Lau Lai Leng v Ketua Pengarah Jabatan Pendaftaran Negara (J-01(NCvC)(A)-400-06/2024)

LAU WEI SIANG ...APPELLANTS

KERAJAAN MALAYSIA ...RESPONDENTS [IN THE HIGH COURT OF MALAYA AT MUAR IN THE STATE OF JOHOR DARUL TAKZIM SIVIL SUIT NO: JB-24NCVC-217-04/2023 Dalam Perkara Aturan 7 dan Aturan 73 Kaedah-Kaedah Mahkamah 2012 Dan Dalam Perkara mengenai Seksyen 25 Akta Mahkamah Kehakiman 1964 Dan Dalam Perkara mengenai Bab-Bab VI dan VII Akta Relief Spesifik 1950 Dan Dalam Perkara mengenai Perkara 14 dan Bahagian II Jadual Kedua Perlembagaan Persekutuan

LAU WEI SIANG (NO DAFTAR KELAHIRAN: 106377XA) (Seorang kanak-kanak yang menuntut melalui bapa kandung yang sah di sisi undang-undang dan wakil litigasi) LAU LAI LENG (No. KP:820219-01-5965) ...PLAINTIF-PLAINTIF

KERAJAAN MALAYSIA ...DEFENDAN-DEFENDAN] CORAM: AZIZAH BINTI HAJI NAWAWI, HBSS MOHD NAZLAN BIN MOHD GHAZALI, HMR AZHAHARI KAMAL BIN RAMLI, HMR GROUNDS OF JUDGEMENT

This is an appeal by the first appellant and the second appellant against the decision of the learned High Court Judge (HCJ) in dismissing their application, made by way of an Originating Summons dated 4.4.2023 for, among others, a declaration that the second appellant is a citizen of Malaysia by operation of law pursuant to Article 14 (1) (b) read together with Part II section 1(e) and section 2 (3) of the Second Schedule of the Federal Constitution (FC).

In this judgment, the parties will be referred to as they were in the High Court.

The second plaintiff (the child) was born on 10.12.2017 at the Pusat Pakar Perbidanan dan Sakit Puan Raja Muar. A birth certificate no 106377XA was issued to him.

The first plaintiff was recorded as the biological father of the child whereas one En Sreylin, a Cambodian woman with passport No. N1880399 was recorded as the biological mother of the child. It is not disputed that the first plaintiff is a Malaysian citizen, born in Hospital Daerah Muar and was issued with a birth certificate no F215947 and an identification card no. 820219-01-5965.

It is not disputed that the first plaintiff and the biological mother of the child was not legally married at the time of the birth of the child. The child is illegitimate.

The child was registered as a non-citizen of Malaysia on the ground that both his biological father and the biological mother were not legally married at the time of his birth.

On 10.9.2018, the first plaintiff had applied to the Ministry of Home Affairs for citizenship under Article 15A of the FC. This application was rejected on 29.11.2018.

On 15.12.2022, the plaintiffs' solicitor had written a letter to the Embassy of Cambodia in Malaysia for confirmation that the child is not a citizen of Cambodia and whether a Cambodian passport has been issued to the child.

On 16.12.2022, the plaintiffs' solicitor was informed by one Chamroeun Yong, an officer at the Embassy of Cambodia that they could not issue any confirmation on the status of the child because the child was born in Malaysia and had never been to Cambodia.

On 24.2.2023 both the first plaintiff and the child had undergone a DNA test at the Chemistry Department. In its report dated 10.3.2023, the Chemistry Department had confirmed that the first plaintiff is the biological father of the child.

The plaintiffs then filed the Originating Summons ('OS') seeking for the following orders:

Satu deklarasi bahawa LAU WEI SIANG (N0. Daftar Kelahiran:106377XA) (plaintif kedua) adalah seorang warganegara Malaysia melalui kuat kuasa undang-undang menurut kelahiran beliau di Persekutuan menurut Perkara 14 (1) (b) dibaca Bersama Bahagian II seksyen 1 (e) dan seksyen 2(3) Jadual Kedua Perlembagaan Persekutuan;

(ii) Selanjutnya dan/atau secara alternative, satu deklarasi bahawa Plaintif Kedua adalah seorang warganegara Malaysia menurut kewarganegaraan bapa beliau, LAU LAI LENG (No KP: 820219-01-5965) (Plaintif Pertama) menurut Perkara 14 (1) (b) dibaca bersama Bahagian II Seksyen 1(a) Jadual Kedua Perlembagaan Persekutuan.

The plaintiffs also prayed for numerous consequential orders which are not relevant to this appeal as those reliefs were incorporated to give effect to the main prayers (i) and (ii) above.

The learned HCJ held that proof of jus soli and jus sanguinis are required in an application for citizenship by operation of law under Article 14 (1) (b) read together with section 1 (a) and (e) and section 2(3) part II of Second Schedule of the FC. In this regard, learned HCJ also held that the plaintiffs must prove on the balance of probabilities that the second plaintiff was not a citizen of any country at the time of his birth.

The learned HCJ was also of the view that in cases involving illegitimate child, the jus sanguinis issue must follow that of the biological mother of the illegitimate child. In this case, the learned HCJ ruled that the jus sanguinis of the second plaintiff, being an illegitimate child, follows the biological mother i.e. Cambodia; and that the plaintiffs had failed to prove that the second plaintiff was not born a citizen of any country for the purpose of section 1(e) of Part II of the Second Schedule of the FC. Since the first plaintiff and the biological mother of the second were not legally married, the learned HCJ also found that the plaintiff had also failed to prove that section 1 (a) of Part II of the Second Schedule of the FC applies to the plaintiff's application.

The plaintiffs' primary relief is for a declaration that the child is a Malaysian citizen, by the operation of law:

under Article 14 (1) (b) read together with Part II section 1(e) and section 2 (3) of the Second Schedule of the FC; and/or

(ii) under Article 14 (1) (b) read together with Part II section 1(a) of the Second Schedule of the FC.

Hence, the issue before us is whether the learned HCJ was correct when he held that the plaintiffs have failed to prove that the second plaintiff is not entitled to citizenship under the above provisions of the FC. Article 14 (1) (b) read together with Part II section 1(e) and section 2 (3) of the Second Schedule of the Federal Constitution.

In this appeal, the plaintiffs contended that nowhere in section 1(e) and section 2 (3) of the Second Schedule of the FC that requires the proof of jus sanguinis. However, the requirement of jus sanguinis is present in section 1 (a) of the Second Schedule. It was submitted that the learned HCJ erred when he ruled that the application for citizenship by the operation of law under section 1(e) and section 2 (3) of the Second Schedule of the FC would requires the proof of both jus soli and jus sanguinis. It was also submitted that the child is entitled to be given citizenship by the operation of law for the following reasons:

The child was born in Malaysia and not Cambodia; and

(ii) The child has not acquired citizenship from any other country including Cambodia within one year after his birth.

The plaintiffs also submitted that the learned HCJ erred in not following the decision in Madhuvita Janjara Augustine (suing through next friend Margaret Louisa Tan) v Augustine a/l Lourdsamy & ors [2018] 1 MLJ 307; [2018] 4 CLJ 758; [2017] MLRAU 455 in holding that pursuant to section 17 of Part III of the Second Schedule, in the case of an illegitimate child, the word "parents" refers to the child's mother and not the first plaintiff as the biological father.

It is now incumbent upon us to determine whether the plaintiffs have proven that Article 14 (1) (b) read together with Part II section 1(e) and section 2 (3) of the Second Schedule of the FC apply to the facts of the case.

The acquisition of Malaysian citizenship is governed by Part III of the FC. Article 14(1) of the FC provides for the citizenship by operation of law. It provides that: 14 (1) Subject to the provisions of this part, the following persons are citizens by operation of law, that is to say:

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

Every person born on or after Malaysia Day, and having any of the qualification specified in Part II of the Second Schedule.

Part II of the Second Schedule provides as follows:

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:

every person born within the Federation of whose parents one at least is at the time of the birth either a citizen or permanently resident in the Federation; and

every person born outside the Federation whose father is, at the time of birth a citizen and either was born in the Federation or is at the time of birth in the service of the Federation or of the State; and

every person born outside of 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 in 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

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 that by virtue of this paragraph; and

every person born within the Federation who is not born a citizen of any country otherwise than by virtue of this paragraph.

Another provision which is relevant for our consideration in this appeal is section 17 Part III of the Second Schedule of the FC which provides:

For the purpose 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 person.

The following facts are relevant in this appeal i.e.:

the child was born within the Federation after Malaysia Day;

(ii) the first plaintiff and the biological mother of the child were not legally married at the time of the birth of the child;

(iii) The child was registered as a non-citizen of Malaysia on the ground that both his biological father and the biological mother were not legally married at the time of his birth; and

(iv) The biological mother of the child is a non-citizen of Malaysia.

For a citizenship application under Article 14 (1) (b) read together with section 1(e), Part II of the Second Schedule, the plaintiffs must fulfil the following requirements:

The child is born on or after Malaysia Day;

(ii) The child was born within the Federation; and

(iii) The child was not born a citizen of any country.

As stated earlier, the plaintiffs argued that the jus sanguinis is not an ingredient to be proven under section 1 (e) of the Second Schedule. However, this issue had been decided by this court in Lim Jen Hsian & Anor v Ketua Pengarah Jabatan Pendaftaran Negara & Ors [2018] 6 MLJ 548; [2017] 8 CLJ 412; [2017] 6 MLRA 426.In delivering the decision of the court, Badariah Sahamid JCA opines at p 556 of the judgment as follows: [26] The second issue before us is whether the second appellant has satisfied the requirements stipulated in para 1 (e) of Part II, 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) [29] The doctrine of jus soli and jus sanguinis were explained in the case of Singh v Commonwealth of Australia [2004] HCA 43, which was referred to in the case of Chun 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, at p 747 as follows: By the late nineteenth century, international law recognised two well established rules for acquiring nationality by birth: jus soli and jus sanguinis (the Australian Legal Dictionary (1997) defines jus soli to mean: a right acquired by virtue of the soil or place of birth. Under this right, nationality of a person is determined by the place of birth rather than parentage. Nationality is conferred by the state in which the birth takes place; and defines jus sanguinis to mean: a right of blood. A right acquired by virtue of lineage. Under this right, the nationality of a person is determined by the nationality of their parents, irrespective of the place of birth."

We have no reason to depart from the decision in Lim Jen Hsian (supra), especially in the light of the decision in the case of Than Siew Beng & Anor v Ketua Pengarah Jabatan Pendaftaran Negara & Ors [2017] 5 MLJ 662; 2017] 8 CLJ 16; [2017] 6 MLRA 358 where it was held that: [27] The contentious issue is in respect of the requirement of jus sanguinis in para 1 (e) of Part II of the Second Schedule of the Federal Constitution, as expressed by the phrase, 'who is not born a citizen of any country'. For the purpose of this requirement the material time to determine the status of the second appellant's lineage is at the time of his birth. [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..."

In our view, the different phrase of 'not born a citizen of any country' in para 1 (e) of Part II of the Second Schedule and "every person born on" in Article 14 (1) (b) and para 1 (e) are a clear indication that the framers of our constitution had anticipated the different requirement to be fulfilled in citizenship application. Hence, proof of jus soli (whether the child was born within the Federation) and jus sanguinis (whether the child is not born a citizen of any other country) is required in the present application.

Coming back to the plaintiffs' application. In proving jus sanguinis, the phrase 'was not born a citizen of any country' would requires the plaintiffs to prove the status of the child's lineage at the time of his birth, i.e. the relationship of the second appellant to his biological and lawful parents at the time of his birth (Than Siew Beng & Anor (supra). The burden of proof is on the plaintiff to prove that the child 'was not born a citizen of any country'. This is consistent with the basic principle of the law of evidence that he who asserts must prove. Hence in Lim Jen Hsian & Anor (supra) it was held that: [33] It is a well-established principle of law that he who asserts must prove. This is particularly so in respect of facts which are within the appellants' knowledge. This burden of proof is on the appellant to established on the balance of probabilities that the second appellant was not born a citizen of any country. Such rule of evidence is enunciated in s 103 of the Evidence Act 1950 which provides: "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 proof of that fact shall lie on any particular person. [34] In the case of Ong Boon Hua @ Chin Peng & Anor v Menteri Hal Ehwal Dalam Negeri, Malaysia [2008] 3 MLJ 625; [2008] 5 CLJ 42, it was held that the burden is on the applicant to prove his citizen status by the relevant documents, the absence of which would be fatal to prove his claim".

In his affidavit in support, the first plaintiff averred that he (and his solicitor) was informed by one Mr. Chamroeun Yong that the Cambodian Embassy could not issue a verification letter confirming that the child is not a Cambodian citizen or that a Cambodian passport had been issued to him, because the child was born in Malaysia and has never been to Cambodia. However, there is no averment that the child could not be granted Cambodian citizenship even though his biological mother is a citizen of Cambodia. To the contrary, the learned HCJ had referred to Article 4 of the Cambodian Law on Nationality, which provides as follows: "Article 4:

Shall obtain Khmer nationality/citizenship regardless of the place of birth for: - Any legitimate child who is born from a parent (a mother or father) who has Khmer nationality/citizenship, or - Any illegitimate child who is born from and recognized by a parent (a mother or father) who has Khmer nationality/citizenship, or - Any child who is not recognized by the mother and father (parents), when upon the court passed a judgment stating that such child was really from a parent (a mother or father) who has Khmer nationality/citizenship".

On this issue, the learned HCJ made a finding that the child could acquire Cambodian citizenship as the law of Cambodia recognises the right of an illegitimate child born to a Cambodian mother who was born outside Cambodia. The issue that the child would be stateless does not arise in view of the law on citizenship/nationality in Cambodia.

In the High Court, the learned HCJ ruled that the child, being an illegitimate child, could not acquire citizenship through his biological father (the 1 $ ^{st} $ plaintiff), pursuant to section 17, Part III of the Second Schedule of the Federal Constitution.

Based on this ground, the learned HCJ held that the second plaintiff (the child) had failed to prove that he was not born as a citizen of another country.

This is where the crux of the dispute pertaining to section 1 (e) lies. While submitting that the learned HCJ had erred in holding that proof of jus sanguinis is required for an application on section 1 (e) the plaintiff also submitted that Lim Jen Hsian & Anor (supra) was decided per incuriam.

In this regard, we can do no better than citing the Federal Court case of CTEB & Anor v Ketua Pengarah Pendaftaran Negara, Malaysia & Ors [2021] 4 MLJ 236; [2021] 6 CLJ 471; [2021] 4 MLRA 713 where it was held that: [157] From the express distinction for parents of father of an illegitimate child in s 17, it is obvious that the word 'parent' in the context of Part III of the FC must be construed to refer to lawful parents in a recognised marriage in the Federation. This country never legally recognised unwedded parents. I say so because proper distinctions have always been made in our legislation in order to differentiate between the status of 'parents' in a recognised marriage or otherwise. Even under s 13 of the Births and Deaths Registration Act 1957, the legislation makes a clear distinction between a father or mother of an illegitimate child. This connotes that 'parents' refers always to legally wedded parents, not biological father or mother.

In tracing the historical aspect of Article 14 (1) (b), section 1 (b) of Part II, and section 17 of Part III of the Second Schedule of the FC, the Federal Court further opines that: "[189] The relevant historical documents show the process of how the current art 14 (1) (b), section 1 (b) of Part II, and section 17 of Part III of the Second Schedule of the FC come into existence. There is a need to deduce from those processes, the meaning of the acquisition of citizenship by operation of law under the said provision. [190] The historical fact as articulated in The Reid Commission Report 1957 shows that it has always been the position taken by our framers of the FC that, an illegitimate child's citizenship is to follow that of the mother and not the father. Since its inception the provision of law on citizenship in the FC by operation of law had not undergone any change vis a vis the illegitimate child status (see Reid Commission Report 1957). The draft of the provision of current s 17 was fully endorsed by the Working Party of the Constitution of the Federation 1957. It fully endorsed the proposal that the status of an illegitimate child is to follow the citizenship of the mother. [191] The proposal for an illegitimate child to follow the citizenship of the mother received the support of the Working Party of the Constitution of the Federation 1957 (CO 941/86) on the then s 7(3) which is now s 17, with drafting modifications. The point worthy of noting from those historical documents is that the issue relating to an illegitimate child to follow the citizenship of the mother remained as the law to date. It would therefore be a total misapprehension, to severe s 17 from the interpretation of art 14".

On the issue pertaining to illegitimate child, the Federal Court concludes: "[194] Concluding my view and discussion, 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 [sic] qualification which the FC states otherwise.

We are of the respectful view that this Court is bound to follow CTEB & Anor that the jus sanguinis requirement in section 1 (e) should be traced on the lawful parents of the child and since the child is an illegitimate child, his jus sanguinis must follow that of his biological mother. Since the child's biological mother is not a citizen of Malaysia, he was born as a citizen of Cambodia; hence the requirement of section 1 (e) was not met.

In this respect, it was suggested that the learned HCJ erred in not following the case of Madhuvita (supra). In paragraph 19 and 20 of the written submission, the plaintiff suggested that in Madhuvita (supra), this court had taken into consideration the fact that if the declaration sought for was not granted, the child would be stateless; and that such a state would not and cannot be the best interest and for the welfare of the child.

A short answer to this submission is that Madhuvita (supra) has been overruled by CTEB & Anor (supra) as follows: "[175] The appellants' argument that the child's birth status has been altered by virtue of his legitimation via s 4 of the Legitimacy Act and that his legitimacy status for the purpose of s 17 of Part II of the Second Schedule is to be taken at the time of the application for citizenship, amounts to introducing words into the provision of the FC against the express wordings of art 14 (1) (b) read together with the Second Schedule. [176] This has been the interpretation of these clauses on the law on citizenship by operation of law, adopted in all the reported cases thus far except in the Court of Appeal case of Madhuvita Janjara Augustin (suing through next friend Margaret Louisa Tan) v Augustin a/l Lourdsamy & Ors [2018] 1 MLJ 307 (Madhuvita). [177] Madhuvita parted ways from all the reported cases on the subject both in the High Court as well as the Court of Appeal. The child in Madhuvita was born in Malaysia while here, the child was born in the Philippines. In Madhuvita, the father is a Malaysian and the mother is a citizen of Papua New Guinea. At the time of the child's birth, both were not married. It was about two months after the birth of the new child that the parents were married according to Malaysian law. The Court of Appeal had granted citizenship by operation of law to an illegitimate child pursuant to art 14(1) (b) read together with s1 (a) and/or (e) of Part II of the Second Schedule of the FC. [178] In arriving at its decision in Madhuvita, the Court of Appeal concluded that the word "parents" under art 14 (1) (b) read with s 1 (a) of Part II of the Second Schedule is not qualified by the word 'lawful', 'natural', 'biological', 'adopted', 'surrogate' or any other description or adjective. As such, it includes biological parents. The fact that her parents were not married at the time of her birth does not alter or diminish their capabilities as her parents. Hence, it did not need to rely on the interpretation provision in s 17 of Part II of the Second Schedule. [179] Madhuvita distinctly differed from all other decisions in respect of two main issue:

that the legitimacy or otherwise of a child is to be considered at the time of the application; and

the word 'parents' in s 1 (a) pf Part II of the Second Schedule refers to the capacity of 'parents' unqualified in any manner or form by the word 'lawful', 'natural', 'biological', 'adopted' or even 'surrogate' or any other description or adjective. [180] With respect, I am not in agreement with Madhuvita in relation to the finding that the legitimacy or otherwise of a child is to be considered at the time of the application. The interpretation of the word 'parents' given by Madhuvita had also gone against all the other authorities. The word 'parents' in s 1(a) is not defined in the FC. As such we will have to rely on the plain and ordinary meaning of the word. Black's Law Dictionary Abridged (6th Ed) (Cantennial Edition 1891-1991) defines the word 'parents' to mean 'the lawful father or mother of a person'. Therefore, in defining the word 'parents' in s 1 (a) giving a plain and ordinary, meaning must refer to lawful parents. In the same light, the word 'father' in s 1 (b) must also refer to a father in a valid marriage".

We are mindful of the fact that in CTEB & Anor (supra) the application for citizenship by operation of law was made under section 1 (b) of Part II of the Second Schedule of the Federal Constitution. However, since the issue of jus sanguinis should be traced to parents of the child, the interpretation of the word 'parents' in CTEB & Anor (supra) i.e. to mean the lawful father or mother of the child, the decision in CTEB & Anor (supra) is to be preferred. Furthermore, being the decision of the Federal Court, CTEB & Anor is binding on this court.

The plaintiffs also submitted that the learned HCJ erred in not following the case of CCH & Anor v Pendaftar Besar Bagi Kelahiran dan Kematian Malaysia [2022] 1 MLJ 71; [2022] 1 CLJ 1; [2022] 1 MLRA 185. According to the plaintiffs, CCH was decided on 19.11.2021 which is after the decision in CTEB & Anor (supra) i.e. on 28.5.2021; hence following the rule of stare decisis, the decision in CCH should be preferred. In essence, it was submitted that in CCH, the Court had adopted the decision of the minority in CTEB & Anor (supra) in holding that the marital status of the parents of the child did not diminish the right of the child to acquire citizenship by operation of law. Put in another way, an illegitimate child's right for citizenship is not dependent on whether the biological parents are legally married or not.

This issue has been dealt with in the case of Mahisha Suhaila Abdul Majeed v Ketua Pengarah Pendaftaran & Ors and Another Appeal [2022] 5. MLJ 194; [2022] 8 CLJ 697; [2022] 6 MLRA 59. In analysing the purported conflict between the case of CTEB & Anor (supra) and CCH, in particular the endorsement of the minority decision in CTEB & Anor by CCH, this court held that: [21] It was submitted that the majority dictum in CTEB is therefore no longer applicable nor binding on this court as a later Federal Court decision CCH & Anor v Pendaftar Besar Bagi Kelahiran dan Kematian, Malaysia [2022] 1 CLJ 1; [2022] 1 MLJ 71 ("CCH") has set out the proper approach to constitutional interpretation of citizenship provisions. In my view, CCH's case was dealing with the issue that the child is entitled to citizenship under s 1 (e) of Part II, s 19B Part II and other related sections were inserted by the constitutional amendments effected through Malaysia Act 1963 to guard against statelessness. Weeding out statelessness have been discussed in great length. The Federal Court adopts the reasoning which eventually recognised the exposed children's right to citizenship by harmonizing the provision. The Federal Court was of the considered view that the child in this case us entitled to citizenship by operation of law pursuant to s 1(a) of Part II read together with s 19B of Part II.

The facts in CCH's case are related to abandoned or exposed children. The Federal Court held that the broadest possible interpretation of the word "found exposed" is to accord it a meaning to include a child abandoned at the place of birth by the birth mother whose identity is unknown. However, the facts and issues in the present case are different and therefore can be distinguished. The issue in CCH's case in my view is not whether the word "father" under art 14 (1) (b) Part II s 1 (b) Second Schedule of the Federal Constitution ought to be construed as mother or include mother. The interpretation is not related to s 1(b) Second Schedule of the Federal Constitution but to s 1 (a) of Part II read together with s 19B of Part III. More importantly, the mothers are legally married to foreign spouses and their children had all acquired citizenship following their non-citizen father's nationality or without a citizenship or stateless. [23] I find the decision in CTEB's case is in direct reference to citizenship by operation of law provisions in Part II of the Federal Constitution where the majority held that in defining the word "parents" in s 1(a) giving a plain and ordinary meaning must refer to lawful parents. In the same light, the word "father" in s 1 (b) must also refer to a father in a valid marriage. In addressing the issue, the majority decision clearly states that the citizenship by operation of law in the Federal Constitution under art 14 (1) (b) read together with the Second Schedule, in s 1 (b) and (c) of Part II of the Federal Constitution must be read as a whole and to be given a straightforward plain meaning. It means, s 1(b) and (c) of Part II of the Federal Constitution is not discriminatory provision and cl 2 of art 8 of the Federal Constitution cannot be read into s 1(b) and (c) of the Federal Constitution. [76] In CTEB (supra), the issue before the Federal Court was whether an illegitimate child born outside Malaysia, to a Malaysian biological father and a Filipino mother, was entitled to become citizen by operation of law pursuant to art 14 (1)(b) read together with s 1 (b) Part II and s 17 of Part III Second Schedule of the FC. [79] Both decisions of the High Court and the Court of Appeal were affirmed by the apex court in CTEB (supra). The Federal Court, in interpreting art 14 (1)(b) of the FC read with s1(b) of Part II and s17 of Part III of the Second Schedule, held that the word "father" in s1(b) of Part II refers to the child's biological father. However, with regard to illegitimate children, s17 of Part III has construed the word "father" in s1(b) to mean "mother". [140] The issue then is whether the cases of CTEB (supra) and CCH (supra) are in conflict on the same point of law. In CCH case, the child was born and abandoned at Hospital Universiti Kebangsaan Malaysia, Cheras. The appellants jointly decided that they would adopt the child and named him CYM. The issue before the High Court and the Court of Appeal was whether the child, who was born in Malaysia is a Malaysian citizen by operation of law, pursuant to art 14(1) (b) Part II ss 1 (a) and/or 1 (e) together with s 2(3) of Part II Second Schedule of the FC. The appellant took the position that the word "parents" in art 14(1)(b) and s1(a) of Part II of the Second Schedule included the legal parents of a child and not limited to the natural parents only. Both the High Court and Court of Appeal held, inter alia, that the word "parents" in s1(a) of Part II Second Schedule means the natural parents at birth, not the adoptive parents. [142] Even though the questions raised in CCH case is on the interpretation of art 14 (1)(b) read with s 1 (a) and 1 (e) of the Second Schedule, the Federal Court did not decide on this issue. Instead. The Federal court proceeded to look at s 1(a) of Part II and s 19B Part III: [42] It is our considered view that the child in this case is entitled to citizenship by operation of law pursuant to s 1(a) of Part II read together with s 19B of Part III... [143] The Federal Court then held that the operative words under s 19B "any new born child found exposed in any place" are to include a child abandoned at the place of birth by the birth mother whose identity is unknown. [144] Therefore, the Federal Court in CCH (supra) did not decide on the same provisions of the FC as in CTEB case. I am of the considered opinion that the cases of CTEB and CCH are not in conflict on the same point of law, as the decision in CCH is on s 1 (a) of Part II read together with s 19B of Part III. As such, the latter case of CCH did not overrule CTEB on the interpretation of art 14 (1)(b) read with s 1(b) of Part I Second Schedule of the FC"

Based on the above position of law, we hold that this court is bound by the decision in CTEB & Anor. Since the child is an illegitimate child, he is not a citizen by operation of law under Article 14 (1)(b) read with s1(e) and 2(3) of Part II of the Second Schedule of the Federal Constitution. The learned HCJ did not err, either in fact or in law, in disallowing the plaintiffs' prayer for citizenship under Article 14 (1)(b) read with s1(e) and 2(3) of Part II of the Second Schedule of the Federal Constitution. We find no reason to disturb his finding. Article 14 (1) (b) read together with Part II section 1(a) of the Second Schedule of the Federal Constitution

Next, the plaintiffs contended that the learned HCJ erred when he dismissed the plaintiffs' prayer for citizenship under Article 14 (1) (b) read together with section 1 (a) Part II of the Second Schedule of the Federal Constitution. For ease of reference we reproduce Article 14 (1) (b) read together with section 1 (a) Part II of the Second Schedule of the Federal Constitution: "Article 14 (1) (b) 14 (1) Subject to the provisions of this part, the following persons are citizens by operation of law, that is to say:

every person born on or after Malaysia Day, and having any of the qualifications specified in Part 11 of the Second Schedule. Section 1 (a) of Part II of the Second Schedule provides: 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 whose parents one at least is at the time of birth either a citizen or permanently resident in the Federation; and"

The plaintiffs submitted that section 1 (a) of Part II of Second Schedule has been satisfied when it was proven that the child was born in Malaysia whose biological father (first plaintiff) is a Malaysian citizen. On this ground, it was contended that the learned HCJ has erred in disallowing the plaintiffs' application.

The requirement of jus soli and jus sanguinis to be met for an application for citizenship made pursuant to Article 14(1)(b) read with section 1 (a) of Part II of the Second Schedule of the Federal Constitution are similar to an application under section 1 (e) of Part II of the Second Schedule of the Federal Constitution. While the second plaintiff may have satisfied the requirement of jus soli, the fact that he is an illegitimate child at the time of birth, does not qualify him for citizenship of Malaysia in light of Section 17 Part III of the Second Schedule. Since the child was born illegitimate, Section 17 Part III of the Second Schedule applies. Hence, the word "parents" in Section 1 (a) Part II of the Second Schedule must be interpreted as referring to the mother.

We reiterate our view that the case of CTEB & Anor is binding on this Court. Similarly, our deliberation in paragraphs 13 to 41 is equally applicable. Based on the reasons stated therein, we are of the considered view that the learned HCJ did not err in his finding.

Based on the above reasons, we are of the view that the learned HCJ was not plainly wrong in arriving at his decision. We find no appealable error warranting appellate intervention by this Court. This appeal is dismissed. The decision of the learned HCJ is hereby affirmed. No order as to costs. Dated: 12 November, 2025 -sgd-AZHAHARI KAMAL BIN RAMLI JUDGE COURT OF APPEAL MALAYSIA Counsel for the Appellants:Nur Shahzleen binti Ibrahim [Tetuan ER, NG, TAN & Low]Counsel for the Respondents:Puan Norafiah binti Saini Peguam Kanan Persekutuan [Jabatan Peguam Negara]