/N hwuzNq2MUyD4gbEua8UrQ [36] Since the identity of the child’s lawful and biological parents are unknown, it is not possible to determine the lineage of the second appellant that would enable the second appellant to be conferred citizenship by lineage ie jus sanguinis. [37] Thus in our view, the second appellant has not fulfilled the requirement to be a citizen by operation of law within the “[23] Article 14(1)(b) of the Federal Constitution encapsulates the requirement of citizenship by jus soli ie, place of birth; while s. 1(e) of Part II of the Second Schedule of the Federal Constitution ("not born a citizen of any country") encapsulates the requirement of citizenship by jus sanguinis ie, by blood or lineage. meaning of para 1(e) of Part II of the Second Schedule of the Federal Constitution (refer to Chin Kooi Nah (suing on behalf of himself and as litigation representative to Chin Jia Nee, child) v Pendaftar Besar Kelahiran dan Kematian, Malaysia [2016] 7 MLJ 717). [38] We cannot accept the contention of the appellants that the evidence that the second appellant was born in the Federation and had resided in the Federation all his life, as well as the absence of particulars on the second appellant’s birth certificate in respect of his lineage can be construed as sufficient proof that the second appellant ‘was not born a citizen of any country’. As was stated earlier, what is required is evidence of the second appellant’s lineage, which evidence is absent. [39] Thus, we agree with the finding of the learned High Court judge that the second appellant has failed to prove on the balance of S/N hwuzNq2MUyD4gbEua8UrQ probabilities that the requirement of para 1(e) of Part II of the Second Schedule of the Federal Constitution abovementioned has been satisfied.” [43] The same position was taken by this Court in Lim Jen Hsien & Anor (supra) which held as follows: “[26] The second issue before us is whether the second appellant has satisfied the requirements stipulated in para 1 (e) of Part I, second Schedule of the Federal Constitution, to be read with art 14 (1) (b) of the Federal Constitution to obtain citizenship by operation of law? [27] Article 14(1)(b) of the Federal Constitution encapsulates the requirement of citizenship by jus soli ie. by place of birth; while para 1 (e) of Part II, Second Schedule of the Federal Constitution (not born a citizen a citizen of any country) encapsulates the requirement of citizenship by jus sanguinis ie by blood or lineage.” [28] Thus, it would appear that the second appellant would need to satisfy both the requirement of jus soli and jus sanguinis in order to fulfil the requirements of art 14 (1) (b) and s 1 (e) of Part II, Second Schedule of the Federal Constitution (refer to Chin Kooi Nah (suing on behalf of himself and as litigation representative to Chin Jia Nee, a child) v Pendaftar Besar Kelahiran dan Kematian, Malaysia [2016] 7 MLJ 717).” S/N hwuzNq2MUyD4gbEua8UrQ [44] The requirement to prove lineage for citizenship under Section 1(e), Part II, Second Schedule of the Federal Constitution is also fortified by Section 2(1), Part II, Second Schedule of the Federal Constitution which provides as follows: “2. (1) A person is not a citizen by virtue of paragraph (a), (d) or (e) of section 1 if, at the time of his birth, his father, not being a citizen, possesses such immunity from suit and legal process as is accorded to an envoy of a sovereign power accredited to the Yang di-Pertuan Agong, or if his father is then an enemy alien and the birth occurs in a place under the occupation of the enemy.” [45] In Tan Soo Yin v. Registrar-General of Births and Deaths, Malaysia (Court of Appeal, Civil Appeal No: W-01(A)-548-10/2020), this Court had reaffirmed the established legal position in Than Siew Beng and Lim Jen Hsian, that the birth within the Federation satisfies jus soli, but in the absence of evidence identifying the appellant’s biological parents, jus sanguinis remains unsatisfied. Without such proof of parentage, it is impossible to determine whether the appellant is stateless for the purposes of paragraph 1(e), Part II, Second Schedule of the Federal Constitution. [46] Added to that, this Court in the cases of Lim Jen Hsian, Than Siew Beng, and Tan Soo Yin have all held that the burden lies on the persons asserting that the qualification of citizenship by operation of law is satisfied. Reference is made to the relevant paragraph in Tan Soo Yin on this point: S/N hwuzNq2MUyD4gbEua8UrQ “[28] In our view, the burden of proving that the Appellant "was not born a citizen of any country" lies on the Appellant. The Appellant must prove that at the time of her birth, based on her lineage, she does not acquire citizenship of any country.” [47] Therefore, the onus is on the plaintiff to prove that he “was not born a citizen of any country”. He must demonstrate, based on his lineage at birth, that he did not acquire citizenship of any country. Statelessness must be established by positive evidence and it cannot be inferred by deduction or speculation. While the nature and quality of the evidence required may vary according to the circumstances of each case, the initial burden of proof by the applicant must be undisputed and must be discharged. [48] In the case of Azimah bt Hamzah v Ketua Pengarah Jabatan Pendaftaran Negara & Ors [2023] 3 MLJ 227, this Court held as follows: “[15] As for the second requirement, the learned High Court judge referred to the decision of this court in Than Siew Beng & Anor v Ketua Pengarah Jabatan Pendaftaran Negara & Ors [2017] 5 MLJ 662 and held that for the purposes of s 1(e) of Part II of the Second Schedule the burden of proof lies on the appellant to establish on a balance of probabilities that the appellant was not born a citizen of any country. See s 103 of the Evidence Act 1950 and also the cases of Lim Jen Hsian & Anor v Ketua Pengarah Jabatan Pendaftaran Negara & Ors [2018] 6 MLJ 548 and Ong Boon Hua @ Chin Peng & Anor v Menteri Hal Ehwal Dalam Negeri, Malaysia [2008] 3 MLJ 625; [2008] 5 CLJ 42. S/N hwuzNq2MUyD4gbEua8UrQ ….. [17] This court had in Than Siew Beng & Anor v Ketua Pengarah Jabatan Pendaftaran Negara & Ors [2017] 5 MLJ 662 held that as a matter of law any person seeking to rely on art 14(1)(b) read with s 1(e) of Part II of the Second Schedule of the Federal Constitution to establish citizenship by operation of law would have to establish the requirements of both jus soli and jus sanguinis… [49] Consequently, the determination of whether an applicant was “not born a citizen of any country” necessarily requires proof of the status of the applicant’s biological and lawful parents at the time of birth. The citizenship and lineage of the biological parents are therefore critical, as they directly affect the appellant’s status at birth. [50] In the present appeal, it is not in dispute that GC Tan and KF Wong are not the paintiff’s biological parents, and neither they nor the plaintiff has adduced any evidence regarding the citizenship or marital status of the plaintiff’s biological parents, which is crucial in order to determine the plaintiff’s claim for citizenship. [51] As established in the cases Than Siew Beng, Lim Jen Hsian, Tan Soo Yin and Azimah, birth within the Federation satisfies jus soli, but without proof of biological parentage, jus sanguinis remains unsatisfied. Consequently, it is impossible to ascertain whether the plaintiff is stateless for the purposes of paragraph 1(e), Part II, Second Schedule of the Federal Constitution. S/N hwuzNq2MUyD4gbEua8UrQ [52] On the factual matrix of this case, the plaintiff had satisfied the first and second criteria for citizenship, having been born after Malaysia Day on 20 October 2000, and having been born within the Federation, at Klinik Asia & Rumah Bersalin, Bandar Puchong Jaya, Selangor. However, the plaintiff did not satisfy the third criterion, as he failed to prove his lineage and, accordingly, that he was “not born a citizen of any country.” [53] In the premise, we find that the learned Judge fell into error in his finding. We are of the considered opinion that the plaintiff is not a citizen of Malaysia by operation of law under Article 14(1)(b) of the Federal Constitution read with Section 1(e), Part II, Second Schedule of the Federal Constitution. [54] With regards to the application of Section 2(3), Part II, Second Schedule of the Federal Constitution, we are of the considered opinion that this provision does not operate to automatically confer Malaysian citizenship under Section 1(e), Part II, Second Schedule, based solely on the averment that the plaintiff did not acquire citizenship of any foreign country within one year of his birth on 20 October 2000. [55] Section 2(3), Part II, Second Schedule of the FC provides as follows: “(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.” S/N hwuzNq2MUyD4gbEua8UrQ [56] We are of the considered opinion that Section 2(3), Part II, Second Schedule of the Federal Constitution operates solely to treat any citizenship acquired within one year after birth as having been acquired at the time of birth. In other words, the provision functions as a presumption as to the time of acquisition of citizenship, deeming any citizenship obtained within the first year of life to be acquired at birth. [57] The operation of Section 2(3), Part II, Second Schedule of the Federal Constitution to treat the citizenship as being acquired at the time of birth is in line with the determining point of time for acquisition of citizenship by operation of law under Section 1, Part II, Second Schedule of the FC where all of the paragraphs (a) to (e) use the words “at the time of the birth” and “born”. This is also in line with the legal principle laid down by the Federal Court in CTEB & Anor v Ketua Pengarah Pendaftaran Negara, Malaysia & Ors [2021] 4 MLJ 236, which is as follows: “[194] Concluding my view and discussions, I am clear in my mind and reinforced in my view, that the qualification of acquiring citizenship by operation of law, must be met at birth. And if the qualifications are not met, this court is not at liberty to add and subtract any other or qualifications which the FC states otherwise.” [58] Therefore, it is not correct to rely on subsection 2(3) of Part II to argue that a child is stateless simply because they did not acquire any citizenship within one year of birth. That is not what the subsection is meant to address. Subsection 2(3) only provides that if a person does acquire a citizenship within one year after birth, S/N hwuzNq2MUyD4gbEua8UrQ whether under a provision similar to section 1(c) of Part II or by any other means, then that citizenship is treated as if it had been acquired at the time of birth. As such, Section 2(3) only creates a presumption about the timing of acquiring citizenship. It does not apply when no citizenship was acquired at all. [59] The presumption under Section 2(3) cannot substitute for the evidential requirement under Section 1(e) that the plaintiff must prove that he was “not born a citizen of any country,” which necessarily depends on establishing his lineage and the citizenship of his biological parents at the time of birth. [60] In the present case, Section 2(3), Part II, Second Schedule of the Federal Constitution is inapplicable, as there is no evidence before the Court that the plaintiff acquired any citizenship within one year after birth, which could be treated as having been acquired at the time of birth. In other words, Section 2(3) is irrelevant to the present case. [61] We are of the considered opinion and we agree with the learned Senior Federal Counsel that Section 2(3), Part II, Second Schedule does not state that a person who does not obtain any citizenship within one year of birth is thereby deemed to be ‘not born a citizen of any country’ under Section 1(e), Part II, Second Schedule. If the framers of the Federal Constitution had intended Section 2(3) to have such an effect, they would have said so expressly. Reading Section 2(3) in that manner would effectively be rewriting the Constitution, which is not permissible. S/N hwuzNq2MUyD4gbEua8UrQ Conclusion [62] Until the plaintiff produces evidence establishing his lineage and the citizenship status of his biological parents at the relevant time, the constitutional requirements of jus sanguinis are not met, and therefore he cannot be recognised as a Malaysian citizen by operation of law. For these reasons, we allow the defendants’ appeal and set aside the learned Judge’s declaratory order concerning the plaintiff’s citizenship under Article 14(1)(b), read together with Section 1(e) and Section 2(3) of the Second Schedule to the Federal Constitution. We make no order as to costs. Dated: 6 March 2026 sgd (AZIZAH BINTI NAWAWI) Judge Court of Appeal, Malaysia S/N hwuzNq2MUyD4gbEua8UrQ Parties Appearing: RAYUAN SIVIL NO: W-01(A)-251-05/2023 For the Appellant s : Mohammad Sallehuddin bin Md Ali (FC) Jabatan Peguam Negara (AGC)) For the Respondent : Raymond Mah Mun Kitt/Agalya A/P Munusamy/Alyssa Dalila binti Badli Esham (Tetuan Mah Weng Kwai & Associates) RAYUAN SIVIL NO: W-01(A)-254-05/2023 For the Appellant : Raymond Mah Mun Kitt/Agalya A/P Munusamy/Alyssa Dalila binti Badli Esham (Tetuan Mah Weng Kwai & Associates) For the Respondents : Mohammad Sallehuddin bin Md Ali (FC) (Jabatan Peguam Negara (AGC)) Cases Referred: 1. CCH & Anor v Pendaftar Besar bagi Kelahiran dan Kematian, Malaysia [2022] 1 MLJ 71 2. 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 S/N hwuzNq2MUyD4gbEua8UrQ 3. CTEB & Anor v Ketua Pengarah Pendaftaran Negara, Malaysia & Ors [2021] 4 MLJ 236 4. Than Siew Beng & Anor v Ketua Pengarah JPN & Ors [2017] 5 MLJ 662 5. Lim Jen Hsian & Anor v Ketua Pengarah JPN & Ors [2018] 6 MLJ 548 6. In Tan Soo Yin v. Registrar-General of Births and Deaths, Malaysia (Court of Appeal, Civil Appeal No: W-01(A)-548-10/2020) 7. Azimah bt Hamzah v Ketua Pengarah Jabatan Pendaftaran Negara & Ors [2023] 3 MLJ 227 8. CTEB & Anor v Ketua Pengarah Pendaftaran Negara, Malaysia & Ors [2021] 4 MLJ 236 S/N hwuzNq2MUyD4gbEua8UrQ