Liew Sze Yit v Pendaftar Kelahiran dan Kematian (WA-25-313-08/2024)

1.

DOUGLAS LIEW [Seorang Orang Bukan Dewasa Mendakwa Melalui LIEW SZE YIT Wakil Litigasinya] ... APPLICANTS

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2.

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KERAJAAN MALAYSIA ... RESPONDENTS

This was a motion by the Applicants for leave to commence judicial review proceedings for, among others, the following reliefs:

a declaration that the 2nd Applicant (‘A2’) is a citizen of Malaysia by operation of law pursuant to Article 14 of the Federal Constitution read together with section 1, Part II of the Second Schedule to the Federal Constitution; and

an order for mandamus directing the Respondents to carry out all necessary steps, including re-issuance of birth certificate and identity card, and to correct all the Respondents’ records, to restore and reflect A2’s nationality as a citizen of Malaysia by operation of law within 14 days from the date of the order to be made.

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After having considered the cause papers and the oral and written submissions of the parties, I had, on 17.12.2025, accepted the AG’s objections and consequently, the Applicants’ application for leave to commence judicial review proceedings was dismissed.

The Applicants are dissatisfied with my decision and a Notice of Appeal was filed on 7.1.2026.

These are my full grounds of judgment for the decision.

A2 was born on 26.3.2012 at the Cheras Specialist Maternity Centre, Kuala Lumpur as the biological son to the 1st Applicant (‘A1’) and Mida Kurniati (‘Mother’).

The Mother is a citizen of Indonesia. A1 and the Mother were not married at the time of A2’s birth and remain unmarried to this day. They have not been in contact since 2016 because the Mother has abandoned A2 and left A1.

A birth certificate was issued to A2 at birth. The DNA paternity report issued by a private laboratory confirmed that A1 is his biological father.

A2 has been classified as a non-citizen of Malaysia since his birth.

An application was submitted to the 4th Respondent (‘R4’) to restore and register A2 as a Malaysian citizen but it was rejected on 11.1.2022.

By way of the Applicants’ solicitors letter dated 31.7.2024 to the Respondents, they demanded that the Respondents restore and register A2 as a citizen of Malaysia under Article 14(1)(b) of the Federal Constitution read together with sections 1(a) and/ or (e),

A2 claimed that, under Article 14(1)(b) of the Federal Constitution, he has the constitutional right which entitles himself to be registered as a citizen of Malaysia by operation of law. Further, the decision by the Respondents which categorised A2 and continues to treat him as a non-citizen was said to be a violation of his constitutional right and is ultra vires Article 14 of the Federal Constitution and is therefore illegal.

In Kelab Pembina-Pembina Selangor (Selangor Builders’ Club) v Ketua Pengarah Hasil Dalam Negeri [2025] MLJU 4674, this Court said: “24. The learned SFC had cited several case authorities which have expounded on the role of the AG and these may be summarised as follows:

under O. 53 of the RC 2012, the application for judicial review must be served on the AG because judicial review is a principal tool of public law applicable to public bodies. As the guardian of public interest, the AG is a nominal party in all judicial review applications. This is to ensure that the AG vets all judicial review applications in order to ascertain if his participation is warranted. The AG’s function is to safeguard public authorities or public institutions from unwarranted litigation and to deter ill-founded claims that might otherwise paralyse the administration of public functions. This role serves to balance access to judicial review with the need for efficient governance [see Peguam Negara Malaysia v Nurul Izzah bt Anwar & Ors [2017] 4 MLJ 656 (CA) and Messrs Tai Choi Yu & Co, Advocates (suing as a firm and Tai Choi Yu as sole proprietor) v Arifin bin Zakaria & Anor [2020] 5 MLJ 207 (CA)];

if the AG elects to appear at the leave stage, he does so, not as a representative of the respondent, but in his own right as the AG, in discharging his public duty [see Kijal Resort Sdn Bhd v Pentadbir Tanah Kemaman & Anor [2016] 1 MLJ 544 (FC)];

as the leave stage is not concerned with the merits of the judicial review application, the AG is not required under the law to file any affidavit in reply (‘AIR’). The AG’s role is to assist the court in sieving out frivolous applications by showing whether the applicant has an arguable case and has met the threshold for leave for judicial review as explicated by the Court of Appeal in Dato’ Sri Mohd Najib bin Tun Hj Abdul Razak v Attorney General & Ors [2020] 3 MLJ 114 as follows: “[33] A court hearing a judicial review application must determine whether ‘prima facie there is a genuine case for review’. It is accepted that the threshold requirement is low, for leave will only be refused where an application is:

frivolous and vexatious or hopeless;

made by busybodies with misguided or trivial complaints of administrative errors;

misconceived;

unarguable or groundless;

where there is a more appropriate alternative procedure; or

where an application for judicial review is an inappropriate procedure.” (see too, Peguam Negara Malaysia v Chin Chee

if, for instance, the applicant is a busybody; the application is made out of time or against a person or body that is immunised from being impleaded in legal proceedings; or the subject matter of the review is one which by settled law is non-justiciable, and the court is satisfied that the threshold is not met, the application for leave should be refused and dismissed in limine [see Tang Kwor Ham & Ors v Pengurusan Danaharta Nasional Bhd & Ors [2006] 5 MLJ 60 (CA)].”.

The AG’s involvement at the leave stage of judicial review does not create an obligation to contest or verify evidence; it merely grants the AG a procedural right to be heard in determining whether the threshold for leave has been met.

The Federal Court in WRP Asia Pacific Sdn Bhd v. Tenaga Nasional Berhad [2012] 4 CLJ 478 at p 488 said: “[12] … At the leave stage, on a quick perusal of the material available, if the court thinks that subsequently at the substantive hearing stage an arguable case may be disclosed, and the relief sought may be granted, leave should be granted (IRC v. National Federation of Self-Employed and Small Businesses Ltd [1982] AC 617). In Malaysia, the Federal Court in Mohd Nordin Johan v. The Attorney-General, Malaysia [1983] 1 CLJ 130; [1983] CLJ (Rep) 271 when allowing the appeal, opined that ‘the point taken was not frivolous to merit refusal of leave in limine and justified argument on a substantive motion for certiorari’. Without the need to go into depth of the abundant authorities, suffice if we state that leave may be granted if the leave application is not thought of as frivolous, and if leave is granted, an arguable case in favour of granting the relief sought at the substantive hearing may be the resultant outcome. A rider must be attached to the application though ie, unless the matter for judicial review is amenable to judicial review absolutely no success may be envisaged.”. (see too, Association of Bank Officers, Peninsular Malaysia v. Malayan Commercial Banks Association [1990] 3 MLJ 228 as cited by the Applicants).

The SFC submitted for the AG that leave for judicial review should be refused by the court on the following grounds:

there was a fatal misalignment between the challenged “decision” and the reliefs sought;

there was no arguable case under Article 14(1)(b) of the Federal Constitution as illegitimacy is a legal bar; and

there was circumvention of Article 15A of the Federal Constitution and an abuse of the judicial review process.

In submitting for his clients, Mr. Marcus Lee articulated the following points of arguments:

the merits of the judicial review application are not relevant for purposes of granting leave. The merits of the case are matters to be tested at the stage of substantive hearing;

the issue of whether the classification by the Respondents of A2 as a non-citizen merit further hearing and determination by the court;

section 1(a), Part II, Second Schedule of the Federal Constitution was fulfilled as A2’s biological father, A1, was and still is a citizen of Malaysia;

section 1(e), Part II, Second Schedule of the Federal Constitution was fulfilled as A2 was born within the Federation and not as a citizen of any other country. A2 is not a citizen of another country; and

the Applicants have a legitimate expectation that the Respondents will grant A2 with citizenship status because Malaysia ratified the Convention on the Rights of the Child (‘CRC’) on 17.2.1995. Article 7(1) of the CRC grants a child the right to acquire a nationality. By ratifying the CRC, the 5th Respondent (‘R5’) has represented to the public that it will comply and abide by the CRC. However, the Respondents’ refusal to recognise A2’s citizenship was inconsistent with R5’s representation and it was unfair for R5 to act in such a manner. Analysis and Decision of the Court 1st Objection: Whether there was a fatal misalignment between the challenged “decision” and the reliefs sought

The fatal misalignment as argued by the SFC for the AG was this; the core of the Applicants’ challenge was the rejection on 11.1.2022 of their application under Article 15A of the Federal Constitution which reads as follows: “Special power to register children

Subject to Article 18, the Federal Government may, in such special circumstances as it thinks fit, cause any person under the age of twenty-one years to be registered as a citizen.” (Article 18 of the Federal Constitution provides for general provisions as to registration).

The Applicants’ application under Article 15A of the Federal Constitution was not exhibited. However, the letter which was issued by Ministry of Home Affairs dated 11.1.2022 can be seen in exhibit “LSY-4” of the Affidavit In Support affirmed by A1 on 9.8.2024 (‘AIS’) and it is titled “Permohonan Kewarganegaraan Malaysia Di Bawah Perkara 15A Perlembagaan Persekutuan”.

When questioned by the court, Mr. Marcus Lee conceded that the application pursuant to Article 15A of the Federal Constitution was not the decision under challenge, but rather, the omission by the Respondents to recognise that A2 is a citizen by operation of law was being disputed.

The court then asked whether O. 53, rr. 2(4) and 3(6) of the RC 2012, which provide as follows, have been fulfilled: “Applications (O. 53, r. 2)

(1) ... ...

Any person who is adversely affected by the decision, action or omission in relation to the exercise of the public duty or function shall be entitled to make the application. Leave (O. 53, r. 3)

(1) An application under this Order shall not be made unless leave therefor has been granted in accordance with this rule.

An application for leave must be made ex parte to a Judge in Chambers and must be supported by a statement setting out the name and description of the applicant, the relief sought and the grounds on which it is sought, and by affidavits verifying the facts relied on.

The applicant must give notice of the application for leave not later than three days before the hearing date to the Attorney General’s Chambers and must at the same time lodge in those Chambers copies of the statement and affidavits. …

An application for judicial review shall be made promptly and in any event within three months from the date when the grounds of application first arose or when the decision is first communicated to the applicant. ...”.

The learned counsel responded that the 3 months’ time frame does not expire because the omission by the Respondents to recognise that A2 is a citizen by operation of law happens every day. The learned counsel said that there should be an exercise of the right of citizenship and letters of demand as per exhibit “LSY- 5” were sent. The application for judicial review was made because the Applicants need a mandamus.

The SFC correctly submitted that there was nothing in the AIS to show an omission by the Respondents in not registering A2 as a citizen. Only the Birth Certificate was shown in exhibit “LSY-1”.

According to the SFC, Borang JPN/LM 01 as required under s 4 of the Births and Deaths Registration Act 1957 (Revised 1983) [Act 299] should have been submitted. The SFC argued that the proper course for the Applicants, if they truly believed that A2 has a right under Article 14(1)(b) of the Federal Constitution, was to apply for a declaratory order in an originating summons or to first, seek a determination from the authorities by applying for citizenship by operation of law, which could then be subjected to judicial review if the decision is not in the Applicants’ favour.

Article 14(1)(b) and section 1, Part II, Second Schedule of the Federal Constitution provide as follows: “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:

…; and

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

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 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

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

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

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

2.

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.

In section 1 the reference in paragraph (b) to a person having been born in the Federation includes his having been born before Malaysia Day in the territories comprised in the States of Sabah and Sarawak.

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.”.

In the premises, clearly the Respondents never decided under Article 14 of the Federal Constitution regarding A2’s citizenship. The only decision was the refusal under Article 15A of the Federal Constitution.

Therefore, I accepted the AG’s 1st Objection that there was no decision under Article 14 of the Federal Constitution for the court to review and that the misalignment was fatal as judicial review is a mechanism to challenge the lawfulness of an actual decision made by a public authority, and not to obtain advisory declarations or rulings on hypothetical entitlements that were never decided by the authority in question. 2nd Objection: Whether there was an arguable case under Article 14(1)(b) of the Federal Constitution

The Applicants do not dispute that the Mother is not a citizen of Malaysia and that A2 is an illegitimate child.

The SFC cited the cases as decided by the Federal Court in CTEB & Anor v Ketua Pengarah Pendaftaran Negara, Malaysia & Ors [2021] 4 MLJ 236 and 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 to support the legal principle that the constitutional requirements for citizenship must be met at the time of birth and a later marriage cannot cure the initial inability to meet those requirements.

In CTEB’s case it was held that a child born out of wedlock to a Malaysian father and non-citizen mother was not entitled to citizenship under Article 14(1)(b) of the Federal Constitution by reason of illegitimacy, despite subsequent legitimation by marriage. No amount of genetic evidence or acknowledgment can override the constitutional definition and a child born out of wedlock simply cannot acquire citizenship by operation of law through the biological father.

There was no submission by the Applicants on this point of law.

In view of the above, I was persuaded by the 2nd Objection by the AG that there was no arguable case under Article 14(1)(b) of the Federal Constitution. 3rd Objection: Whether there was circumvention of Article 15A of the Federal Constitution and an abuse of the judicial review process

As mentioned earlier, the learned counsel for the Applicants conceded that the application pursuant to Article 15A of the Federal Constitution was not the decision under challenge.

In the circumstances, the AG took the position that the judicial review mechanism was being misused as a collateral attack on an unchallengeable discretionary decision. The Applicants have repackaged their case from a failed exercise of discretion in their favour under Article 15A of the Federal Constitution to an alleged entitlement by law under Article 14(1)(b) of the Federal Constitution. By attempting to circumvent Article 15A, the Applicants were essentially asking the court to “create a decision” where none exists, solely because they were aggrieved with the outcome of the application pursuant to Article 15A.

There was similarly no persuasive arguments by the Applicants to dissuade the court from accepting the 3rd Objection. The manner in which the Applicants had framed the application and Statement pursuant to O. 53, r. 3(2) of the RC 2012 was an abuse of the judicial review process which must be frowned upon by the court.

Based on the foregoing reasons, the AG’s objection was allowed and thus, the application for leave to apply for judicial review was dismissed with no order as to costs. DATED: 23.1.2026 (ALIZA SULAIMAN) JUDGE HIGH COURT IN MALAYA KUALA LUMPUR (BKK1) Solicitors for the Applicants: Marcus Lee (Lee Min Yau with him) Messrs. Wong & Co.