Schedule
Schedule FC:- “[27] Article 14(1)(b) of the Federal Constitution encapsulates the requirement of citizenship by jus soli ie, by the place of birth; while s. 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 ie, 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 fulfil the requirements of art. 14(1)(b) and s. 1(e) of Part II, Second Schedule of the Federal Constitution.”. [45] In Than Siew Beng (supra) the Court of Appeal also held that such burden of proof is to be discharged by the applicant in the following tone: - “[27] The contentious issue is in respect of the requirement of jus sanguinis in s. 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 s. 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 parents and the relevant particulars were endorsed with "Maklumat Tidak Diperolehi". [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 s. 1(e) of Part II of the Second Schedule of the Federal Constitution. (Refer to Chin Kooi Nah v. Pendaftar Besar Kelahiran dan Kematian Malaysia (supra))”. [46] Thus, the averments made and the documents produced by P in his affidavits, in this Court’s view are insufficient to be made as a basis for P to say that he is a stateless person. P has knowledge that his biological parents are of Indonesian descent although not their citizenship status. Therefore, it is incumbent upon P to make specific inquiry to the Indonesian Consulate about his parents whether they are the citizens of Indonesia or otherwise. [47] Now, this is where the lacunae in information about P’s parents will be of concern to this Court. Had enquiry been made of the parents with further and better information supplied to the Indonesian Consulate, P would stand a better chance of knowing the citizenship status of his biological parents. [48] Conversely, had further and better particulars disclosed in Court about P’s biological parents so as to fill in the aforementioned lacunae, this Court would certainly be in a better position to appreciate all facts relating to the jus sanguini element whether P is not born a citizen of any other country or otherwise. [49] Thus, to shift the onus of proof to the Defendants before P even produced sufficient evidence that he is not born a citizen of any country would be contrary to the trite law on burden of proof. If authorities are needed, reference can be made from the decision of the Court of Appeal in Than Siew Beng (supra) where it was held: “[29] It is a well-established principle of law that "he who asserts must prove". The burden of proof is on the appellants to establish a prima facie case on the balance of probabilities that the second appellant, "was not born a citizen of any country". [30] Such rule of evidence is enunciated in s. 103 of the Evidence Act 1950 which provides: The burden of proof as to any particular fact lies on that person who wishes the court to believe in its existence, unless it is provided by any law that proof of that fact shall lie on any particular person. [31] In the case of Ong Boon Hua & Anor v. Menteri Hal Ehwal Dalam Negeri, Malaysia & Ors [2008] 5 CLJ 42, it was held that in order to ascertain the citizenship status of the applicant, the burden is on the applicant to furnish the necessary documents, and the absence of such documents would be fatal to the applicant's claim. [32] The learned High Court Judge had referred to the burden borne by the applicant in the following terms: This Court would have to examine the factual matrix of this case and determine whether the 2nd Applicant was "not born a citizen of any country". As stated in the affidavits filed herein, the 1st Applicant and his wife had sponsored the surgery of the biological mother of the 2nd Applicant and the 2nd Applicant was taken from his biological mother at the time of his birth at the Poliklinik. Therefore the burden is on the Applicants to show to this Court that the 2nd Applicant "was not born a citizen of any country". [33] The learned High Court Judge had also found that the appellants had failed to prove that reasonable efforts had been made to determine the identity and citizenship status of the second appellant's biological parents. The learned High Court Judge ruled that the mere publication of an advertisement in the papers to solicit information on the identity and citizenship status of the second appellant's biological parents is insufficient. In her grounds of judgment, she had stated thus: From the averment it would appear that the couple knew about the woman whom they have negotiated and finally paid for the medical bills relating to the birth. I believe there was no full and frank disclosure of facts pertaining to the identity of this woman. It would appear the Applicants had not made reasonable attempts to trace the whereabouts of the mother either from the Poliklinik and or even from the informant who could be identified and traceable in order to provide the full and frank facts about the mother.”. [50] P’s counsel also attempted to persuade this Court that the burden is on the Defendants to proof that P ‘is not born a citizen of any country’ by citing a Federal Court case of CCH & Anor v Pendaftar Besar Bagi Kelahiran Dan Kematian Malaysia [2023] 1 MLRA (Federal Court). [51] However, upon proper reading of the said authority, this Court finds that such reliance is, with due respect, totally misplaced. CCH concerns with a case of an abandoned baby which was never the case of P. In fact, the expositions of law in CCH relates much to s.19B of Part II of the Second Schedule FC with the operative words “any newborn child found exposed in any place”. Certainly this set of facts would certainly exclude P in its applications. It is axiomatic that for a principle of law to apply there must first be in existence a substratum of facts, the existence of which is postulated by the principle, hence absent such facts, and the proposition becomes quite irrelevant [per Gopal Sri Ram JCA in Teo Hock Guan & Anor v. Johore Builders & Investments Sdn Bhd (1996) 4 CLJ 184]. [52] Further, there is another dimension which this Court viewed as highly important and relevant in ascertaining the contentious burden of proof in the matter instant. It concerns with the prima facie evidence from the contemporaneous documents that P’s parents are not the citizens or permanent residents of Malaysia at the time of P’s birth. Such prima facie evidence is established by virtue of s.33(1) of the Births and Deaths Registration Act 1957 [Act 299] which reads: - 33. “Entry in register as evidence of birth or death (1) Subject to the provisions of this section an entry or a Certificate of Birth or a Certificate of Death relating thereto purporting to have been duly certified under subsection 32(2) shall be received without further or other proof as evidence of such facts and particulars relating to such birth or death as are or were at the time of the making of such entry required by law to be set forth in such entry or certificate.” [53] Thus, by the Defendants producing the Certificate of Birth and the Daftar Kelahiran (Borang A) in DAIR, this Court holds that the burden if any on the Defendants’ part had been discharged, thus the onus shifted to P to proof on the balance of probabilities that he is not born of a citizen of any country. [54] Thus, with such scanty affidavit evidence which left much to be desired, this Court found that P had failed to discharge his onus of proof, thus no necessity for the Defendants to be imposed with unnecessary obligations to conduct investigations on P’s parents. To do otherwise, as suggested by P, would also be contrary to reasons since P himself averred that he did not wish to apply for a permanent residence, which he presumably can, simply because he had already spent 34 years of his life in Malaysia without more. This Court is not without sympathy, but sympathy is not a valid ground for a citizenship by operation of law to be recognized. [55] For the sake of completeness, this Court would also consider whether Section 2 (3) Part II Second Schedule FC (as referred earlier in this ground of judgments) is of any assistance to P. [56] On this issue, this Court would like to refer to ST & Anor v Pendaftar Besar Kelahiran Dan Kematian Malaysia & Ors [2024] 3 CLJ 931 where it was explained and in which this Court agrees that: - “[53] In this regard, it is not sufficient to refer to s. 2(3) of Part II of the Second Schedule to merely say that the child has no citizenship of any country one year from the date of the birth of the child. That is not the purpose of the section. All that s. 2(3) does is to treat a person has having any citizenship at the time of birth which citizenship was subsequently acquired within one year from the date of birth either through: (i) any provision corresponding with s. 1(c) of Part II of the Second Schedule or (ii) some other means. This principle was established in Tan Soo Yin where the Court of Appeal established that sub-s. 2(3) of s. operates as a presumption as to the time of acquisition of citizenship and to treat any citizenship acquired within one year after birth as citizenship acquired at the time of birth. Based on this reasoning, the sub-s. 2(3) of s. 1, Part II has no application in the instant case.”. [57] What is clear from ST’s decision is that a presumption arises that any citizenship acquired within one (1) year after the birth of a person as citizenship acquired at the time of birth. This accordingly has no application to P’s case and as such does not merit attention of this court [refer also: Tan Soo Vin v Registrar General of Births And Deaths, Malaysia (Civil Appeal Court of Appeal W-01(A)-548- 10/2020 (unreported)]. Citizenship by way of naturalization [58] As stated above, P’s alternative prayer is for a declaration that he had acquired Malaysian citizenship by way of naturalization under Article 19 FC. [59] Article 19 FC provides: - “(1) Subject to Clause (9), the Federal Government may, upon application made by any person of or over the age of twenty-one years who is not a citizen, grant a certificate of naturalization to that person if satisfied— (a) that— (i) he has resided in the Federation for the required periods and intends, if the certificate is granted, to do so permanently; (ii) (Repealed); (b) that he is of good character; and (c) that he has an adequate knowledge of the Malay language. (2) Subject to Clause (9), the Federal Government may, in such special circumstances as it thinks fit, upon application made by any person of or over the age of twenty-one years who is not a citizen, grant a certificate of naturalization to that person if satisfied— (a) that he has resided in the Federation for the required periods and intends, if the certificate is granted, to do so permanently; (b) that he is of good character; and (c) that he has an adequate knowledge of the Malay language. (3) The periods of residence in the Federation or the relevant part of it which are required for the grant of a certificate of naturalization are periods which amount in the aggregate to not less than ten years in the twelve years immediately preceding the date of the application for the certificate, and which include the twelve months immediately preceding that date. (4) For the purposes of Clauses (1) and (2) residence before Malaysia Day in the territories comprised in the States of Sabah and Sarawak shall be treated as residence in the Federation; and for the purposes of Clause (2) residence in Singapore before Malaysia Day or with the approval of the Federal Government residence in Singapore after Malaysia Day shall be treated as residence in the Federation. (5) A person to whom a certificate of naturalization is granted shall be a citizen by naturalization from the date on which the certificate is granted. (6) (Repealed). (7) (Repealed). (8) (Repealed). (9) No certificate of naturalization shall be granted to any person until he has taken the oath set out in the First Schedule.”. [60] As opposed to citizenship by operation of law, citizenship by naturalization is something that is not of a birthright, it is conferred upon application being made by non-citizens to the authorities. [61] On this, reference is again made to the Federal Court decision in CTEB (supra) where it was held: - “[17] 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 Saleem Faruqi, in his book 'Our Constitution ' (Sweet & Maxwell, Thomson Reuters 2019) at pp. 178 and 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 naturalisation 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 edn, Pacifica Publications 2007) at pp. 330-337). [18] The segregation between these two broad classes viz by operation of law and other forms of citizenship (registration and naturalisation) is mainly this: The other categories of citizenship may be acquired through an application to the Federal Government upon the required conditions being fulfilled. Thus, unlike the operation of law citizenship, their qualifications are not automatic at birth. They become qualified upon fulfilling the stipulated conditions.”. [62] Further reference can be made to ST (supra) where the High Court held that: - “[20] The main categories for acquiring citizenship are: (i) citizenship by operation of law provided under art. 14(1). Persons born after Malaysia Day who meet any of the qualifications specified in s. 1 of Part II of the Second Schedule are citizens. If any person qualifies, that person is a citizen without volition on his or her part and the Government including the Registrar General has no discretion in the matter; (ii) citizenship by registration provided under arts. 15, 15A, 16 and 16A. Under this category, citizenship is granted to persons who are non-citizens by the Federal Government upon application. The non-citizen must satisfy the stipulated criteria to the satisfaction of the designated Minister. A register of citizens by registration is established and maintained by the Minister under s. 10(1)(a) of Part III of the Second Schedule; and (iii) citizenship by naturalisation is provided under art. 19. Under this category non-citizens acquire citizenship by making an application to the Federal Government. The non-citizen must satisfy the criteria stipulated to the satisfaction of the designated Minister. A register of citizens by naturalisation is established and maintained by the Minister under s. 10(1)(b) of Part III of the Second Schedule. [63] A reading of Article 19 FC thus clearly shows that P would need to apply to the Federal Government of the Federation of Malaysia to acquire citizenship by naturalization. [64] In this regard, this Court is in agreement with the submissions by the learned Senior Federal Counsel that whilst it is true that Article 19 FC provides for acquisition of citizenship, the application is to be done to the Federal Government and not to the Court. [65] In construing Article 19 FC as such, reference is made to Bindra’s Interpretation of Statutes, 7th Edition, pages 947-948: - “The Constitution must be considered as a whole, and so as to give effect, as far as possible, to all its provisions. It is an established canon of constitutional construction that no one provision of the Constitution is to be separated from all the others, and considered alone, but that all the provisions bearing upon a particular subject are to be brought into view and to be so interpreted as to effectuate the great purpose of the instrument (Old Wayne etc Association v. McDonough SI L ed 345; Doconers v. Bidwell82 (US) 244:45 L ed 1088; Myers v. United States 272 US 52:71 L ed 60, 180). An elementary rule of construction is, that if possible, effect should be given to every part and every word of a Constitution and that unless there is some clear reason to the contrary, no portion of the fundamental law should be treated as superfluous (Williams v. United States 289 US 553:77 L ed 1372; Marbury v. Madison I Cranch (US) 137:2 L ed 60; Myers v. United States 272 US 52:71 L ed 60; United States v. Buffer 297 U SI: 80 L ed 477).”. [66] Reference is also made to Loh Kooi Choon V Government of Malaysia [1977] 2 MLJ 187 where it was held by the Federal Court (as it was then) that: - “This reasoning, in my view, is based on the premise that the Constitution as the supreme law, unchangeable by ordinary means, is distinct from ordinary law and as such cannot be inconsistent with itself.”. [67] Thus, if this court were to accede to P’s alternative prayer, that would be akin to this Court taking over the role of the executive. Such act would also akin to this Court inserting new words into the FC since this Court has no jurisdiction to confer citizenship as far as Article 19 FC is concerned. Reference is again made to CTEB where the Federal Court held that: - “[48] The fundamental rule in interpreting the FC or any written law is to give effect to the intention of the framers. The court cannot insert or interpret new words into the FC. The court may only call in aid other canons of construction where the provisions are imprecise, protean, evocative or can reasonably bear more than one meaning. I find s. 17 is plain and clear in its meaning. The court should not endeavour to achieve any fanciful meaning against the clear letter of the law.”. [68] This Court is mindful that any interference by this Court on the powers vested solely with the Federal Government under Article 19 FC would also violate the separation of powers doctrine. [69] As a matter of illustration, regards may be made to Cornelia Muslie & Anor v Ketua Pengarah Pendaftaran Negara, Malaysia & Ors [2023] 1 CLJ 66. Although that case touched more on the power to register a person as a Malaysian citizen under Article 15A FC, the High Court had indeed underlined the important principle that the courts should not usurp the powers granted to the Federal Government which this Court is in full agreement with. According to the High Court in Cornelia: - “[45] In the final analysis, the plaintiff in the present case had availed himself the remedy in art. 15A FC by applying to the Minister on 27 August 2015. His application was processed by the first defendant and forwarded for the consideration and decision by the Minister. Article 15A FC empowers the Federal Government to register a person under the age of 21 years as a citizen in special circumstances as the Federal Government thinks fit. The power to register a person as a Malaysian citizen under art. 15A FC is entrusted solely to the Federal Government. If a declaration of citizenship is granted under art. 15A by this court, it is of the considered view that it would be stepping into the shoes of the Federal Government and would be tantamount to usurpation of the constitutional power entrusted to the Federal Government by our supreme law of the land. The intention of the framers of the FC that the decision to grant or not to grant citizenship under art. 15A FC should be left to the Federal Government is clearly embodied in s. 2, Part III Second Schedule of the FC which provides: A decision of the Federal Government under Part III of this Constitution shall not be subject to appeal or review in any court.”. [70] All in all, since there is an admission by P of his reluctance to apply for a Permanent Resident status, this Court found that it is a clear case of an abuse of court’s process by P in applying for citizenship by naturalization in the instant matter. Conclusion [71] Based on the above reasons, P’s OS was dismissed but with no order as to costs. Dated: 03rd JUNE 2025 …………………………………………. (NOOR HISHAM BIN ISMAIL) Judge High Court, Johor Bahru Parties: Shaik Salem@Shaik Adam bin Shaik Mohd Daud Messrs Shaik Adam & Co. Solicitors for the Plaintiff No. 20-01, Jalan Cenderasari 3, Taman Perbadanan Islam Larkin, Larkin 80350 Johor Bahru, Johor Zahilah binti Mohammad Yusoff Peguam Kanan Persekutuan Johor Solicitors for the Defendants Pejabat Penasihat Undang-Undang Negeri Johor, Aras 2, Bangunan Dato’ Jaafar Muhammad, Kota Iskandar, 79100 Iskandar Puteri, Johor. Cases referred to: 1. CTEB & Anor v Ketua Pengarah Pendaftaran Negara, Malaysia & Ors [2021] 6 CLJ 471; 2. Pendaftar Besar Kelahiran Dan Kematian, Malaysia v Pang Wee See & Anor [2017] 7 CLJ 33; 3. Than Siew Beng & Anor v Ketua Pengarah Jabatan Pendaftaran Negara & Ors [2017] 8 CLJ 16; 4. Siti Aisyah Yusuf v Attorney General & Ors [2023] 10 CLJ 839; 5. Farah Hani Sukor V Ketua Pengarah Jabatan Pendaftaran Negara Malaysia & Ors [2023] 1 LNS 898; 6. Tan Lee Heng & Anor V Ketua Pengarah Jabatan Pendaftaran Negara & Ors [2018] MLRHU 1836; 7. Ong Xin Tong V Pendaftar Besar Kelahiran dan Kematian Malaysia & Anor [2022] 6 CLJ; 8. Lim Jen Hsian & Anor v Ketua Pengarah Jabatan Pendaftaran Negara & Ors [2017] 8 CLJ 412; 9. CCH & Anor v Pendaftar Besar Bagi Kelahiran Dan Kematian Malaysia [2023] 1 MLRA; 10. Teo Hock Guan & Anor v. Johore Builders & Investments Sdn Bhd [1996] 4 CLJ 184; 11. ST & Anor v Pendaftar Besar Kelahiran Dan Kematian Malaysia & Ors [2024] 3 CLJ 931; 12. Tan Soo Vin v Registrar General of Births And Deaths, Malaysia (Civil Appeal Court of Appeal W-01(A)-548-10/2020 (unreported) 13. Loh Kooi Choon V Government of Malaysia [1977] 2 MLJ 187; 14. Cornelia Muslie & Anor v Ketua Pengarah Pendaftaran Negara, Malaysia & Ors [2023] 1 CLJ 66; Legislation referred to: 1. S.4 of the National Registration Act 1959; 2. Regulations 4, 11 and 14 National Registration Regulations 1990; 3. s.33(1) of the Births and Deaths Registration Act 1957 [Act 299];