Elaine Leong Ee Ling v Pendaftar Besar Warganegara (W-01(A)-614-09/2024)

1 IN THE COURT OF APPEAL OF MALAYSIA IN PUTRAJAYA (APPELLATE JURISDICTION) CIVIL APPEAL NO: W-01(A)-614-09/2024 BETWEEN ELAINE LEONG EE LING … APPELLANT

1. AND

2. PENDAFTAR BESAR WARGANEGARA

3. MENTERI DALAM NEGERI, MALAYSIA KERAJAAN MALAYSIA … RESPONDENTS (In The High Court of Malaya at Kuala Lumpur In the Federal Territory of Malaysia (Special Powers Division) Judicial Review Application No. WA-25-140-05/2023 Between Elaine Leong Ee Ling … Appellant

1. And

2. Pendaftar Besar Warganegara

3. Menteri Dalam Negeri, Malaysia Kerajaan Malaysia … Respondents CORAM AZHAHARI KAMAL BIN RAMLI, JCA FAIZAH BINTI JAMALUDIN, JCA HAYATUL AKMAL BINTI ABDUL AZIZ, JCA 2 SUPPORTING JUDGMENT Introduction [1] I have had the advantage of reading the judgment of my learned sister Hayatul Akmal binti Abdul Aziz JCA. I agree with the judgment and the order proposed. I add these brief reasons only to address the Appellant’s contention that the alteration of her birth certificate and identity documents amounted to an unlawful deprivation or revocation of Malaysian citizenship. My learned brother, Azhahari Kamal bin Ramli JCA and my learned sister Hayatul Akmal binti Abdul Aziz JCA have read this judgment in draft and agree with it. [2] I agree with my learned sister that this appeal concerns an asserted entitlement to citizenship by operation of law under Article 14(1)(b) of the Federal Constitution. It is not an application for citizenship by registration, special registration or naturalisation under Articles 15, 15A or 19. [3] I agree that the Appellant had not established entitlement to citizenship by operation of law under Article 14(1)(b), whether under section 1(a) read with section 19B, or under section 1(e) read with section 2(3) of Part II of the Second Schedule. I do not repeat that analysis. My additional reasons are directed only to the Appellant’s alternative argument that she had been unlawfully deprived of citizenship. The alleged deprivation or revocation of citizenship [4] Article 27 of the Federal Constitution applies before an order is made under Articles 24, 25 or 26 depriving a person of citizenship. It is an important constitutional safeguard. But it presupposes a process of deprivation in respect of a person whose citizenship is being taken away. 3 [5] There is a distinction between deprivation of citizenship and correction of a record which had earlier reflected citizenship on the basis of information later found to be incorrect. If a person is constitutionally a citizen, citizenship cannot be taken away by administrative amendment of a birth certificate. In that case, the safeguards in Part III of the Federal Constitution must be observed. [6] But where the constitutional requirements for citizenship by operation of law have not been established, the earlier issuance of a birth certificate or MyKad cannot itself create citizenship. Those documents are evidential. They are not the source of citizenship. For citizenship by operation of law, the source is the Federal Constitution. [7] The original birth certificate and MyKad were issued on the basis of information given by LSW and LEL that they were the Appellant’s biological parents. That information was later disclosed to be incorrect. Once the parental particulars were corrected to “Maklumat Tidak Diperolehi”, the basis on which citizenship had earlier been reflected in the record no longer stood. [8] I do not accept the proposition that an earlier administrative record of citizenship, without more, is conclusive of citizenship by operation of law. To hold otherwise would make administrative documentation the source of citizenship. That would invert the constitutional order. The administrative record must conform to the Constitution, not the other way round. [9] This is not to suggest that JPN may deprive a citizen of citizenship by amending a birth certificate. If citizenship by operation of law is established, administrative amendment cannot remove it. The present 4 appeal fails because the Appellant has not established that she was a citizen by operation of law at birth. [10] It follows that the Appellant’s alternative argument based on Article 27 cannot succeed. The alteration of the Appellant’s birth certificate and identity documents, and the Respondents’ refusal to treat her as a citizen, did not amount to unconstitutional deprivation of citizenship under Articles 24 to 27. Conclusion [11] I agree that the appeal should be dismissed and that the decision of the High Court should be affirmed. I also agree that there should be no order as to costs. Dated: 10 June 2026 -SGD- (FAIZAH BINTI JAMALUDIN) JUDGE COURT OF APPEAL MALAYSIA 5 COUNSEL: For the Appellants: N. Surendran Latheefa Koya Shahid Adli bin Kamarudin Wan Nabilah Dina binti Wan Zamri [Messrs. Daim & Gamany] For the Respondent: Nur Hafizza binti Azizan Imtiyaz Wizni Aufa binti Othman [Jabatan Peguam Negara]