Schedule
Schedule FC, the burden of proof to qualify the applicability of Section 1(e) rests upon the Defendants if they assert that a person acquired any foreign citizenship within one year after birth. (refer to Section 101 and 102 of the Evidence Act 1950) S/N dBjbjJMdhUGfsV6vKpuCfQ viii. The Plaintiff submits that a child born in Malaysia to parents, one of whom is at the time of birth permanently resident, is a citizen by operation of law under Article 14(1) (b) and Part II Section 1(a) of the Second Schedule of the Federal Constitution. viii. As for the definition of “parents”, the Plaintiff submits that the ordinary meaning ought to be given to the word “parent” in Section 1(a) Second Schedule FC (also refers to Black’s Law Dictionary (Tenth Edition, 2014). The Plaintiff’s submission is supported by the Court of Appeal in Madhuvita Janjara Augustin (melalui rakan sahabatnya Margaret Louisa Tan) v Ketua Pendaftar Kelahiran dan Kematian, Malaysia & Ors [2018] 1 MLJ 307 wherein it was noted that the Federal Constitution does not define, qualify or restrict the meaning of the word “parents” to biological parents, adopted parents, lawful parents or even surrogate parents. Based on the ordinary meaning of the word “parent” and the interpretation by the Court of Appeal, the word “parents” in Section 1(a) Second Schedule FC cannot be restricted narrowly to mean only the child’s biological parent or parents at the time of the birth. Such a narrow interpretation would certainly conflict with the Court of Appeal’s decision in Madhuvita Janjara Augustin. S/N dBjbjJMdhUGfsV6vKpuCfQ ix. The Plaintiff submits that she is a Malaysian citizen by operation of law under Section 1(a) Second Schedule FC by virtue of being born to a father who was a permanent resident at the time of the Plaintiff’s birth. x. The Plaintiff submits that the Plaintiff’s right to citizenship under Section 1(a) Second Schedule FC is not dependent on her biological parents’ marital status (refer to Ong Xin Tong v Pendaftar Besar Kelahiran dan Kematian Malaysia & Anor [2022] 6CLJ 274. [6] In conclusion, the Plaintiff submits that she is a citizen of Malaysia by operation of law by virtue of : i. The Plaintiff’s birth within the Federation pursuant to Section 1(e) Second Schedule FC; and/or ii. The Plaintiff whose parents one at least i.e Yahya bin Balan is and was a permanent resident at the time of the Plaintiff’s birth pursuant to Section 1(a) Second Schedule FC. D. DEFENDANT’S REPLY [7] The learned SFC's submissions, in a nutshell, are as follows: i. There are 4 ways of acquiring Malaysian citizenship, namely: (a) operation of law (Art. 14); S/N dBjbjJMdhUGfsV6vKpuCfQ (b) registration (Arts. 15, 15A, 16, 16A and 18) (c) naturalization (Art. 19): or (d) incorporation of territory (Art.22) At the outset, it is pertinent to note that the law on citizenship is exclusively provided under the FC, both procedurally and substantially. It means that the law on citizenship as provided in the FC is to be interpreted “not in the like manner in which other statutes are normally interpreted. In relation to the Federal Constitution, all other statutes are subsidiary legislation… It is not to be interpreted by reference to other statutes, albeit they were passed by Parliament.” (see CTEB & Anor v Ketua Pengarah Pendaftaran Negara, Malaysia & Ors [2021] 4MLJ 236 (FC) ; Pendaftar Besar Kelahiran dan Kematian, Malaysia v Pang Wee See & Anor (applying on their behalf and as litigation representatives for Pang Chen Chuen, a child) [2017] 3 MLJ 308 (COA) ii. It is the Defendant’s submission that the Plaintiff is not a citizen of Malaysia by operation of law for failing to fulfil the requisites under Article 14(1)(b) of the FC and other relevant provisions, which represent the requirement of jus soli and jus sanguinis. S/N dBjbjJMdhUGfsV6vKpuCfQ Non-Applicability of Article 14(1)(b) read with Sections 1(eo) and 2(3) Part II, 2nd Schedule of FC iii. The Defendants submit that the Plaintiff does not fall within the category of persons contemplated as stateless under the aforesaid provisions of the FC. The lineage of the Plaintiff is at the time of her birth is traceable and attributable due to the fact that her biological father, Yahya Balan, who is an Indonesian descent and a permanent resident of Malaysia dan her biological mother, Norhidani binti Dahlan, an Indonesian citizen of whom has never attained Malaysian citizenship. Both of them were not married at the time of the Plaintiff’s birth since there is no valid or legally recognized record of marriage between Yahya bin Balan and Norhidani binti Dahlan found in JPN’s system. Accordingly, the Plaintiff was born out of wedlock and is therefore an illegitimate child. (iv) Section 1(e), Part II, Second Schedule of the FC is applicable only in circumstances where the lineage to the biological parents (ie , the identity, citizenship, and marital status of the S/N dBjbjJMdhUGfsV6vKpuCfQ biological parents) cannot be identified or established by the person claiming citizenship. (v) The Defendants submit that the Plaintiff may have fulfilled the first two qualifications under Article 14(1) (b) Second Schedule, Part II of the FC under citizenship by operation of law of persons born on or after Malaysia Day. The two qualifications that the Plaintiff may have fulfilled is she is a person who was born on or after Malaysia Day (she was born on 24.11.1990), she was born within the Federation of Malaysia (jus soli) (she was born in Mentakab, Pahang). However, the Defendants submits that Plaintiff may have not fulfilled the 3rd qualification which requires the applicant (Plaintiff herein) not born a citizen of any country (jus sanguinis). (vi) Satisfaction of this requirement necessitates proof of lineage through the relationship of the person to biological parents at the time of birth. (refer to Than Siew Beng & Anor v Ketua Pengarah Jabatan Pendaftaran Negara & Ors [2017] 5 MLJ 662; Lim Jen Hsian & Anor v Ketua Pengarah Jabatan Pendaftaran Negara & Ors [2018] 6MLJ 548). S/N dBjbjJMdhUGfsV6vKpuCfQ Lineage is determined by the identity, citizenship and marital status of one’s biological parents at the time of birth. Where no evidence is adduced to establish these factors, the third requirement under Section 1 (e), part II, 2nd Schedule of the FC is rendered not fulfilled. The duty to prove that she was “not born a citizen of any country” at the time of birth lies with the Plaintiff. (vii) Thus, if a person was born out of wedlock, such person is an illegitimate person at the time of birth, and the lineage could only be traceable to the biological mother and could not be traceable to the biological father. (refer to Section 17, Part III, 2nd Schedule of the FC; Lim Jen Hsian (supra)( COA) (viii) There is no valid or legally recognized record of marriage between Yahya bin Balan and Norhidani binti Dahlan exits in the records of the JPN. The Plaintiff had not adduced any evidence in her affidavits to show that there was a legal marriage that took place between her parents at the time of her birth. Therefore, the Plaintiff was born out of wedlock and is therefore regarded as an illegitimate child and her S/N dBjbjJMdhUGfsV6vKpuCfQ citizenship is to follow that of her biological mother’s citizenship ie Indonesia. (ix) The Defendants submits in the absence of evidence to the contrary, the Plaintiff has failed to discharge the burden of proof in respect of the 3rd qualification – that she was not born a citizen of another country. This is because her lineage, including the identity, citizenship and marital status of her biological mother has been clearly established from the outset. (x) Mere assertion that the Plaintiff was abandoned by her biological parents at the age of one and subsequently raised by her uncle does not establish that she was “a new born, abandoned and found exposed”, nor that there was adoption by her uncle and thus rendered her stateless. This is misconceived in law and in facts. (xi) Further to that, the reliance of the deeming provision of Section 2(3), Part II, 2nd Schedule of the FC is wholly misplaced as the said provision does not automatically grant Malaysian citizenship under Section 1(e), Part II, Second S/N dBjbjJMdhUGfsV6vKpuCfQ Schedule of the FC based solely on an assertion that the Plaintiff did not acquire citizenship of any foreign country within one year of her birth. Section 2(3) of Part II, Second Schedule of the FC intends to treat any citizenship acquired within the first year after birth as if it had been acquired at birth. This provision functions as a presumption, designating any citizenship obtained within the first year of life as being acquired at the time of birth. (xii) Section 2(3), Part II, Second Schedule of the FC does not provide that a person who fails to acquire any citizenship within one year of birth is thereby deemed “not born a citizen of any country” under Section 1(e) of the same Schedule. (refers to CTEB & Anor v Ketua Pengarah Pendaftaran Negara Malaysia & Ors [2021] 4 MLJ 236 (FC) (xiii) In the absence of any evidence that the Plaintiff acquired the citizenship of another country within one year of her birth, the Defendants submit that Section 2(3), Part II, Second Schedule of the FC is not applicable in this case. The Plaintiff is not a citizen of Malaysia by operation of law under Article 14(1)(b) of the FC S/N dBjbjJMdhUGfsV6vKpuCfQ Issue of Illegitimacy – Non-fulfilment of requirement under Art. 14(1)(b) read with Sections 1(a), Part II, 2nd Schedule of FC (xiv) Acquisition of citizenship by operation of law under Art. 14(1)(b) of the FC read with Section 1(a), Part II Second Schedule of the FC is anchored on both concepts of jus soli and jus sanguinis (xv) Based on Art. 14(1) (b) of the FC read with Section 1(a), part II, Second Schedule of the FC, it is clear that for a person to be Malaysian citizen by operation of law pursuant to these provisions , the requisite qualifications to be fulfilled are: (a) The person was born on or after Malaysia Day; (b) The person was born within the Federation; and (c) At the time of the person’s birth one of the parents is a Malaysian citizen or permanently resident in the Federation. (xvi) The word “parents” in Section 1(a), Part II, Second Schedule of the FC refers to biological parents and does not refer to adoptive parents. Apart from that. The marital status of the biological parents of the person at the time of his birth must S/N dBjbjJMdhUGfsV6vKpuCfQ also be ascertained. This is because if the person is born out of wedlock, thus illegitimate at the time of his birth, the word “parents” is to be construed as mother. (refer to Section 17, Part III, Second Schedule of the FC. Therefore, for a person to fulfill the third qualification ie at the time of the person’s birth, one of his parents is a Malaysian citizen or permanently resident of the Federation, he must prove that one of his biological parents (if he was born legitimate) or his biological mother (if he was born illegitimate) is a Malaysian citizen or permanently resident in the Federation. (xvii) In the present case, despite fulfilling the first two qualifications alluded to earlier, it is not disputed that there is no evidence to prove the 3rd qualification ie the marital status of the Plaintiff’s biological parents. Thus, having been born illegitimate, Section 17, Part III, Second Schedule of the FC applies and thus the Plaintiff’s citizenship cannot follow that of her biological father who is a permanent resident of Malaysia but that of her biological mother who is an Indonesian citizen. It is clear that the Plaintiff is not a citizen of Malaysia by operation S/N dBjbjJMdhUGfsV6vKpuCfQ of law under Art. 14(1) (b) of the FC read with Section 1(a) , Part II, Second Schedule of the FC. E. FINDINGS OF THE COURT [8] The Plaintiff essentially sought for a declaration that she is a Malaysian citizen by ‘operation of law” under the following provisions of the Federal Constitution (FC): (i) Article 14(1)(b) read with Sections 1(e) and 2(3), Part II Second Schedule of FC – this implies that the Plaintiff is presently stateless and ought to be regarded as a citizen by operation of law; and or (ii) Article 14(1)(b) read with Section 1(a), Part II, 2nd Schedule of FC – this in effect declares that either one of the biological parents as a citizen or a permanent resident at the time of her birth. (iii) A declaration that the Plaintiff’s birth certificate (Register No : 1657560, Serial No : 062862XA) dated 14.1.2022 issued by the 1st Defendant which registered the Plaintiff as a non-citizen instead of a citizen of Malaysia is an unlawful violation of the Plaintiff’s rights as a citizen of Malaysia; and S/N dBjbjJMdhUGfsV6vKpuCfQ (iv) An order that the Defendants reissue the Plaintiff’s birth certificate dated 14.1.2022 and register the Plaintiff as a citizen of Malaysia within 14 days from the date of this order. [9] The relevant legal provision: (i) “Article 14(1) (b) FC provides : Citizenship by operation of law 14(1) Subject to the provisions of this Part, the following persons are citizens by operation of law, that is to say: ……………. (b) every person born or after Malaysia Day and having any of the qualifications specified in Part II of the Second Schedule.” (ii) “Section 1(e), Part II of the Second Schedule FC states the following: “CITIZENSHIP BY OPERATION OF LAW OF PERSONS BORN ON OR AFTER MALAYSIA DAY 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: S/N dBjbjJMdhUGfsV6vKpuCfQ ……… (d) every person born within the Federation who is not born a citizen of any country otherwise than by virtue of this paragraph.” (iiii) “Section 2(3) Part II of the Second Schedule FC states the following : (3) For the purposes of paragraph (e) of section 1, a person is to be treated as having at birth any citizenship which he acquires within one year afterwards by virtue of any provisions corresponding to paragraph © of that section or otherwise. [10] For a person to be a Malaysian citizen by “operation of law” under Article 14 of the FC, as submitted by the learned SFC, all requisite qualifications must be met at birth. The Federal Court in CTEB & Anor v Ketua Pengarah Pendaftaran Negara , Malaysia & Ors [2021] 4 MLJ 236 said as follows: “[128] On of the four categories, the operation of law citizenship is almost automatic. One either fits the given criteria under the FC S/N dBjbjJMdhUGfsV6vKpuCfQ or one does not. The criteria are clearly stipulated in the FC and it does not require any exercise of discretion by the authority. [129] By operation of law, therefore entails a situation where at birth the person’s status of citizenship will be so determined. It is a matter of birthright. This legal position is also as stated by Emeritus Professor Datuk Dr Shad Seleem Faruqi, in his book Our Constitution(Sweet & Maxwell), Thomson Reuters 2019) at pp 178 -179. In practical terms, a birth certificate will be issued right away upon registration of such birth. While the other three categories of citizenship by registration and naturalization require an application to the authorities upon meeting the necessary conditions imposed under the FC (see Suffian An Introduction to the Constitution of Malaysia (3rd Ed, Pacifica Publications 2007) at pp 330 – 337) ………………….. [132] Citizenship by operation of law is not peculiar only to Malaysia. Many countries in the world recognize this principle of citizenship, based on its own set of criteria as well as the jus soli and jus sanguinis rule. Hence, it is safe to conclude that whether one is qualified as a citizen by operation of law naturally must be discerned from the criteria as embedded in the FC itself, upon the true construction of the relevant provisions. ………….. S/N dBjbjJMdhUGfsV6vKpuCfQ [194] Concluding my view and discussions, I am clear in my mind and reinforced in my view, that the qualifications of acquiring citizenship by operation of law, must be met at birth. And if the qualifications are not met, this court is not at liberty to add and subtract any other or qualifications which the FC states otherwise. [11] In conclusion, to acquire qualifications for citizenship by operation of law under Article 14(1)(b) of the FC, read together with Section 1, Part II of the Second Schedule, are founded on the principles of jus soli (right of the soil) and jus sanguinis (right of blood). These concepts were explained by the Court of Appeal 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: “[29] in determining citizenship of a person, two concepts are 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 birth right citizenship, is the right of anyone born in the territory of a state to nationality or citizenship. The determining factor being the place or territory where a person was born. In the case of jus sanguinis, which in Latin means “right of blood”, is a principle of nationality law by which citizenship is not determined by place of birth but S/N dBjbjJMdhUGfsV6vKpuCfQ by having one or both parents who are citizens of the state….” “…..Viewed 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 concepts of jus sanguinis and of jus soli, whereby citizenship of a person 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 s1(a) , Part II, Second Schedule of the Federal Constitution.”. [12] The Plaintiff submits that pursuant to Article 14(1)(b) read with Section 1 Second Schedule FC, the Plaintiff is required to satisfy only one of the provisions under Section 1 Second Schedule FC, specifically either Section 1(a) or Section 1(e) Second Schedule FC. The authority for this is Ong Xin Tong v Pendaftar Besar Kelahiran dan Kematian Malaysia & Anor [2022] 6CLJ 274 : “[48] Assuming I am wrong in my findings in respect of the qualifications of the child under Part II , s.1(a), it must next be considered if the child satisfies the criterion under s.1(e). The child needs to only satisfies either one of this qualifications before this court.”….. S/N dBjbjJMdhUGfsV6vKpuCfQ [55] In the upshot, I find that the plaintiff has satisfied the qualification of Part II, S1(e) and ought to be entitled automatically by operation of law to be a Malaysian citizen. As is the case of the qualification under Part II, s.1(a), since the plaintiff has satisfied the first criteria of art. 14(1)(b), a satisfaction of either one or both of the criteria in s.1(a) or 1(e) would enable her to attain citizenship”. [13] The Plaintiff submits that a person born in Malaysia who remains stateless for a year after their birth is a Malaysian citizen by operation of law under Article 14(1)(b) and Part II Section 1(e) and Section 2(3) of the Second Schedule of the FC Section 1(e) Second Schedule FC reads as follows: “ PART II [Article 14(1)(b)] Citizenship by operation of law of persons born on or after 1. Malaysia Day 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: (e) every person born within the Federation who is not born a citizen of any country otherwise than by virtue of this paragraph. This Section 1(e) read together with Section 2(3) Second Schedule FC which the Plaintiff submits concerning the phrase “not born a citizen of any country” in determining the Plaintiff’s citizenship by S/N dBjbjJMdhUGfsV6vKpuCfQ operation of law. Section 2(3) Second Schedule FC states the following: “For the purposes of paragraph(e) of section 1 a person is to be treated as having at birth any citizenship of which he acquires within one year afterwards by virtue of any provision corresponding to paragraph (c) of that section or otherwise.” DOES THE PLAINTIFF FALL WITHIN THE CATEGORY PERSONS CONTEMPLATED AS STATELESS UNDER THE AFORESAID PROVISIONS OF THE FEDERAL CONSTITUTION? [14] The learned SFC submits that Article 14(1)(b) read with Sections 1(e) and 2(3) Part II, 2nd Schedule of FC is not applicable whereas the Plaintiff submits she is entitled to citizenship by virtue of birth within the Federation i.e Section 1(e) Second Schedule FC [15] The Court of Appeal in Than Siew Beng & Anor v Ketua Pengarah Jabatan Pendaftaran Negara & Ors [2017] 5 MLJ 662 held as follows: “[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 Constitution (“not born a citizen of any country”) encapsulates the requirement of citizenship by jus sanguinis i.e by blood or lineage.” S/N dBjbjJMdhUGfsV6vKpuCfQ Looking at Than Siew Beng (supra) decision, the burden was on the Plaintiff on the balance of probabilities, that she was “not born a citizen of any other country”. In the present case, the lineage of the Plaintiff at the time of her birth is traceable and attributable to: (a) her biological father, Yahya Balan, an Indonesian descent and a permanent resident of Malaysia; and (b) her biological mother, Norhidani binti Dahlan, an Indonesian citizen who has never acquired a Malaysian citizenship. There is another part of her parent’s relationship; both of them were not married at the time of her birth. No valid or legally recognized record of marriage between Yahya bin Balan and Norhidani binti Dahlan was found in JPN’s system. Accordingly, the Plaintiff was born out of wedlock and is therefore an illegitimate child. [16] Section 1(e), Part II, Second Schedule of the FC is applicable where the lineage to the biological parents (i.e identity,citizenship and marital status of the biological parents) cannot be identified or established by the person claiming citizenship. S/N dBjbjJMdhUGfsV6vKpuCfQ The Plaintiff in this case may have fulfilled two of the provisions envisaged under Article 14(1)(b) Part II, Second Schedule of FC that she was born on or after Malaysia Day i.e on 24.11.1990 and she was born within the Federation of Malaysia (her birth place in Mentakab, Pahang) (jus soli). The only remaining issue is whether “she was not born a citizen of any country (jus sanguinis). [17] The Court of Appeal in Tan Kar Chai & Anor v Pendaftar Besar Kelahiran dan Kematian, Malaysia & Ors [Civil Appeal No: W- 01(a)-408-06/2024] refered to the case of Lim Jen Hsian & Anor v Ketua Pengarah Jabatan Pendaftaran Negara & Ors [2017] 8 CLJ 412 : “[27] Article 14(1)(b) of the Federal Constitution encapsulates the requirement of citizenship by jus soli, i.e by the place of birth; while s.1€ of Part II of the Second Schedule of the Federal Constitution (“not born a citizen of any country”) encapsulates the requirement of citizenship by jus sanguinis, i.e by blood or lineage. [28] Thus, it would appear that the second appellant would need to satisfy both the requirements of jus soli and jus sanguinis in order to fulfill the requirements of art. 14(1)(b) and s.1(e) of Part II, Second Schedule of the Federal Constitution. S/N dBjbjJMdhUGfsV6vKpuCfQ [29] The doctrines of jus soli and jus sanguinis were explained in the case pf which was referred to in the case of Chin Kooi Nah v Pendaftar Besar Kelahiran dan Kematian Malaysia (supra) at p.764(CLJ) p. 747 (MLJ 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, the nationality of a person is determined by the place of birth rather than parentage. Nationality is conferred by the state in which the birth place takes placer 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.” [18] On a plain reading of the above authority, the Plaintiff 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. Therefore, the submission of the Plaintiff’s that she needs to only satisfy one of the provisions under Section 1 Second Schedule of the FC, specifically either Section 1(a) or Section 1(e) is misconceived. S/N dBjbjJMdhUGfsV6vKpuCfQ PHRASE “NOT BORN A CITIZEN OF ANY COUNTRY” [19] The Plaintiff bears the burden of proof to show that on balance of probabilities, a prima facie case that she “was not born a citizen of any country” at the time of birth. This 3rd qualification of she must prove that she was not born a citizen of any country can only be established through her lineage and through the relationship of her biological parents at the time of her birth. This was affirmed in the case of Than Siew Beng (supra) and Lim Jen Hsian & Anor v Ketua Pengarah Jabatan Pendaftaran Negara & Ors [2017] 8 CLJ 412, where the Court of Appeal in both cases decided as below: (a) Than Siew Beng (supra) at page 670 & 671 “[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 purposes 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. The only available documentary evidence, the second appellant’s birth certificate (exh TSB6) contained no information pertaining to the biological S/N dBjbjJMdhUGfsV6vKpuCfQ parents and the relevant particulars were endorsed with “Maklumat Tidak Diperolehi”. (b) Lim Jen Hsian (supra) at page 558 “[36] Paragraph 1(e) of Part II, Second Schedule of the Federal Constitution confers citizenship to a person born by jus sanguinis, by reference to his blood or lineage. Thus, when a child has not, at birth, acquired citizenship of any country, this would render him/her not born a citizen of any country. [20] In the present case before this Court, SFC submits that there was no proof of a legal marriage between Yahya Bin Balan and Norhidani binti Dahlan exists in the records of the JPN (see: enclosure 3 paragraph 6(b)(iii). The Plaintiff had not adduced any evidence in her affidavits(enclosure 2 and 4) to show that there was valid legal marriage subsisting at the time of her birth. Accordingly, SFC submits the Plaintiff was born out of wedlock and is therefore regarded as an illegitimate child and her citizenship is to follow that of her biological mother’s citizenship. [21] The Plaintiff submits that the Defendants did not affirm or produce any evidence that the Plaintiff is a citizen of a foreign country to rebut the Plaintiff’s assertion that she was born in Malaysia and did not acquire any citizenship of another country within a year from the S/N dBjbjJMdhUGfsV6vKpuCfQ date of her birth on 10.9.2006 (see: encl 2 page 13), therefore she has duly satisfied the requirements under Section 1(e) and Section 2(3) Second Schedule FC to be recognized as a citizen of Malaysia by operation of law. As for the satisfying the requirement under Section 1(e) Second Schedule FC, no requirement to identify the Plaintiff’s biological parents in Section 1(e) Second Schedule FC. [22] The Plaintiff submits that she is a Malaysian citizen by operation of law under Section 1(a) Second Schedule FC by virtue of being born to a father who was a permanent resident at the time of the Plaintiff’s birth. The Plaintiff further submits that the Federal Constitution provides that a child born within the Federation to one Malaysian parent or a parent who is permanently resident in Malaysia is a citizen by operation of law. A perusal of the Hansard shows that the legislative history and amendments to the Federal Constitution do not qualify the parents’ status to a recognized marriage (see Hansard dated 29.1.1962) when Tun Haji Abdul Razak’s the then Deputy PM in his speech during the Parliamentary Debates in the House of Representatives; moved for the insertion of the requirement of “either one of his parents was either a citizen or a permanent resident of the Federation” to the principle of jus soli. S/N dBjbjJMdhUGfsV6vKpuCfQ [23] The Plaintiff submits that the Plaintiff’s right to citizenship under Section 1(a) Second Schedule FC is not dependent on her biological parents’ marital status (see Ong Xin Tong (supra). [24] This Court by referring to the Court of Appeal’s decision in Than Siew Beng (supra) and Lim Jen Hsia (supra) , the latest in Tan Kar Chai (supra) it would appear the Plaintiff 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 FC. [25] No doubt that her father is a permanent resident of Malaysia, but in order to determine her lineage (the principle of jus sanguinis), it needs to be determined by the identity, citizenship and marital status of one’s biological parents at the time of birth. The learned SFC submits that the birth certificate itself is insufficient to prove lineage as enunciated in Than Siew Beng (supra) at page 670. “[35] A plain reading of para 1(e) “was not born a citizen of any country” refers to the relationship of the second appellant to his biological and lawful parents at the time of his birth. The only available documentary evidence, the second appellant’s birth certificate (exh TSB 6) contained no information pertaining to the S/N dBjbjJMdhUGfsV6vKpuCfQ biological parents and the relevant particulars were endorsed with “Maklumat Tidak Di perolehi”. [36] Since the identity of the child’s lawful and biological parents are unknown, it is not possible to determine the lineage of the second appellant that would enable the second appellant to be conferred citizenship by lineage ie jus sanguinis. [37] Thus in our view, the second appellant has not fulfilled the requirement to be a citizen by operation of law within the meaning of para 1(e) of Part II of the Second Schedule of the Federal Constitution (refer to Chin Kooi Nah (suing on behalf of himself and as litigation representative to Chin Jia Nee, child) v Pendaftar Besar Kelahiran dan Kematian, Malaysia [2016] 7 MLJ 717) [38] We cannot accept the contention of the appellants that the second appellant was born in Federation and has resided in the Federation all his life, as well as the absence of particulars on the second appellant’s birth certificate in respect of his lineage can be construed as sufficient proof that the second appellant “was not born a citizen of any country”. As was stated earlier,, what is required is evidence of the second appellant’s lineage which evidence is absent. S/N dBjbjJMdhUGfsV6vKpuCfQ [39] Thus, we agree with the finding of the learned High Court Judge that the second appellant has failed to prove on the balance of probabilities that the requirement of para 1(e) of Part II of the Second Schedule of the Federal Constitution above mentioned has been satisfied”. [26] The Plaintiff has submitted her birth certificate (see:encl 2 exhibit A 1) and under the particulars of her mother (Norhidani binti Dahlan ) for “No Kad Pengenalan : Maklumat Tidak Diperolehi”. However, the issue of her mother's nationality is a non-issue as long as her father is a permanent resident as required under Section 14(1)(b) read with Section 1(e) and 2(3), part II 2nd Schedule of FC. The only hurdle is for the Plaintiff to prove that she was not born a citizen of any country (jus sanguinis). This is where her parent’s relationship either solemnized in a legal marriage or not becomes an issue because as submitted by the learned SFC, thus, if a person was born out wedlock, such person is an illegitimate person at the time of birth and the lineage could only be traceable to the biological mother and could not be traceable to the biological father. Reference is made to Section 17, Part III, 2nd Schedule of the FC “ PART III [Article 31] SUPPLEMENTARY PROVISIONS RELATING TO CITIZENSHIP S/N dBjbjJMdhUGfsV6vKpuCfQ Interpretation [17] For the purposes 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 construes as references to his mother, and accordingly section 19 of this Schedule shall not apply to such a person”. In Lim Jen Hsian (supra) the Court of Appeal at page 559 “[38] The second appellant’s lineage would only be traceable to his Malaysian biological father provided that his parents was in a lawful marriage. In the case of an illegitimate child, the word “parent” is construed to refer to his biological mother…” In this case before this Court, no valid or legally recognized record of marriage between Yahya bin Balan and Norhidani binti Dahlan in the JPN (see : enbcl 3 para 6(b)(iii) and the Plaintiff did not show that there existed a valid marriage between her parents , therefore she is born out of wedlock and be regarded as an illegitimate child and her citizenship is to follow that of her biological mother. However, this Court agrees with the SFC that the Plaintiff is not born stateless, since she is to follow that of her biological mother, therefore she is an Indonesian citizen and the learned SFC referred to Undang-undang Republik Indonesia Nomor 12 Tahun 2006 S/N dBjbjJMdhUGfsV6vKpuCfQ Tentang Kewarganegaraan Republik Indonesia. Pasal 4(g) of the Indonesian citizenship law provides that a person acquires Indonesian citizenship if he is born illegitimate to a mother who is an Indonesian citizen as follows: “BAB II” WARGANEGARA INDONESIA Pasal 4 Warganegara Indonesia adalah : a. – f g. anak yang lahir di luar perkahwinan yang sah dari seorang ibu Warga negara Indonesia. [27] The significance of proving the marital status of her biological parents at the time when she was born, is because if she was born out of wedlock, thus illegitimate at the time of her birth, the word “parents” is to be construed as mother (see : Section 17 Part III, Second Schedule of the FC. [28] As submitted by the learned SFC, based on Article 14(1)(b) of the FC read with Section 1(a), Part II Second Schedule of the FC, it is clear that a person to be a Malaysian citizen by operation of law , the requisite qualifications to be fulfilled are : (a) The person was born on or after Malaysia Day; S/N dBjbjJMdhUGfsV6vKpuCfQ (b) The person was born within the Federation; and (c) At the time of the person’s birth, one of his parents is a Malaysian citizen or permanently resident in the Federation. Though it is true that whoever wants to be a Malaysian citizen by operation of law, when it comes to the qualification involving parents, it is enough if he or she able to show that one of his parents is a Malaysian citizen or permanently resident in the Federation, it must also be borne in mind the marital status of his or her biological parents need to be ascertained because of the word “parents” when it involves an illegitimate child is to be construed as mother as per Section 17 Part III, Second Schedule of the FC. [29] Since the Plaintiff had failed to prove that her parents were married legally, and that she was not born a citizen of another country, her lineage is to follow her mother and her mother’s citizenship has been established from the outset, therefore the Plaintiff had failed to satisfy the requirement under Section 1(e) Part III Second Schedule of the FC. S/N dBjbjJMdhUGfsV6vKpuCfQ PRESUMPTION UNDER SECTION 2(3), PART II,2ND SCHEDULE FC [30] The Plaintiff submits that the phrase “not born a citizen of any country” in Section 1(e) Second Schedule FC must be read with Section 2(3) Second Schedule FC in determining the Plaintiff’s citizenship by operation of law. Section 2(3) Second Schedule FC states: “For the purposes of paragraph (e) of section 1, a person is to be treated as having at birth any citizenship of which he acquires within one year afterwards by virtue of any provision corresponding to paragraph (c) of that section or otherwise” The Plaintiff's submission is pursuant to Section 2(3) Second