Glorya A/P Kuppa v Ketua Pengarah Jabatan Pendaftaran Negara (W-01(A)-218-05/2025)

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MENTERI DALAM NEGERI KERAJAAN MALAYSIA …RESPONDENTS In the High Court of Malaya at Kuala Lumpur (Special Powers Division) Originating Summons No.: WA-24-76-10/2023 BETWEEN GLORYA A/P KUPPA … PLAINTIFF

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MENTERI DALAM NEGERI KERAJAAN MALAYSIA …DEFENDANTS CORAM AZHAHARI KAMAL BIN RAMLI, JCA FAIZAH BINTI JAMALUDIN, JCA HAYATUL AKMAL BINTI ABDUL AZIZ, JCA 10/07/2026 09:11:37 Kand. 26 GROUNDS OF JUDGMENT Introduction [1] This is an appeal against the decision of the learned High Court Judge dated 7 April 2025 dismissing the Appellant’s Originating Summons. The Appellant, Glorya a/p Kuppa, seeks declaratory relief that she is a Malaysian citizen by operation of law under Article 14(1)(b) of the Federal Constitution. [2] The Appellant relies principally on Article 14(1)(b), read with section 1(a) of Part II and section 19B of Part III of the Second Schedule. She also relies, in the alternative, on Article 14(1)(b), read with section 1(e) and section 2(3) of Part II of the Second Schedule, and on the effect of the adoption order and the post-adoption birth certificate. [3] The central issue in this appeal is whether the Appellant, who was found abandoned at the Mentakab bus station when she was medically assessed to be about one year old, falls within section 19B of Part III of the Second Schedule as “a new born child found exposed”. [4] We accept that the Appellant was abandoned. That is not the difficulty in this appeal. The difficulty is that section 19B is confined to a new born child found exposed. On the evidence before the Court, the Appellant was not a new born child when she was found. The section 19B presumption therefore does not arise. [5] We are mindful of the Appellant’s circumstances. She was found abandoned as a young child. Her biological parents remain unknown. She has been cared for by Malaysian adoptive parents and has lived in Malaysia for substantially the whole of her life. Those circumstances deserve careful consideration. The Court’s task, however, is to determine whether the requirements for citizenship by operation of law under the Federal Constitution have been established. Constitutional framework [6] The Federal Court in CTEB & Anor v Ketua Pengarah Pendaftaran Negara, Malaysia & Ors [2021] 4 MLJ 236, [2021] 6 CLJ 471, explained that there are four ways of acquiring Malaysian citizenship: by operation of law, by registration, by naturalisation, and by incorporation of territory. [7] Article 14(1)(b) of the Federal Constitution provides that, subject to the provisions of Part III, every person born on or after Malaysia Day and having any of the qualifications specified in Part II of the Second Schedule is a citizen by operation of law. [8] Section 1(a) of Part II of the Second Schedule provides that every person born within the Federation of whose parents one at least is, at the time of the birth, either a citizen or permanently resident in the Federation, is a citizen by operation of law. [9] Section 1(e) of Part II of the Second Schedule provides that every person born within the Federation who is not born a citizen of any country otherwise than by virtue of that paragraph is a citizen by operation of law. [10] Section 2(3) of Part II of the Second Schedule provides that, for the purposes of paragraph (e) of section 1, a person is to be treated as having at birth any citizenship which he acquires within one year afterwards by virtue of any provision corresponding to paragraph (c) of that section or otherwise. [11] Section 19B of Part III of the Second Schedule provides: “For the purposes of Part I or II of this Schedule any new 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.” [12] The source of citizenship is the Federal Constitution. Citizenship by operation of law is determined by the Federal Constitution. It is not conferred by a birth certificate, adoption order, sympathy or discretion. The Court must decide whether the constitutional requirements are established on the evidence. [13] Citizenship by operation of law is not a matter of discretion. A person either satisfies the constitutional requirements or does not. The majority judgment in CTEB emphasised that citizenship by operation of law is determined at birth. It is a matter of birthright. The relevant constitutional requirements must therefore be met at the material time prescribed by the constitutional provision. The Court is not at liberty to add to, subtract from, or modify the constitutional qualifications. It cannot confer citizenship by sympathy or discretion. Approach to appellate intervention [14] The appeal arises from an Originating Summons. The High Court did not hear oral testimony and the deponents were not cross-examined. The learned Judge therefore did not have the advantage of seeing and hearing witnesses. [15] The principal questions before us concern the construction and application of the relevant constitutional provisions to the facts shown in the affidavits and documents. An appellate court will not lightly interfere with findings of fact made by a court below. Intervention is nevertheless warranted where the finding is unsupported by the evidence, where material evidence has been overlooked or misapprehended, where irrelevant matters have been treated as decisive, where there has been no or insufficient judicial appreciation of the evidence, or where the conclusion reached is plainly wrong: Gan Yook Chin (P) & Anor v Lee Ing Chin @ Lee Teck Seng & Ors [2005] 2 MLJ 1; [2004] 4 CLJ 309; [2004] 6 AMR 781; [2004] 2 MLRA 1, FC; Ng Hoo Kui & Anor v Wendy Tan Lee Peng (administratrix for the estate of Tan Ewe Kwang, deceased) & Ors [2020] 12 MLJ 67; [2020] 10 CLJ 1; [2020] 8 AMR 227; [2020] 6 MLRA 193, FC. [16] The principle in China Airlines Ltd v Maltran Air Corp Sdn Bhd [1996] 2 MLJ 517; [1996] 3 CLJ 163; [1996] 1 AMR 2233; [1996] 1 MLRA 260, FC applies by analogy. Where there is no question of credibility based on seeing and hearing witnesses, and the issue is the proper inference to be drawn from proved facts, an appellate court is generally in as good a position as the court below to evaluate the material. [17] Where the material facts are undisputed or substantially undisputed, the legal effect of those facts may raise a question of law, particularly where the issue concerns the application of law to those facts or the legal consequences to be drawn from primary facts: Amitabha Guha & Anor v Pentadbir Tanah Daerah Hulu Langat [2021] 4 MLJ 1; [2021] 3 CLJ 1; [2021] 3 AMR 341; [2021] 2 MLRA 19, FC. Characterisation of the case [18] This is a citizenship-by-operation-of-law case under Article 14(1)(b) of the Federal Constitution. It is not a case concerning discretionary registration under Article 15A or naturalisation under Article 19. The Appellant had, through her foster mother, previously applied to be registered as a citizen under Article 15A but the application was rejected. The relief sought by the Appellant in the present Originating Summons was not to review the exercise of discretion under Article 15A. The Appellant sought declarations that she is already a citizen by operation of law. [19] The Appellant does not ask this Court to confer citizenship by discretion. Her case is that she is already a citizen by operation of law because the constitutional conditions are satisfied. [20] Nor is this a deprivation, withdrawal or cancellation case under Articles 24 to 27 of the Federal Constitution. There is no deprivation order, withdrawal order or cancellation decision under those Articles. The issue is whether a citizenship by operation of law arose in the first place. The complaint concerning the birth certificate recording the Appellant as “Bukan Warganegara” is consequential upon her claim that she is already a citizen by operation of law. [21] The material date depends on the constitutional route invoked. For section 1(a), the inquiry is directed to the status of the parent “at the time of the birth”. For section 1(e), the inquiry is whether the person was “not born a citizen of any country”. For section 19B, the anterior question is whether the Appellant was, at the time she was found, a “new born child found exposed”. Salient facts [22] The material facts in this case are largely not in dispute. [23] The Appellant was found abandoned at the Mentakab bus station, Pahang, at about 1.00 a.m. on 3 December 1997. The police report lodged by her adoptive mother stated that the Appellant was approximately one and a half years old. The medical evidence estimated that the Appellant was about one year old when she was examined. [24] The Appellant was thereafter cared for by Selvarani a/p Muthiah (“Selvarani”) and Kuppa a/l Anthoney (“Kuppa”). They are Malaysian citizens. [25] A late application for registration of the Appellant’s birth was made on 20 June 2008 by the Temerloh Welfare Office. The application was approved on 11 May 2009. On 1 June 2009, a birth certificate was issued in the name of Glorya. Her date of birth was recorded as 1 January 1997. Her place of birth was recorded as Mentakab, Pahang. The particulars of her biological parents were recorded as “Maklumat Tidak Diperolehi”. Her citizenship status was recorded as “Belum Ditentukan”. [26] On 3 April 2012, the Appellant was adopted by Selvarani and Kuppa pursuant to an adoption order issued by the Temerloh Sessions Court. A new birth certificate dated 23 July 2012 was thereafter issued. It recorded the adoptive parents’ particulars. The Appellant’s citizenship status was recorded as “Bukan Warganegara”. [27] An application for registration as a citizen under Article 15A of the Federal Constitution was rejected. The Appellant then commenced the present proceedings by Originating Summons seeking declarations that she is a Malaysian citizen by operation of law. The High Court’s decision [28] The learned High Court Judge dismissed the Originating Summons with no order as to costs. [29] The learned Judge held, in substance, that section 19B did not apply because the Appellant was not a new born child when she was found. The learned Judge further held that the Appellant had not established the requirements of section 1(e), as the identity and citizenship status of her biological parents were unknown. The learned Judge also held that the Adoption Act 1952 and the adoption order did not confer citizenship by operation of law. Issues in this appeal [30] The principal issues for our determination are:

whether section 19B of Part III of the Second Schedule applies to the Appellant;

whether the Appellant has established citizenship by operation of law under Article 14(1)(b), read with section 1(a) of Part II of the Second Schedule;

whether the Appellant has established citizenship by operation of law under Article 14(1)(b), read with section 1(e) and section 2(3) of Part II of the Second Schedule;

whether the adoption order and the Malaysian citizenship of the adoptive parents assist the Appellant under section 1(a); and

whether the Appellant is entitled to the declaratory and consequential reliefs sought. Issue 1: Does section 19B apply to the Appellant? § Section 19B and CCH [31] The leading authority on section 19B is CCH & Anor v Pendaftar Besar bagi Kelahiran dan Kematian Malaysia [2022] 1 MLJ 71, [2022] 1 CLJ 1; [2022] 1 AMR 1; [2022] 1 MLRA 185, FC. In CCH, the Federal Court considered the scope and operation of section 19B in the context of an abandoned child. [32] CCH makes clear that “found exposed” is not confined to physical exposure in an open place. It may include abandonment of a new born child at the place of birth. But the child must still be a “new born child” within section 19B. [33] CCH also explains the burden. The Court must first be satisfied that the factual foundation for section 19B is established. Where a new born child is shown to have been found exposed or abandoned, the section 19B presumptions arise. The burden then shifts to the party challenging the presumption to show the contrary. [34] CCH is therefore authority for two propositions material to this appeal. First, abandonment at the place of birth may fall within section 19B. Secondly, once the factual foundation for section 19B is established, the presumption operates unless rebutted. [35] CCH does not, however, remove the words “new born child” from section 19B. The Federal Court was concerned with a child who was abandoned as a newborn. The present appeal raises a different question: whether section 19B applies to a child who was about one year old, or one and a half years old on the police report, when found abandoned. § Whether the Appellant was a “new born child”? [36] The Appellant submits that section 19B should be interpreted broadly and purposively. She says that the provision is intended to protect abandoned children whose parentage and place of birth cannot be ascertained. She argues that the expression “new born child” should be read functionally to include a very young abandoned child who is unable to communicate reliable information concerning her parentage or place of birth. [37] The Appellant further relies on the anti-statelessness objective said to underlie the Federal Constitution. She refers to CTEB where it was observed that the Federal Constitution guards against statelessness, including through provisions such as Article 26B. The Appellant also relies on the UNHCR Guidelines on Statelessness, the Convention on the Rights of the Child, and the Child Act 2001. She submits that Article 8 of the Convention on the Rights of the Child protects the child’s right to preserve identity, including nationality, and that a narrow interpretation of section 19B would be inconsistent with that protective framework. [38] We accept that section 19B serves an important protective purpose. It reduces the risk of statelessness for a new born child found exposed or abandoned. However, that purpose must be given effect within the language of the Federal Constitution. [39] The words chosen by section 19B are “any new born child found exposed”. The words “new born child” are words of limitation. If section 19B were intended to apply to every abandoned child irrespective of age, it would not have used those words. [40] We accept the Respondents’ submission that a purposive interpretation must remain anchored in the constitutional text. The Respondents relied on Merdeka University Berhad v Government of Malaysia [1981] 2 MLJ 356, where the Court cautioned that the Federal Constitution is not to be construed in a narrow or pedantic sense, but neither is the Court at liberty to stretch or pervert its language in order to supply omissions or correct supposed errors. The Respondents also relied on DYTM Tengku Idris Shah Ibni Sultan Salahuddin Abdul Aziz Shah v Dikim Holdings Sdn Bhd & Anor [2002] 2 MLJ 11, FC. That case affirms the purposive approach to interpretation. It does not, however, permit the Court to disregard clear constitutional words. Purpose informs the meaning of the words used. It does not authorise the Court to replace them. [41] We accept that section 19B is a protective and gap-filling provision. This was explained in CTEB, where section 19B was described as one of the supplementary provisions intended to close gaps or resolve technicalities where parentage or place of birth is in issue. We also accept that CCH gives the words “found exposed” a broad interpretation. The Federal Court rejected a narrow reading of “exposed” and held that it includes abandonment. [42] The Court may interpret the words “found exposed” broadly, as CCH did. The Court may also recognise that abandonment at the place of birth may fall within those words. But the Court cannot remove or enlarge the separate requirement that the child must be a “new born child”. CCH was concerned principally with the expression “found exposed”. The child in CCH was abandoned at the hospital as a newborn. The question whether a child found at about one year old could fall within the expression “new born child” did not arise for direct determination in that case. [43] In the present appeal, whether the Appellant was a “new born child” when she was found is the critical issue. Section 19B does not apply to every abandoned child. It applies to “any new born child found exposed in any place”. The words “new born child” form part of the threshold requirement. They cannot be omitted from the provision. [44] The Appellant relies on dictionary definitions of “newborn” and “infant”. She submits that “new born child” should be construed functionally to include a very young child who is unable to communicate reliable information concerning her parentage or place of birth. The Respondents rely, among others, on medical material which defines a newborn or neonate as a baby in the first 28 days of life. We do not consider it necessary in this appeal to adopt a fixed medical definition of “new born child” for all constitutional purposes. It is sufficient to decide this appeal on its facts. A child who was about one year old, or one and a half years old according to the police report, cannot properly be described as a “new born child” within section 19B. To extend those words to a child of that age would not be a broad interpretation of the constitutional text. It would enlarge the class of persons covered by section 19B beyond the words chosen by the Federal Constitution. [45] The evidence in the present case is clear. The Appellant was found at the Mentakab bus station on 3 December 1997. The police report lodged by her adoptive mother stated that she was about one and a half years old. The medical evidence estimated her age at about one year old. On either version, she was not a new born child when found. [46] This conclusion is reinforced by the second limb of section 19B. Where section 19B applies, the date of finding is taken to be the date of birth. That deeming provision is coherent where a newborn child is found exposed or abandoned, because the actual date of birth may not be known with certainty. It is not coherent where the evidence shows that the child had already been born about one year earlier. To treat 3 December 1997 as the Appellant’s date of birth would be inconsistent with the evidence and would extend the deeming provision beyond its proper constitutional function. [47] This appeal is therefore materially different from a case where a new born child is abandoned at birth or at the place of birth. In such a case, section 19B may operate, subject to the evidence and unless the contrary is shown. The present appeal is different. The Appellant was abandoned, but she was not a new born child when found. The factual foundation for section 19B is absent. [48] We therefore agree with the learned Judge that section 19B does not apply. The presumption under section 19B does not arise. The burden does not shift to the Respondents to show the contrary. Issue 2: Has the Appellant established citizenship by operation of law under Article 14(1)(b) read with section 1(a)? [49] Section 1(a) of Part II of the Second Schedule applies to every person born within the Federation of whose parents one at least is, at the time of the birth, either a citizen or permanently resident in the Federation. [50] The material words are “at the time of the birth”. The Appellant can only succeed under section 1(a) if she establishes that one of her parents was, at the time of her birth, either a Malaysian citizen or permanently resident in the Federation. [51] In the absence of section 19B, there is no constitutional presumption that the Appellant was born at the place where she was found or that her mother was permanently resident there. The place where the Appellant was found does not, by itself, establish the citizenship or permanent residence status of either biological parent at the time of birth. [52] The evidence does not establish the identity, citizenship or permanent residence status of either biological parent at the time of the Appellant’s birth. The first birth certificate recorded the particulars of the parents as “Maklumat Tidak Diperolehi”. The subsequent birth certificate recorded the adoptive parents after the adoption order. It did not and could not establish the constitutional status of the biological parents at the time of birth. [53] The Appellant has therefore not established the requirements of Article 14(1)(b), read with section 1(a) of Part II of the Second Schedule. Issue 3: Has the Appellant established citizenship by operation of law under Article 14(1)(b) read with section 1(e) and section 2(3)? [54] The Appellant’s second route is Article 14(1)(b), read with section 1(e) and section 2(3) of Part II of the Second Schedule. [55] Section 1(e) applies to every person born within the Federation who is not born a citizen of any country otherwise than by virtue of that paragraph. The material date for the inquiry is the date of birth. [56] Even assuming in the Appellant’s favour that she was born within the Federation, she must still establish that she was not born a citizen of any country. The absence of evidence that she presently holds another citizenship is not, by itself, proof that she was not born a citizen of any country. [57] We accept that the Appellant faces a real evidential difficulty. Her biological parents are unknown. Their citizenship status is unknown. But the constitutional requirement remains. The Court must be satisfied, on the evidence, that the requirement in section 1(e) has been established. [58] The Court of Appeal authorities relied on by the Respondents are material. In Lim Jen Hsian & Anor v Ketua Pengarah Jabatan Pendaftaran Negara & Ors [2018] 6 MLJ 548, [2017] 8 CLJ 412; [2017] 15 6 MLRA 426, CA, the Court treated Article 14(1)(b), read with section 1(e), as requiring consideration of whether the applicant acquired citizenship of another country by descent or lineage. [59] The Court of Appeal in Than Siew Beng & Anor v Ketua Pengarah Jabatan Pendaftaran Negara & Ors [2017] 5 MLJ 662, [2017] 8 CLJ 16; [2017] 6 MLRA 358, held that where the identity and citizenship status of the biological parents are unknown, the Court is unable to determine whether the applicant acquired citizenship of another country by descent at birth. [60] The same approach was adopted in Tan Soo Yin v Registrar-General of Births and Deaths, Malaysia (Civil Appeal No: W-01(A)-548- 10/2020), [2022] MLRAU 323, CA. The Court held that an applicant relying on section 1(e) bears the burden of proving that, at the time of birth and based on lineage, she was not born a citizen of any country. Section 2(3) is a deeming provision as to the time of acquisition of citizenship. It does not remove the need to prove the requirement under section 1(e). [61] These authorities have not been shown to be distinguishable. The Appellant’s biological parents are unknown. Their citizenship status at the time of the Appellant’s birth is unknown. It is therefore not possible, on the evidence before the Court, to determine that the Appellant did not acquire citizenship of another country by descent at birth. [62] Section 2(3) does not assist the Appellant. It treats citizenship acquired within one year after birth as citizenship held at birth for the purposes of section 1(e). It does not deem a person to be stateless merely because there is no evidence that she acquired another citizenship within one year after birth. [63] We therefore find that the Appellant has not established the requirement under section 1(e). Issue 4: Adoption and the citizenship status of the adoptive parents [64] The Appellant’s alternative argument is that she should be treated as a Malaysian citizen by operation of law by virtue of the citizenship status of her adoptive parents. [65] This submission is answered by Pendaftar Besar Kelahiran dan Kematian, Malaysia v Pang Wee See & Anor [2017] 3 MLJ 308; [2017] 7 CLJ 33; [2018] 2 MLRA 406, CA. The Court of Appeal held that an adoption order under the Adoption Act 1952 does not confer Malaysian citizenship on an adopted child by operation of law under Article 14(1)(b) read with section 1(a). It further held that sections 9 and 25A of the Adoption Act 1952 are confined to the legal consequences of adoption within the statutory scheme of adoption. They do not extend into the realm of constitutional citizenship. The Adoption Act 1952 is not a competent legal instrument to confer citizenship under the Federal Constitution. [66] The phrase “at the time of the birth” in section 1(a) refers to the factual event of birth and to the status of a parent at that time. An adoption order made later does not retrospectively make the adoptive parents the parents at the time of birth for the purposes of section 1(a). [67] The adoption order regularised the legal relationship between the Appellant and her adoptive parents. It did not retrospectively make the adoptive parents her parents at the time of birth for the purposes of section 1(a) of Part II of the Second Schedule. Nor did it establish that one of her biological parents was a citizen or permanently resident in the Federation at the time of her birth. [68] The subsequent birth certificate issued after adoption is also not determinative of citizenship. The source of citizenship is the Federal Constitution, not the birth certificate. The birth certificate is evidence of particulars recorded. It is not, by itself, the source of citizenship by operation of law. [69] For these reasons we find that the Appellant is not a Malaysian citizen by operation of law by virtue of the citizenship status of her adoptive parents. Birth certificate and Articles 24 to 27 [70] For completeness, we address the Appellant’s contention that the birth certificate recording her as “Bukan Warganegara” amounted to unlawful deprivation, withdrawal or cancellation of citizenship. [71] This is not a deprivation case under Articles 24 to 27 of the Federal Constitution. Article 24 concerns the deprivation of citizenship of a person who is already a citizen. As explained in CTEB, it does not apply where the person’s status as a citizen has not first been established. [72] The Appellant’s complaint concerning the birth certificate therefore depends on the prior question whether she has established citizenship by operation of law. If she had established that status, it could not be removed merely by an administrative entry in a birth certificate. However, for the reasons already given, she has not established entitlement under Article 14(1)(b). [73] The entry “Bukan Warganegara” is not the source of non-citizenship. Equally, an entry of “Warganegara” would not be the source of citizenship. The constitutional question remains whether the Appellant has established entitlement under Article 14(1)(b). She has not done so. Conclusion and orders [74] We empathise with the difficult circumstances in which the Appellant finds herself. She was found abandoned as a young child. Her biological parents remain unknown. She has been cared for by Malaysian adoptive parents and has lived in Malaysia for substantially the whole of her life. Those circumstances explain the human context of the appeal. They cannot, however, displace the constitutional requirements for citizenship by operation of law. [75] This Court is not exercising a discretion under Article 15A or Article 19 of the Federal Constitution. The only question before us is whether the Appellant has proved that she is already a citizen by operation of law under Article 14(1)(b), read with the relevant provisions of the Second Schedule. [76] For the reasons given, we find that section 19B of Part III of the Second Schedule does not apply because the Appellant was not a new born child when she was found. The Appellant has also not established the requirements of section 1(a), section 1(e), or section 2(3) of Part II of the Second Schedule. The adoption order and the Malaysian citizenship of the adoptive parents do not confer citizenship by operation of law. The consequential reliefs sought in relation to the birth certificate and MyKad therefore cannot be granted. [77] We add this only by observation. The dismissal of this appeal does not prevent the Appellant from pursuing such other route to citizenship as may be available to her under the Federal Constitution and the applicable law. In particular, having regard to her age, her circumstances, and the fact that she lived in Malaysia for substantially her whole life, it remains open to her to apply for citizenship by naturalisation under Article 19 of the Federal Constitution, if the legal requirements are met to the satisfaction of the Federal Government. Nothing in this judgment should be read as expressing any concluded view on such an application. That is a matter for the relevant authority under the Federal Constitution. [78] Accordingly, the appeal is dismissed. The decision of the High Court dated 7 April 2025 is affirmed. [79] Given the nature of the appeal and the circumstances of the Appellant, we make no order as to costs. Dated: 30 June 2026 -SGD- (FAIZAH BINTI JAMALUDIN) JUDGE COURT OF APPEAL, MALAYSIA COUNSEL: For the Appellant: Mohd Haijan bin Omar Asyraaf bin Abu Bakar Hamzah [Messrs. Haijan Omar & Co.] For the Respondents: Safiyyah binti Omar [Jabatan Peguam Negara]