Tan Kar Chai v Pendaftar Besar Kelahiran dan Kematian Jabatan Pendaftaran Negara Malaysia (W-01(A)-408-06/2024)

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1 IN THE COURT OF APPEAL OF MALAYSIA IN PUTRAJAYA (APPELLATE JURISDICTION) CIVIL APPEAL NO: W-01(A)-408-06/2024 BETWEEN 5 1.

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(1) Tan Ngan Hua declared herself as the mother of the 2nd appellant and details about the father, “Maklumat Tidak Diperolehi”.

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(2) On the information given, the 2nd appellant is a citizen by operation of law under Article 14(1)(b) read with section 1(a) of Part II of the Federal Constitution. 70

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(3) As a result, the Registrar General of Births and Deaths (Registrar) issued a birth certificate with registration number No. AW30718, which stated the status of citizenship “Warganegara”. 75

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(1) when the facial features and skin colour of the 2nd appellant) has no resemblance to the mother (Tan Ngan Hua). 85

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(2) The NRD commenced an investigation and took statements from Tan Ngan Hua (Kand 5 PDF 126-129 – exhibit ZM-4).

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(3) The investigation revealed that Tan Ngan Hua was not the 90 2nd appellant's biological mother, and Tan Ngan Hua did not know who the biological parents were.

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(4) This meant that the information given by Tan Ngan Hua to register the birth using the said Form was false. This required a correction to be made to the register of births. 95 [7] Tan Ngan Hua:

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(1) Applied to correct the particulars of the register of births pursuant to section 27(3) of the Birth and Death 100 Registration Act 1957 (Act 299).

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(2) As a result of the change in information, a new birth certificate was issued to reflect the correct situation where the particulars of the biological parents were stated as 105 ‘Maklumat Tidak Diperolehi” and the status for citizenship was stated as ‘Belum Ditentukan’.

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(1) The 1st appellant (Tan Kar Chai) filed an application in the Sessions Court to adopt the 2nd appellant and for the issuance of a new birth certificate under section 25(2) of 115 the Adoption Act 1952 to reflect the adoption of the 2nd appellant by the 1st appellant.

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(2) A Third Birth (Certificate Serial Number 002204 XA) was issued on 20.12.2018 and stated the 1st appellant 120 (Warganegara) as the father of the 2nd appellant. However, the 2nd appellant's citizenship status remained as ‘Bukan Warganegara’.

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(1) The 1st appellant made an application under Article 15A 130 of the Federal Constitution (FC) for the 2nd appellant, who was then under the age of 21 years, to be registered as a citizen.

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(2) By a letter dated 04.10.2022 (Kand 5 PDF 114 exhibit T- 135 7), received by the 1st appellant on 10.11.2022, the appellants were informed that their application was dismissed without any reason given.

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(1) Dismissed the Judicial Review application and found that the appellants had failed to fulfil the requirements of s. 1(e) and s.2(3) of Part II, Second Schedule read with Art. 165 14(1)(b) of the FC to obtain citizenship by operation of law.

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(2) The HCJ found that the reliance on sections 9 and 25A of the Adoption Act 1952 is misconceived in law, and the 170 appellants have failed to satisfy the qualifications of section 1(a) of Part II, Second Schedule, read with Article. 14(1)(b) of the FC.

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(3) Concerning the application of CCH & Anor v Ketua 175 Pengarah Bagi Kelahiran dan Kematian Malaysia [2021] MLJU 2321, the HCJ found that it was not pleaded that the child was abandoned. 180

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(ii) Is the 2nd appellant is a citizen of Malaysia based on the reason that the 2nd appellant has been lawfully 195 adopted by the 1st appellant pursuant to the Adoption Order read with Sections 9 and 25A of the Adoption Act 1952 and Article 14(1)(b) and Part II section 1(a) of the Second Schedule of the FC and/or Article 15A of the FC?

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(iii) Was the 2nd Appellant abandoned at birth and has no knowledge of her biological parents?

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(1) The undisputed facts are that the 2nd Appellant was born in Malaysia and did not acquire citizenship of any other country within one year of her birth. 220

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(2) Under section 1(e) of Part II of the Second Schedule FC, a child born in Malaysia who is not a citizen of any country at birth is entitled to Malaysian citizenship by operation of law. Section 2(3) of Part II, Second Schedule of the FC only excludes such entitlement if the child acquired 225 foreign citizenship within one year, which did not occur in this case.

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(3) Section 1(e) does not require proof of the biological parents’ identity or nationality, unlike section 1(a) of Part 230 II of the Second Schedule.

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(4) To impose such a requirement would contradict the plain wording of the Constitution and defeat the legislative intent.

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(5) The counsel argued that reading additional conditions into section 1(e) would render it meaningless and contrary to established principles of constitutional interpretation. 240 [14] It was also argued that:

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(1) Requiring them to prove the absence of foreign citizenship amounts to forcing them to prove a negative fact, which the Federal Court has described as legally 245 incoherent.

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(2) Once the appellants established a prima facie case that the child was born in Malaysia and is stateless, the burden shifted to the respondents to prove that the child acquired 250 another nationality, which they failed to do. [15] The state authorities with investigative resources did not adduce any evidence that any foreign country recognises the 2nd appellant as its citizen. The absence of such evidence reinforces the 255 conclusion that she is stateless unless recognised as Malaysian:

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(1) Section 1(e) of Part II of the Second Schedule is a constitutional safeguard against statelessness, supported by parliamentary debates and Article 26B of the FC.

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(2) Denying citizenship in these circumstances would undermine the Constitution’s protective purpose and produce an unjust and irrational outcome (cited CTEB & Anor v Ketua Pengarah Pendaftaran Negara, Malaysia 265 & Ors [2021] 4 MLJ 236 and Karunairajah a/I Rasiah v Punithambigai a/p Poniah [2004] 2 MLJ 401, FC). Submission of the Respondents in a nutshell 270 [16] The learned Senior Federal Counsel (‘SFC’) submitted that:

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(1) The law does not treat someone as “not born a citizen of any other country” simply because they did not acquire another citizenship within one year of birth. 275

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(2) Article 14(1)(b) read with Section 1(e) of Part II of the Second Schedule reflects two principles of acquiring nationality, i.e., jus soli (right of the soil) and jus sanguinis (right of blood). 280

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(3) To succeed under this provision, a person must prove that their birth occurred within the Federation, and at the time of birth, he/she does not acquire citizenship of any other country through the lineage of biological parents. 285 [17] Citing Than Siew Beng & Anor v. Ketua Pengarah Jabatan Pendaftaran Negara & Ors [2017] 5 MLJ 662, this court unanimously held that Article 14(1)(b) of the FC encapsulates the requirement of citizenship by: 290

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(1) Jus soli, i.e. place of birth.

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(2) While para 1(e) of Part II of the Second Schedule of the FC (‘not born a citizen of any country’) encapsulates the requirement of citizenship by jus sanguinis, i.e. by blood 295 or lineage: “[23] Article 14(1)(b) of the Federal Constitution encapsulates the requirement of citizenship by jus soli i.e. place of birth, while para 1(e) of Part II of the Second Schedule of the Federal 300 Constitution (‘not born a citizen of any country’) encapsulates the requirement of citizenship by jus sanguinis i.e. by blood or lineage. [24] Thus, it would appear that the second appellant would need 305 to satisfy both the requirements of jus soli and jus sanguinis in order to fulfil the requirements of art 14(1)(b) and para 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, child) v 310 Pendaftar Besar Kelahiran dan Kematian, Malaysia [2016] 7 MLJ 717). “[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 315 the Federal Constitution, as expressed by the phrase, ‘who is not born a citizen of any country’. For the purposes of this requirement, the material time to determine the status of the second appellant’s lineage is at the time of his birth. ….. 320 [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 325 appellant’s birth certificate (‘exhibit TSB6’), contained no information pertaining to the biological parents and the relevant particulars were endorsed with ‘Maklumat Tidak Di perolehi’.” 330 [18] The determining point of time for acquisition of citizenship by operation of law under section 1 Part II Second Schedule of the FC lies in all the paragraphs (a) – (e) where it uses the words “at the time of the birth” and “born”. This is also in line with the legal principle laid down by the majority decision of the Federal Court in the case of 335 CTEB & Anor v Ketua Pengarah Pendaftaran Negara, Malaysia & Ors (supra), 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 340 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.” [19] Based on the NRD's investigation:

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(1) Tan Ngan Hua admitted that the 2nd appellant is not her biological daughter.

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(2) She took the 2nd Appellant from an Indonesian woman, 350 and at the time she got the 2nd appellant, the registration of birth was completed.

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(3) The registration of the 2nd appellant was not done in accordance with section 9 of the Births and Deaths 355 Registration Act 195, which provides: “9. Where any living new-born child is found exposed, it shall be the duty of the person finding the child, and of any person in whose charge the child may be placed, to give to the best of 360 his knowledge and belief to the Registrar, before the expiration of fourteen days from the date on which the child was found, such information of the particulars required to be registered concerning the birth of the child as the informant possesses, and in the presence of the Registrar to sign the 365 register: Provided that the giving of information and the signing of the register by any one of the said persons shall act as a discharge of any duty under this section of any other of them.” 370 [20] The appellants claimed they lacked information on the biological parents, but there was no evidence of reasonable efforts to trace them and no supporting affidavit from Tan Ngan Hua: 375

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(1) The fact that Tan Ngan Hua had wilfully hidden the circumstances with respect to the 2nd appellant’s birth during the registration of her birth created major difficulty for the NRD. 380

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(2) More than 12 years have lapsed since the false information was provided by Tan Ngan Huan and/or the 1st appellant to the NRD before it was detected by the NRD; and 385

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(3) More than 22 years had lapsed before the alleged circumstances of the 2nd appellant’s birth were averred by the 1st appellant in the Affidavit in Support.

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(4) The appellants and Tan Ngan Hua hid the true 390 circumstances of the child’s birth despite being able to inform the NRD, and this concealment/false information only surfaced during the MyKad application, causing major investigative difficulty for the NRD because of long delays (over 12 years and 22 years, respectively): 395

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(5) In this case, the 1st appellant is an adoptive father under the Adoption Act 1952 and is not a biological parent.

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(6) The biological parents’ particulars, citizenship, and marital status remained unknown and were not provided. 410 [21] It was further pointed out by the SFC that:

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(1) Although the 2nd appellant met some conditions (born after Malaysia Day; born in the Federation/Kuala 415 Lumpur), she failed the requirement to prove lineage to show she was not born a citizen of another country.

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(2) Without biological-parent information, it cannot be determined whether the child obtained another 420 citizenship; determining parents’ citizenship is necessary before treating the child as stateless.

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(3) Section 2(3) of Part II of the Second Schedule describes a presumption about timing: 425

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(4) The fact that biological parents remain unidentified does not entitle the 2nd appellant to maintain Malaysian 440 citizenship:

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(ii) “Section 1(e), Part II of the Second Schedule FC states the 475 following: “CITIZENSHIP BY OPERATION OF LAW OF PERSONS BORN ON OR AFTER MALAYSIA DAY 480 1. Subject to the provisions of this Part III of this Constitution, the following persons born on or after Malaysia Day are citizens of law, that is to say: …

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(iii) “Section 2(3) Part II of the Second Schedule FC states the following:

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(3) For the purposes of paragraph (e) of section 1, a person is to 490 be treated as having at birth any citizenship which he acquires within one year afterwards by virtue of any provisions corresponding to paragraph (c) of that section or otherwise.” [23] This legal principle is well established, and we do not wish to 495 elaborate any further:

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(1) To ascertain whether the 2nd appellant had discharged the burden that she was ‘not born a citizen of any country’, the HCJ would have to examine the facts and evidence of the 500 case as disclosed in the affidavits filed.

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(2) This, the learned HCJ has done.

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(3) We find that there is a comprehensive appreciation of the 505 evidence by the HCJ and application of the applicable law. [24] This court in Than Siew Beng & Anor v. Ketua Pengarah Jabatan Pendaftaran Negara & Ors (supra) held that as a matter of law, any person seeking to rely on art. 14(1)(b) read with section 1(e) 510 of Part II of the Second Schedule of the FC to establish citizenship by operation of law would have to establish the requirements of both jus soli and jus sanguinis. The court had explained that: “[23] Article 14(1)(b) of the Federal Constitution encapsulates the 515 requirement of citizenship by jus soli i.e. place of birth; while para 1(e) of Part 11 of the Second Schedule of the Federal Constitution (‘not born a citizen of any country’) encapsulates the requirement of citizenship by jus sanguinis i.e. by blood or lineage.” 520

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(1997) defines jus soli to mean: a right acquired by virtue of the soil or place of birth. Under this right, the nationality of a person is determined by the place of birth rather than parentage. Nationality is conferred by the state in which the 560 birth takes place and defines jus sanguinis to mean: a right of blood. Aright 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.” 565 [26] In the foregoing circumstances, it would appear that the 2nd appellant would need to satisfy both the requirements of jus soli and jus sanguinis in order to fulfil the requirements of Art. 14(1)(b) and para. 1(e) of Part II, Second Schedule of the FC. 570 [27] We agree with the learned HCJ that the question posed is whether the 2nd appellant has met these requirements, which is a question of mixed fact and law. To qualify the requirement to be a citizen by operation of law within the meaning of section 1(e) of Part II of the Second Schedule of the Federal Constitution, two criteria 575 must be met: the person is born in Malaysia on or after Malaysia Day (jus soli), and the person is not born a citizen of any country (jus sanguinis). [28] In determining whether the appellants have discharged the 580 burden that the 2nd appellant was 'not born a citizen of any country', we have examined the facts and evidence as disclosed in the affidavits filed. We refer to the affidavits and the relevant paragraph as follows: 585

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(1) Affidavit by the appellants affirmed on 13.01.2023, Kand 4 RR PDF pg. 4-10) averred at para 21 as follows: “21. Kami telah dinasihati oleh peguamcara kami dan dengan sesungguhnya percaya bahawa saya, Pemohon Kedua 590 adalah seorang warganegara Malaysia melalui operasi undang-undang menurut peruntukkan-peruntukkan seperti berikut: -

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Jadual Kedua Perlembagaan Persekutuan yang dibaca 600 bersama dengan Perintah Pengangkatan bertarikh 20.7.2017 dan Seksyen-seksyen 9 dan 25A Akta Pengangkatan 1952.” (2) Affidavit by the appellants affirmed on 09.09.2023 Kand 4 605 RR pg. 30-35) averred as follows: “6. TNH dan saya, Tan Kar Chai adalah adik-beradik dan TNH telah mendapatkan Tan Lai Ho daripada seorang perempuan yang tidak pasti kewarganegarannya sama ada 610 orang India atau Indonesian atas alasan perempuan tersebut mempunyai beberapa anak dan tidak lagi mampu untuk menyara bayi yang baru dilahirkan iaitu TLH. 7. TNH telah mengambil TLH sebagai anak beliau walau 615 bagaimanapun, beliau yang berpendidikan rendah tidak berpengetahuan dengan proses yang betul ataupun seharusnya yang diambil oleh beliau untuk pengambilan TLH sebagai anak beliau. 620 8. Pada masa itu, seorang nenek tua yang membantu TNH untuk mendapatkan sijil kelahiran TLH.” (3) Affidavit by the appellants affirmed on 06.11.2023, Kand 4 RR pg. 51-56) averred as follows: 625 “10. Sebagai balasan kepada perenggan 8(d) dan 8(e) dalam AJRR (3) tersebut, kami menyatakan seperti berikut: - (a) TNH bukan ibu kandung kepada Pemohon Kedua adalah fakta yang tidak dipertikaikan; dan 630 (b) Ia juga adalah fakta yang tidak dipertikaikan bahawa Pemohon Kedua lahir di Malaysia dan telah tinggal di Malaysia sejak kelahirannya. 635 11. Perenggan 9 dalam AJRR (3) tersebut adalah dinafikan dan saya telah dinasihati oleh peguamcara kami dan sesungguhnya percaya bahawa Pemohon Kedua melalui operasi undang-undang yang diperuntukkan di bawah Perkara 14(1)(b) Perlembagaan Persekutuan layak diiktiraf 640 sebagai warganegara Malaysia. Kami mengulangi perenggan 10 di atas.” [29] We find that the evidence before this court undeniably reveals: (1) That the biological parents of the 2nd appellant are 645 unknown to the 1st appellant and to Tan Ngan Hua (TNH). (2) In the circumstances, we agree with the HCJ’s findings, and we find that the 2nd appellant is not a Malaysian citizen by operation of law under Article 14(1)(b) read 650 together with sections 1(e) and 2(3) of Part II of the Second Schedule of the FC. (ii) Is the 2nd Appellant a Malaysian citizen by operation of law under Article 14(1)(b) read with sections 1(a) and 2(3) of 655 Part II of the Second Schedule of the Federal Constitution and/or Article 15A of the Federal Constitution by virtue of being adopted by the 1st appellant, read with together with sections 9 and 25A of the Adoption Act 1952? 660 Submissions of the Appellants in a nutshell [30] The 2nd appellant was legally adopted by the 1st appellant pursuant to an Adoption Order. And the post-adoption birth certificate issued under section 25A of the Adoption Act, 1952 (AA 1952), is the 665 only relevant and admissible evidence of parentage “for all purposes” (including citizenship): (1) The 2nd appellant ought to be recognised as a Malaysian citizen by operation of law under Article 14(1)(b) and the 670 Second Schedule, read together with sections 9 and 25A AA 1952. (2) “Parent/parents” in ordinary usage includes adoptive parents (Black’s Law Dictionary), and the FC does not 675 define or restrict “parents” to biological parents. (3) Madhuvita Janjara Augustin (Suing Through Next Friend, Margaret Louisa Tan) v Augustin Lourdsamy & Ors [2018] 4 CLJ 758 supports giving “parents” its 680 ordinary, common-sense meaning; the meaning may depend on the child’s circumstances and may be determined at the time the question arises (not strictly at birth). 685 (4) Accordingly, for an adopted child, parentage should be determined by reference to the post-adoption birth certificate properly issued under the AA 1952. (5) It would be contrary to the purpose of the AA 1952 (child 690 welfare or best interests) to confer parental rights/responsibilities yet tie citizenship to biological parents, potentially leaving the adopted child stateless or with different citizenship from adoptive parents. 695 [31] The Courts have recognised that: (1) Statelessness is not in a child’s best interests (citing Madhuvita), and Parliament’s amendment intent (2001) sought to protect adopted children and remove distinction 700 from natural-born children (explanatory statement and section 25A effect). (2) Broader constitutional approach: purposive interpretations that promote child welfare (e.g., Indira 705 Gandhi on “parent” including both parents in Article 12(4)). (3) Equality/fairness/proportionality under Article 8(1) (citing Alma Nuda Atenza and related authorities). 710 (4) Reading “biological” into section 1(a) Second Schedule FC would undermine equality before the law and introduce an impermissibly narrow/rigid constitutional meaning. 715 Submissions of the Respondents in a nutshell [32 ] An analysis of Article 14(1) (b) read together with section 1(a) of Part II of the Second Schedule of the FC establishes that a person 720 born on or after Malaysia Day will be entitled to Malaysian citizenship provided the following preconditions are fulfilled where a person was born within the Federation and whose parents one at least is at the time of the birth either a citizen or permanent resident in the Federation: 725 (1) Both provisions indicate clearly that the origin of the paternal and maternal side of the child must be ascertained, and the existence of marriage/registration of marriage must be proven, besides the place of birth for the 730 said child to qualify as a citizen by operation of law under Article 14 (1)(b) of the FC. (2) In short, the provision of Article 14(1) (b) read together with section 1(a) of Part II of the Second Schedule of the FC encompasses the twin concept of jus soli and jus 735 sanguinis. (3) These concepts were explained and applied by the Court of Appeal in the case of Pendaftar Besar Kelahiran dan Kematian, Malaysia v Pang Wee See & Anor (applying 740 on their behalf and as litigation representatives for Pang Cheng Chuen, a child) [2017] 3 MLJ 308, held as follows: “[29] In determining the citizenship of a person, two concepts are 745 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 birthright citizenship, is the right of anyone born in the territory of a state to nationality or citizenship. The 750 determining factor is the place or territory where a person was born. In the case of jus sanguinis, which in Latin means ‘right of blood’, it is a principle of nationality law by which citizenship is not determined by place of birth but by having one or both parents who are citizens of the state. Viewed 755 from the context of these two concepts, we are of the considered opinion that art 14(1)(b) read with s 1(a), Part II, Second Schedule of the Federal Constitution is a provision which is anchored on the elements of both the concepts of jus sanguinis and of jus soli, whereby citizenship of a person 760 is traceable to the place of birth namely, Malaysia, as well as Malaysian citizenship of one of the person’s parents (the right of blood) at the time of the person’s birth, in order to be a Malaysian citizen by operation of law, under art 14(1)(b) read with s 1(a), Part II, Second Schedule of the Federal 765 Constitution.” [33] The child's citizenship status will follow that of the legal parents, as provided under Section 7 of the Birth and Death Registration Act 1957. This court in Foo Toon Aik (Suing on His Own Behalf and 770 as Representative of Foo Shi Weh Child) v Ketua Pendaftar Kelahiran Dan Kematian, Malaysia [2012] 9 MLJ 573 held: "(1) Before a person can qualify as a citizen by operation of law, he must be born to a lawful parent under art 14 of the Constitution. The word 775 'parent' in Article 14 must refer to a lawful parent. The child here could not qualify as a citizen by operation of law because he was not born to a lawful parent (see paras 10-11). (2) The emphasis of the requirement under Article 14 has to be placed 780 on his birth status because Article 14 clearly refers to the fulfilment of the requisite conditions at the time of his birth. It could not be disputed that his birth status did not qualify him to be a citizen by operation of law (see para 11).” 785 [34] The court in Shamala Sathiyaseelan v. Dr Jeyaganesh C Mogarajah & Anor [2004] 2 CLJ 416 at page 422 define the meaning of “parent” based on the Black's Law Dictionary Abridged 6th Edn (Centennial Edition 1891-1991) which defines the word "parent" as "the lawful father or mother of a person" and the word "guardian" as 790 "a person lawfully invested with the power and responsibility for the care and management of the person or the estate or both of a child during its minority": (1) In this case, the 1st appellant is not the lawful parent of the 795 2nd Appellant. (2) The law is clear that there is a requirement of the lawful parent, in line with the concept of jus sanguinis. 800 (3) Furthermore, the material time to look at in order to consider the fact is “at the time of birth”. The Respondents submit that the Appellants' contention is obviously devoid of merit. 805 Evaluation Of The Evidence And The Parties’ Arguments [35] We refer to Article 14(1)(b) of the FC, read with Section 1(a) of Part II of the Second Schedule, which provides that for the acquisition 810 of citizenship by operation of law, the following three conditions must be satisfied: (1) The person was born on or after Malaysia Day. 815 (2) The person was born within the Federation; and (3) At the time of birth, at least one parent was a Malaysian citizen or permanent resident. 820 [36] The issue is whether the appellant's assertion that the word "parents" in Section 1(a), Part II, Second Schedule, FC includes adoptive parents, namely Tan Khar Chai, based on Sections 9 and 25A of the AA 1952: 825 (1) 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, this court held that sections 9 and 25A of the AA 1952 do not confer the adoptive 830 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: 835 "[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 840 proof that when he was born in this country, one of his parents must either be a citizen of Malaysia 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 845 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 850 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." 855 (2) In Ketua Pengarah Pendaftaran Negara & 2 Ors v Tan Jun Yan [2026] CLJU 689, it was observed as follows: “[29] We are therefore of the considered opinion that the phrase 860 "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 865 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 870 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 citizenship on 875 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 880 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 885 which retrospectively qualify a person such as Legitimacy Act or Adoption Act cannot be used to construe the qualification of that person." (3) In the present case, the learned HCJ said as follows: 890 “[37] I disagree with the submission by the applicants for the following reasons: (i) the submission fails to consider that the law on citizenship is exclusively provided in the Federal Constitution and nowhere else; (ii) the 895 qualifications in section 1(a) of Part II are not fulfilled in particular, citizenship is acquired at the time of birth and not at any other time, and (iii) the Adoption Act 1952 provides for adoptions and not citizenship. 900 [38] It is a governing principle that under Article 14(1)(b) a person is a citizen by operation of law only if that person has "the qualifications specified in Part II of the Second Schedule". Here, section 1(a) of Part II is relied upon by the applicants. Thus, in order to determine whether one qualifies as a citizen 905 can only be discerned from the qualification embedded in section 1(a). [39] Section 1(a) has set out two qualifications: (i) that the child was born in Malaysia; and (ii) that the child's parents, at least 910 one of them, is at the time of birth either a citizen or permanently resident in Malaysia. The keywords are "is at the time of birth". In this regard, the interpretation of section 1(a) given by the Federal Court in CCH is instructive: Section 1(a) of Part II very clearly adopts the concepts of jus 915 soli (citizenship based on birthplace) and jus sanguinis (citizenship based on blood relation).” [37] Anchored on the foregoing: 920 (1) We are of the considered view that the words “at the time of birth” refer to the 2nd appellant’s biological parents, and not Tan Kar Chair, who is deemed to be the parents under the AA 1952. 925 (2) To our mind, if the C intended an adopted child of non-citizen or permanent resident adoptive parents to automatically acquire Malaysian citizenship upon adoption, it would have said so expressly. 930 (3) We adopt the findings in Ketua Pengarah Pendaftaran Negara & 2 Ors v Tan Jun Yan (supra) that, since the AA 1952 is only a subsidiary legislation to the FC, it cannot be interpreted to fill what may be perceived as a gap in the Constitution. 935 (4) Thus, the AA 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. 940 (5) As such, the Adoption Act 1952 is not a legally competent instrument to confer citizenship on an adopted child under Article 14(1)(b) read with Section 1(a), Part II, Second Schedule of the FC. 945 We agree with the findings of the learned HCJ that the word "parents" in the section can only mean biological parents; we find there is no merit in this issue. 950 Alternatively, is the 2nd Appellant a citizen of Malaysia under Article 15A of the Federal Constitution? Submissions of the Appellants in a nutshell [38] The Appellants argue that: 955 (1) The 2nd Appellant should be granted Malaysian citizenship under Article 15A of the FC due to “special circumstances,” which they say are meant to be applied broadly and humanely, especially for vulnerable children. 960 (2) They emphasise that the 2nd Appellant is effectively stateless, has lived her entire life in Malaysia, and faces serious hardships without citizenship, including limited access to education, healthcare, employment, and legal 965 security. (3) They also contend that the prolonged delay and ultimate rejection of the citizenship application without reasons is unfair, disproportionate, and contrary to good 970 governance, particularly since there was no allegation of fraud, security risk, or abuse of process, and the decision gravely affects the child’s welfare. Submissions of the Respondents in a nutshell 975 [39] The learned SFC submitted that on 15.01.2019, the 1st appellant, on behalf of the 2nd appellant, applied for a Malaysian citizenship pursuant to Article 15A of the FC. Article 15A is non-justiciable by virtue of section 2 of Part III of the Second Schedule, 980 and on 4.10.2022, the application was not considered by the learned HCJ. [40] We refer to the FC, which provides: 985 (i) “Article 15A. 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 990 twenty-one years to be registered as a citizen” (ii) Part III of Second Schedule states the following: “Part III 995 SUPPLEMENTARY PROVISIONS RELATING TO CITIZENSHIP 1. The functions of the Federal Government under Part III of this Constitution shall be exercised by such Minister of that Government as the Yang di-Pertuan Agong may from time to 1000 time direct, and references in this Schedule to the Minister shall be construed accordingly 2. A decision of the Federal Government under Part III of this Constitution shall not be subject to appeal or review in any court.” 1005 [41] We agree with the finding of the learned HCJ when he said: “[59] In this regard, I am bound by the decision of the Court of Appeal in Madhuvita that was not overruled by the Federal Court in CTEB. 1010 Mary Lim JCA, in delivering the judgment in Madhuvita on this point, said: [27] Section 2 above stands as an ouster clause. Parliament, in all its wisdom, has seen it fit that decisions of the Federal 1015 Government under Part Ill of the Federal Constitution are not to be subject to appeal or review in any court. Now, as an ouster clause, and that will include such a clause cited in the Federal Constitution, which serves to limit and oust the jurisdiction of the courts, s. 2 must be read strictly. ... 1020 [28] It is quite clear from the carefully worded terms of s. 2 that the scrutiny of the court is only excluded where it concerns a decision of the Federal Government made under Part III of the Federal Constitution. It is apparent from the records of 1025 appeal that the court was not moved to hear an appeal or review of any decision made by the Federal Government under Part III, and that includes the Federal Government's rejection of the appellant's application for citizenship under the Act. 15A.... 1030 [29] ... It is only the decisions of the Federal Government under Part Ill that are not open to appeal or review in any court. [60] In the circumstances, this Court cannot review the decision 1035 rejecting the application.” [42] The provisions above confer power on the Federal Government, which power is exercised by the Minister pursuant to section 1 of Part III of the Second Schedule and section 2 of Part Ill of the Second 1040 Schedule that restricts the courts from questioning the decision of the Federal Government by way of repeal or review in any court. Hence, we find no merit in this issue. (iii) Was the 2nd Appellant abandoned at birth and has no 1045 knowledge of her biological parents? Submissions of the Appellants in a nutshell [43] It was argued that: 1050 (1) The 2nd appellant was abandoned by her biological mother to Tan Ngan Hua. (2) Citing in support the Federal Court determination in CCH 1055 & Anor v Pendaftar Besar Bagi Kelahiran dan Kematian, Malaysia [2021] MLJU 2321, FC, which found in favour of the adoptive parents, holding that the child, who was born and abandoned in a hospital in Cheras, is a citizen of Malaysia by virtue of his abandonment. As a 1060 result of the abandonment, the child is also presumed to be born to a mother who was a permanent resident of Malaysia pursuant to Article 14(1)(b) read with Part 111, Section 198, Second Schedule of the Federal Constitution. 1065 (3) And further submitted that Article 8(1) FC provides for the equality of all persons before the law and entitlement to equal protection of the law. 1070 [44] Section 1(e) of Part II of the Second Schedule is a catch-all provision intended to address the problem of statelessness among children born in Malaysia: (1) This legal safeguard is to prevent statelessness, which should not come as a surprise, as Article 26B FC also 1075 provides that the Federal Government shall not deprive an individual of citizenship if, as a result of the deprivation, the individual would not be a citizen of any country. (2) The intention to prevent statelessness in Article 26B FC is 1080 recognised by the Federal Court in CTEB & Anor v Ketua Pengarah Pendaftaran Negara, Malaysia & Ors (supra), which held: "[282] Traditionally, citizens and the size of that citizenry is 1085 reflective of the sovereignty enjoyed by any independent nation. Consistent with the foundational principles of citizenship universally accepted, nations grant citizenship on the existence of jus soli and jus sanguinis. Malaysia practices those principles and this is ensconced in Part Ill 1090 of the Federal Constitution, noting that the Federal Constitution recognises that statelessness is to be avoided-see for instance art 26B which, though a provision on deprivation or loss of citizenship categorically states that the Federal Government will not deprive 1095 citizenship if 'satisfied that as a result of the deprivation he would not be a citizen of any country'.". (3) Such an intention to prevent statelessness can also be seen in Part Ill Section 19B, Second Schedule FC, 1100 wherein any newborn child found abandoned is presumed to be born at the place of finding to a mother permanently resident in Malaysia: "19B. For the purposes of Part I or II of this Schedule any new 1105 born child found exposed in any place shall be presumed until the contrary is shown to have been born there of a mother permanently resident there and if he is treated by virtue of this section as so born, the date of the finding shall be taken to be the date of the birth." 1110 [45] It was submitted that: (1) This provision means that any newborn child who is found abandoned by the side of the road will be a citizen of 1115 Malaysia under Section 1(a) read with Section 198 Second Schedule FC. (2) The Federal Court in CTEB further recognises the constitutional presumption as to birth in Section 198 1120 Second Schedule FC: - "[65] Both ss 19A and 19B of Part III are constitutional presumptions as to births. Section 19A codifies in part the international principle of flag state jurisdiction and applies in 1125 relation to persons who are born on a vessel such that their birth there is attributed to the place of registration of the vessel. Section 19B applies in relation to children who are found abandoned in any given place, such that the place of abandonment is treated as their place of birth, and where 1130 their mother is also permanently resident there." It was asserted that: (1) It would be contradictory and inconsistent for newborn 1135 children who are found after being abandoned to be recognised as citizens, whereas the children who are left at hospitals, baby hatches, or with strangers by their mothers are not. 1140 (2) To ensure consistency and purpose, Section 1(e) read with Section 2(3) Second Schedule FC must be given its full effect and meaning without any reference to the child's biological parents. 1145 Submissions of the Respondents in a nutshell [46] The learned SFC submitted that even though the appellant in para 12 of the MOA stated that the child was abandoned by his parents, this issue was never raised by the appellant at the High 1150 Court. [47] The learned HCJ in his decision finds that the issue of the said child (2nd appellant) was abandoned, was not pleaded. Further, the evidence in the affidavits do not show that the 2nd appellant was 1155 abandoned within the meaning given by the Federal Court in CCH. Therefore, the principle of CCH does not apply to the facts and circumstances of this case, and it was dismissed. [48] Even though we agree with the learned HCJ's findings, for 1160 completeness, we will briefly discuss this issue. This court was faced with similar facts and issues in Ketua Pengarah Pendaftaran Negara & Ors v Tan Jun Yan [2026] CLJU 689. In that case: (1) On 23.10.2000, the plaintiff’s adoptive father (GC Tan) 1165 applied for the plaintiff’s birth certificate at NRD, declaring GC Tan and KF Wong as the plaintiff’s biological parents. (2) First birth certificate, issued by NRD, recording the plaintiff’s citizenship status as “Warganegara”. 1170 (3) On 23.10.2012, GC Tan applied for a MyKad for the plaintiff. (4) The NRD became suspicious of the application because 1175 they observed no facial similarities between the plaintiff and his purported biological parents, GC Tan and KF Wong. (5) Upon investigation and admissions, including recording 1180 statements, GC Tan and KF Wong admitted the plaintiff was not their biological child, stating the plaintiff had been taken in after being found abandoned at a temple. (6) The NRD revoked the identity card application following 1185 the admissions. (7) Then, upon GC Tan’s application to amend the birth record, the NRD issued a second birth certificate correcting parent particulars and changing citizenship 1190 status to “Belum Ditentukan”. (8) On 20.01.2014, the plaintiff was adopted by GC Tan and KF Wong pursuant to an Adoption Order under the AA 1952. 1195 (9) A third birth certificate was issued, classifying the plaintiff as “Bukan Warganegara”, citing the inability to provide details of the biological parents’ citizenship and marital status. 1200 (10) In Tan Jun Yan’s case, this court has meticulously ventilated the legal principles regarding adoptive parents and the principles laid by the case of CCH as follows: 1205 “[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: 1210 (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 1215 Malaysian citizen or permanent resident. [18] Section 19B of Part III of the Second Schedule further provides that a newborn 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 1220 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 1225 mean: "The term 'found exposed' is interpreted broadly to include abandoned newborn left in places such as hospitals, temples, baby hatches, public toilets, etc." [20] The Federal Court in CCH (supra) interpreted "found 1230 exposed" broadly to cover abandoned newborns, 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 1235 at the place of finding (jus sanguinis); and (ii) the date of the finding is treated as the date of birth.” [49] We applied the foregoing principles, as ventilated in Tan Jun Yan’s case, to the present case. During the investigation by the NRD 1240 (Kand. 5 PDF 126-129), Tan Ngan Hua, in her evidence, said: “S1: SIAPAKAH TAN LAI HO? J1: ANAK ANGKAT 1245 S2: DEKAT MANA KAMU AMBIL TAN LAI HO? J2: DEKAT RUMAH SAYA. DIA DATANG KE RUMAH SAYA NAK BAGI ITU BUDAK KEPADA SAYA SEBAB DIA ADA BANYAK 1250 ANAK. TAK ADA DUIT NAK JAGA ITU BUDAK. SAYA PUN AMBIK DAN JAGA SAMA DIA. S3: KAMU KENAL TAK SIAPA IBU KANDUNG DIA? 1255 J3: TAK KENAL. ITU MAK DIA YANG KASI ITU BUDAK SAMA SAYA TAPI SAYA TAK KENAL. S4: KAMU TAHU TAK MAK TAN LAI HO ORANG APA? J4: INDONESIA. SAYA TAHU DARI CARA DIA ADA CAKAP. 1260 S5: KAMU TAHU TAK TAN LAI HO DILAHIRKAN DI MANA? J5: TAK TAHU 1265 S6: SIAPA YANG BUAT SURAT BERANAK TAN LAI HO? J6: SATU ORANG TUA ADA TOLONG BUAT. SAYA TAK TAHU APA NAMA DIA. SAYA PUN TAK TAHU NAK BUAT ITU SURAT BERANAK. ITU ORANG PUN SUDAH MATI. 1270 S7: ADA BAGI DUIT TAK KEPADA SESIAPA? J7: TAK ADA BAGI APA-APA. 1275 SB: BOLEH CARI TAK IBU KANDUNG TAN LAI HO? J8: TAK BOLEH CARI. SEMUA SUDAH TAK TAU” [50] The above investigation reveals that: 1280 (1) The 2nd appellant was not abandoned but was properly handed over to Tan Ngan Hua by the biological mother who is not a known Malaysian nor a permanent resident of Malaysia. 1285 (2) And we find there was too long a gap between the registration of the said birth (first birth certificate and the Adoption Order). 1290 (3) 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. 1295 (4) In the present case, Tan Ngan Hua said the biological mother was believed to be an Indonesian from the way she spoke. 1300 Accordingly, we are of the considered opinion that the appellants have failed to satisfy the essential prerequisite under Section 19B of Part III of the Second Schedule. Without this presumption, the requirements of Section 1(a) are not met, and the burden does not shift to the respondents. 1305 F. CONCLUSION [51] Until the appellants produce evidence establishing the 2nd appellant’s lineage and the citizenship status of her biological parents 1310 at the relevant time, the constitutional requirements of jus sanguinis are not met. Consequently, she cannot be recognised as a Malaysian citizen by operation of law. For these reasons, we dismissed the appeal and affirmed the learned HCJ's decision. We make no order as to costs. 1315 Dated 21 April 2026 Hayatul Akmal Abdul Aziz 1320 Judge Court of Appeal Counsels: 1325 For the Appellant: Tan Keen Cheong together with Khor Chai Hoong Messrs Tang, Khor & MP Leong 1330 For the respondent: Zairani binti Tugiran Senior Federal Counsel Attorney General’s Chamber 1335