RYAN LEE KHANG SERN v 1. ) Ketua Pengarah Pendaftaran Negara, Malaysia (BA-24NCvC-572-04/2022)

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DALAM MAHKAMAH TINGGI MALAYA DI SHAH ALAM DALAM NEGERI SELANGOR DARUL EHSAN, MALAYSIA SAMAN PEMULA NO.: BA-24NCvC-572-04/2022 Dalam Perkara Artikel 14(1)(b), 18, 19,

Schedule

Jadual Kedua, Perlembagaan Persekutuan, Malaysia Dan Dalam Perkara Peraturan 5(3)(a) Peraturan-Peraturan Pendaftaran Negara 1990 dan Akta Pendaftaran Negara 1959 Dan Akta Relief Spesifik 1950 Dalam Perkara Aturan-Aturan 7 dan 73 Kaedah-Kaedah Mahkamah 2012 ANTARA RYAN LEE KHANG SERN (Sijil Kelahiran No. Daftar: AX89055) – PLAINTIF 28/12/2022 11:20:56 BA-24NCvC-572-04/2022 Kand. 32 DAN 1. KETUA PENGARAH PENDAFTARAN NEGARA MALAYSIA 2. KETUA SETIAUSAHA KEMENTERIAN DALAM NEGERI 3. KERAJAAN MALAYSIA – DEFENDAN-DEFENDAN GROUNDS OF JUDGMENT Introduction [1] This is the Plaintiff’s application in Enclosure 1 dated 18-4-2022, made pursuant to Articles in the Federal Constitution and Regulations made under and in relation for citizenship of Malaysia for the following orders: (a) deklarasi bahawa Plaintif ialah seorang warganegara Malaysia melalui operasi undang-undang menurut Artikel-Artikel 14(1)(b) dan/atau 16, Perlembagaan Persekutuan Malaysia. (b) deklarasi bahawa Plaintif ialah seorang warganegara Malaysia menurut Artikel 19 Perlembagaan Persekutuan Malaysia. (c) perintah mengarahkan Defendan-Defendan untuk mengeluarkan Sijil Kelahiran yang mencatatkan bahawa Plaintif merupakan warganegara Malaysia kepada Plaintif dalam tempoh 21 hari dari tarikh Mahkamah memerintahkan sedemikian. (d) perintah mengarahkan Defendan-Defendan untuk mengeluarkan Kad Pengenalan MyKad dengan catatan bahawa Plaintif adalah seorang warganegara Malaysia dalam tempoh 21 hari dari tarikh Mahkamah memerintahkan sedemikian. (e) perintah bahawa Defendan Pertama mendaftarkan (“register”) dan mengemaskinikan (“update”) nama Plaintif ke dalam pendaftar sepertimana di bawah Seksyen 4 Akta Pendaftaran Negara 1959 dan peraturan 11 dan 14 Peraturan-Peraturan Pendaftaran Negara 1960. (f) perintah dan/atau arahan lanjut yang Mahkamah ini fikir adil dan saksama. [2] The affidavits are filed accordingly and the full written submissions also had been filed by the parties [3] On 2-11-2022 the application is dismissed with no order to costs. The facts [4] The Plaintiff is a young boy age 21 years old. He is born on 21-7- 2001 at Pusat Pakar Arunamari Klang to his Malaysian father, Lee Chee Mong and his Indonesian mother Jenny. [5] His birth mother had left him and went untraced. [6] On 26-1-2016, the Plaintiff first came to realize that he is not a Malaysian citizen when his father tried to apply a My Kad for him. [7] He conducted a search with the First Defendant (Jabatan Pendaftaran Negara Malaysia/JPN) and based on the extracted birth certificate dated 13-1-2016 it was stated that the Plaintiff is “Bukan Warganegara”. [8] After 13 days realizing that the Plaintiff is “Bukan Warganegara”, his father had applied for a citizenship for him under Article 15A of the Federal Constitution. [9] Article 15A of the Federal Constitution provides “special power” to the Federal Government to register under “special circumstances” a non-citizen child who is under the age of 21 as a citizen. The said application is still pending decision of the Federal Government. [10] The fact derived that the Plaintiff is not born as an illegitimate child can be referred from his birth parents Lee Chee Mong and Jenny who were legally married on 21-4-2001 as per the marriage certificate. [11] The Plaintiff’s parents subsequently divorced on 23-5-2013 pursuant to a dekre nisi absolute issued by Shah Alam High Court which was registered with the First Defendant (JPN) on 21-4-2014. [12] The Plaintiff had not applied and had not obtained any foreign citizenship, foreign passport or foreign identification card specifically to his birth mother country, Indonesia. He is stateless. [13] Based on the documents, JPN claimed that there is an identity fraud committed by his birth mother in procuring their marriage certificate. His birth father denied and disclaimed it. Solemnization of the Plaintiff’s parent’s marriage [14] The learned counsel for the Plaintiff submit that the Plaintiff’s parents had a lawful marriage before the Plaintiff was even born and also a valid decree nisi absolute which would render the marriage and the divorce as prima facie valid and hence this would mean that the Plaintiff is a legitimate child and there are no issues and/or doubt regarding the legitimacy of the Plaintiff. In other words, the marriage between the Plaintiff’s biological mother and father have been registered for 21 years prior to the filing of this action. [15] The learned Senior Federal Counsel representing the Defendant’s case produced and gathered the following: (a) the Plaintiff’s birth mother Jenny who is an Indonesian had impersonated as a Malaysian by the name of “See Hooi” in registering the marriage with the Plaintiff’s birth father Lee Chee Mong. (b) the fraud was detected when they tried to register the birth of the Plaintiff. (c) as a result, in the Plaintiff’s Birth Registration Form (Borang Daftar Kelahiran) the Plaintiff’s birth parents amended the false identity of “See Hooi” back to “Jenny” and declared the original information of “Jenny” including that of her Indonesian nationality and her being “not married”. The investigation on “See Hooi”: (d) in the affidavit in reply No. 2 dated 4-7-2022 affirmed by Pengarah Bahagian Warganegara, JPN, stated that, the JPN’s investigation officer (Noor Iswany binti Ahmad, Bahagian Siasatan dan Penguatkuasaan, JPN, Negeri Kedah) had conducted an investigation on “See Hooi” and the findings are as follows: (i) the identity card bearing the numbers 791225-02-5158 is in the name of SEE HOOI. (ii) on 28-6-2022, SEE HOOI had been called and her statement been recorded. SEE HOOI had informed the investigation officer that in the year of 2022 upon registering her marriage at JPN Negeri Kedah, she found that there is a person who had impersonated and misused her identity card for marriage registration. (iii) SEE HOOI did not and never know Lee Chee Mong (IC No.: 750320-14-5499) who is the Plaintiff’s birth father. SEE HOOI did not marry Lee Chee Mong. (iv) SEE HOOI was married to Kee Wei Yeh (IC No.: 760519-09-5061) and their marriage was validly solemnized and registered under the certificate of marriage No.: KC05 078337. (v) SEE HOOI and Kee Wei Yeh were blessed with 2 sons namely, Kee Jackson and Kee Wilson. (vi) SEE HOI’s thumbprint in biometric system confirmed that the IC No.: 791225-02-5158 is belongs to SEE HOI. (vii) Bahagian Siasatan dan Penguatkuasan, JPN Negeri Kedah had confirmed that the individu who claimed to be the birth mother of the Plaintiff named Jenny is impersonator and had used SEE HOI’s identity card for the register of marriage with Lee Chee Mong vide register of marriage No.: A489780. (viii) in the birth registration of the Plaintiff also stated that Jenny is an Indonesia citizen and a non-Malaysia citizen. This fact is also in the Plaintiff’s affidavit dated 15-4-2022. Issues to be determined [16] In order for this Court to decide whether the Plaintiff is entitled for a Malaysia citizenship − (a) by operation of law that is automatic citizenship under Article 14(1)(b) read together with s. 1(a) and/or s.1(e) of Part II of the Second Schedule of the Federal Constitution? (*Note: the Plaintiff has dropped his claims for citizenship based on Article 18 and Article 19 of the Federal Constitution during the last hearing date on 29-9-2022) (b) whether the Plaintiff’s parents had a lawful marriage before the Plaintiff was born? (c) whether the Plaintiff is a legitimate child and whether there are no issues and/or doubt regarding the legitimacy of the Plaintiff because the divorce petition of the Plaintiff’s parents at the Shah Alam High Court was allowed the decree nisi absolute and been registered? (d) whether the Plaintiff’s case and Navin Dhillon’s case (the Kuala Lumpur High Court, O.S. No.: WA-24NCvC-1858- 09/2019) are identical and wherein the Kuala Lumpur High Court had granted citizenship to Nalvin Dhillon? (e) whether the has actions by the Defendants had caused the Plaintiff has legitimate expectation that he is granted with a Malaysia citizen? Evaluation and Findings [17] The disputes by the parties as in the affidavits respectively is whether the Plaintiff is born as a legitimate child to his birth/biological parents or not? [18] The fact that the Plaintiff’s birth/biological father, Lee Chee Mong, is a Malaysia citizen is undisputed. The fact that the Plaintiff’s birt/biological mother, Jenny, is an Indonesia citizen is undisputed. [19] The learned counsel for the Plaintiff strongly urged this Court to allow the Plaintiff’s application since this case is identical with the case of case Nalvin Dhillon, where Nalvin Dhillon’s father is a Malaysia citizen and Nalvin Dhillon’s mother is a Philippines citizen. [20] The Plaintiff was born on 21-7-2001 and his Birth Certificate was registered at JPN Daerah Klang on 1-8-2001 and his birth certificate No.: AX89055. The column at this Birth Certificate stated the Status of Citizenship of the Plaintiff is Non-Citizen (Bukan Warganegara). [21] The particulars of the father and mother, are – • Lee Chee Mong, IC No.: 750320-14-5499, Age: 26 years, Status of Citizenship: Citizen (Warganegara), Status of Residence: Maklumat Tidak Berkenaan. • Jenny, IC No.: Maklumat Tidak Diperolehi, Age: Tiada, Status of Citizenship: Non-Citizen (Bukan Warganegara), Status of Residence: Maklumat Tidak Berkenaan. [22] The above particulars clearly showed that the Plaintiff’s birth/biological mother is Jenny and she is a non-citizen. Who is SEE HOOI? [23] In the affidavit No. 1 dated 7-6-2022 by the Defendants, at Exhibit JPN-2, the document showed that the amendments were made in the Rekod Daftar Kelahiran Plaintif as follows: No. Part & Column in the Form Existing Amended 1. A (Mother’s IC No.) 791225025158 791225025158 2. D23 (Mother’s Name) SEE HOOI JENNY 3. D28 (Date of Birth) 25-12-1979 25-12-1979 4. D29 (Descendants) Cina Indonesia 5. D30 (Citizenship) Citizen Non-Citizen 6. D32 (Marriage Status) Married Not Married D33 (Date of Marriage) 21-4-2001 21-4-2001 [24] In the affidavit in reply dated 30-8-2022, the Plaintiff himself stated the objections against the Defendants’ affidavits and averred that – “9. Saya juga menyatakan bahawa dokumen-dokumen pendaftaran kelahiran saya semuanya betul dan teratur serta diterima tanpa bantahan oleh JPN. 10. Saya tidak dimaklumkan atau diberitahu dalam apa cara sekalipun pada masa material oleh kerajaan Malaysia bahawa saya bukan warganegara Malaysia pada masa pendaftaran kelahiran saya di Jabatan Pendaftaran Negara Malaysia (JPN). 11. Oleh itu, saya menyatakan bahawa tindakan kerajaan telah menimbulkan jangkaan yang sah (legitimate expectation) agar hak saya diberi kerakyatan Malaysia ditunaikan. 12. Saya juga menyatakan bahawa sekiranya terdapat kegagalan di pihak JPN untuk menunaikan dan melaksanakan tanggungjawab mereka di sisi undang-undang atau kesilapan dalam pentadbiran kerajaan berhubung dengan pendaftaran perkahwinan ibu bapa saya, ia tidak boleh sama sekali melucutkan hak saya ke atas kewarganegaraan Malaysia. 13. Saya juga menyatakan bahawa hak perlembagaan saya untuk kewarganegaraan Malaysia tidak boleh dirampas atau ditolak kerana sebarang tindakan cuai yang dilakukan oleh kerajaan Malaysia. 14. Berdasarkan perkara di atas, saya telah dinasihati oleh peguam saya dan sesungguhnya percaya bahawa keputusan dan/atau tindakan kerajaan dalam menolak dan/atau menangguhkan untuk memberikan saya Kad Pengenalan Malaysia adalah dibuat ultra vires dan dicemari dengan ketidakrasional (irrationality), menyalahi undang-undang (illegality) dan ketidakwajaran prosedur (procedural impropriety).”. [25] The replies by the Plaintiff on the records as entered, recorded and registered by the First Defendant are merely statements and no other proof given by the Plaintiff. As this country had only one authority that keep all the information and data of the birth and death person in this country, JPN is the sole authority to verify the amendments made in the important document that is Rekod Daftar Kelahiran Plaintif. [26] The amendments were disclosed by the First Defendant through its records and investigation on SEE HOOI. Based on the affidavits by the Defendants, this Court finds that in the Plaintiff’s statements – • dokumen-dokumen pendaftaran kelahiran saya semuanya betul dan teratur serta diterima tanpa bantahan oleh JPN, is an admission that JPN is not negligent. JPN had registered all the information as written by the applicant. • Saya tidak dimaklumkan atau diberitahu dalam apa cara sekalipun pada masa material oleh kerajaan Malaysia bahawa saya bukan warganegara Malaysia pada masa pendaftaran kelahiran saya di Jabatan Pendaftaran Negara Malaysia (JPN), there is no duty and/or obligation by JPN specifically and Government of Malaysia generally to inform and/or to notify the Plaintiff. The clear fact is that the Plaintiff’s birth father is a Malaysia citizen and the Plaintiff’s birth mother is an Indonesia citizen. [27] Next issue to be determined is about the legitimacy status of the Plaintiff and the Plaintiff’s parent’s marriage. The Plaintiff’s statement that “Saya juga menyatakan bahawa sekiranya terdapat kegagalan di pihak JPN untuk menunaikan dan melaksanakan tanggungjawab mereka di sisi undang-undang atau kesilapan dalam pentadbiran kerajaan berhubung dengan pendaftaran perkahwinan ibu bapa saya, ia tidak boleh sama sekali melucutkan hak saya ke atas kewarganegaraan Malaysia.” is also the same as the Plaintiff’s learned counsel submission (in Enclosure No. 27) − “5. The Defendants alleged that the Plaintiff is an illegitimate child, however, the Plaintiff’s biological father and mother had registered their marriage on 21-4-2001 and the Plaintiff was born on 21-7-2001 and his birth certificate was registered on 1-8-2001 which was after the Plaintiff’s parent’s marriage had been lawfully registered. In other words, the Plaintiff’s parent’s marriage had been registered for 21 years prior to the filing of this suit.”. 6. Also, the Plaintiff’s biological father had filed a divorce petition in the Shah Alam High Court (Divorce Petition No.: 33-294- 05/2013) and on 11-2-2014, the Shah Alam High Court allowed the divorce petition. On 10-4-2014, it is a decree nisi absolute and then registered with the First Defendant on 21- 4-2014. 7. We submit that the Plaintiff’s parent had a lawful marriage before the Plaintiff was even born and also a valid decree nisi absolute which would render the marriage and the divorce as prima facie valid and hence this would mean that the Plaintiff is a legitimate child and there are no issues and/or doubt regarding the legitimacy of the Plaintiff.”. Are there any issues and/or doubt regarding the legitimacy of the Plaintiff? [28] The Defendants had filed a total of 4 affidavits where the documents exhibited showed that the Plaintiff’s birth/biological mother Jenny had used and impersonated a person name SEE HOOI. [29] In registering the marriage, the identity of SEE HOOI was used by Jenny. In the investigation by JPN, SEE HOOI’s statement was recorded and she affirmed that she had lost her identity card once upon a time and her husband is not Lee Chee Mong. [30] In registering the marriage of the Plaintiff’s parent, Jenny had used the identity of SEE HOOI. In the Defendants’ affidavit No. 3 dated 16-8- 2022 (Enclosure 28), the First Defendant stated that the solemnization of the Plaintiff’s parent’s marriage was held at Persatuan Hokkien Klang on 21-4-2001 whereby the solemnization was fully conducted by the temple in accordance with section 24 of the Law Reform (Marriage and Divorce) Act 1964. Here, JPN had no knowledge and did not realize that the identity of the bride (Jenny) is fake because the registration of the marriage was conducted manually. The registration of the marriage was fraudulently obtained. Jenny is not the real SEE HOOI. [31] Since there is no valid registration of marriage between Lee Chee Mong and Jenny when the Plaintiff was born, the status of Plaintiff is an unlegitimate child. [32] In registering the birth of the Plaintiff, the particulars of the mother are obvious that the Plaintiff’s mother is Jenny and not the real SEE HOOI. The amendments in the birth application form had disclosed that Jenny is a non-citizen and marriage status is Not Married. [33] The learned counsel for the Plaintiff had affirmed an affidavit dated 21-4-2022 (Enclosure 3) to support the Plaintiff’s application for the citizenship. The learned counsel for the Plaintiff had produced and exhibited a DNA Report dated 25-3-2022 that Lee Chee Mong is the biological father of the Plaintiff and Lee Chee Mong is a Malaysia citizen. [34] This Court finds that the issue is not to deny the identity of the Plaintiff’s birth/biological father. Nobody asked about this issue. The status of citizenship of the Plaintiff’s birth/biological father is a Malaysian. [35] The real and important issue is when the Plaintiff was born without a valid marriage of the parent, then status of legitimacy arose. The Plaintiff’s in his affidavit had stated that – “Saya juga menyatakan bahawa sekiranya terdapat kegagalan di pihak JPN untuk menunaikan dan melaksanakan tanggungjawab mereka di sisi undang-undang atau kesilapan dalam pentadbiran kerajaan berhubung dengan pendaftaran perkahwinan ibu bapa saya, ia tidak boleh sama sekali melucutkan hak saya ke atas kewarganegaraan Malaysia.”. [36] In the Defendants affidavits, this Court could not find any fault nor failure in the part of the Defendants in registering the Plaintiff’s parent’s marriage. The affidavits of the Plaintiff were affirmed by the Plaintiff, the birth/biological father and the Plaintiff’s solicitor. There is no affidavit from the Plaintiff’s birth/biological mother who is untraceable and also no affidavit from the Persatuan Hokkien Klang. Is the divorce petition conclusive proof that the Plaintiff’s parent’s marriage is valid? [37] The divorce process filed by the Plaintiff’s parent is outside the boundaries of the Defendants. JPN was not a party to the divorce petition proceeding. [38] In paragraph 5.2 and 5.3 of the Defendants’ affidavit No. 3 dated 16-8-2022 (Enclosure 14), the Defendants had stated that – “5.2 JPN bukan merupakan satu pihak dalam prosiding perceraian di mahkamah Tinggi dan Mahkamah Tinggi juga tidak membuat sebarang semakan/siasatan berkenaan identiti SEE HOOI semasa membeikan perintah perceraian tersebut. 5.3 JPN hanya berperanan untuk mengemaskinikan status perkahwinan setelah pihak-pihak mengemukakan keputusan perceraian/pembatalan perkahwinan oleh Mahkamah Tinggi selaras dengan seksyen 107 Akta 164. Maka, surat dalam Eksibit RLK-2 hanyalah surat pemakluman berhubung status cerai yang dibuat oleh pihak JPN selaras dengan arahan Mahkamah Tinggi di dalam Sijil Menjadikan Dekri Nisi Mutlak.”. [39] This Court had examined the exhibits both for the marriage and divorce of the Plaintiff’s parent. All the particulars of the bride who is the Plaintiff’s mother had used the identity of SEE HOOI. The investigation done by JPN clearly proved that the one who married Lee Chee Mong is not the real SEE HOOI. The bride is Jenny, the Indonesian citizen. [40] The solicitor who represented the petitioner and filed the divorce petition at the Shah Alam High Court for the Plaintiff’s parent was Tetuan Choo Kok Hon & Co., Jalan Puchong, Kuala Lumpur. The case is Petisyen Perceraian No.: 33-294-05/2013 and the parties are Lee Chee Mong (No. K/P: 750320-14-5499) And See Hooi (P) (No. K/P: 191225-02- 5158) a.k.a Jenny (Indonesia Pasport No. MO 61771). [41] The information pertaining to the Plaintiff’s birth/biological mother in this divorce petition stated “See Hooi (P) (No. K/P: 191225-02-5158) a.k.a Jenny (Indonesia Pasport No. MO 61771)”. There is no explanation by the Plaintiff’s birth/biological father and the solicitor from Tetuan Choo Kok Hon & Co. about the “a.k.a Jenny (Indonesia Pasport No. MO 61771)”. [42] The trail of “a.k.a Jenny (Indonesia Pasport No. MO 61771)” should started from the beginning of the marriage journey of the Plaintiff’s parent’s marriage and not only begins when the divorce petition been filed. The Shah Alam High Court in hearing the Petisyen Perceraian No.: 33-294-05/2013 and making the certificate of the decree nisi absolute is and never to be blamed. The parties including the solicitor must come with clean hands, accurate and true information. The case of Nalvin Dhillon at the Kuala Lumpur High Court Summons No.: WA-24NCvC-1858-09/2019 [43] The learned counsel for the Plaintiff submitted that similar facts between the Plaintiff’s case and Nalvin Dhillon’s case. The High Court had allowed and granted citizenship to Nalvin Dhillon on 5-4-2022. But this Court had dismissed and did not grant citizenship to Ryan Lee Khang Sern (the Plaintiff) on 2-11-2022. [44] In the judgement of this Court pronounced on 2-11-2022, the reasons for not following the decision of the Kuala Lumpur High Court, are namely – “[21] SFC terpelajar juga tidak menjawab atau memberikan maklum balas mengenai penggantungan Plaintif kepada kes MTKL OS No.: WA-24 NCvC-1858-09/2019 yang mana deklarasi dan relief yang dipohon adalah serupa dengan permohonan Plaintif ini. [22] Sebagaimana yang dinyatakan dalam perenggan [17] penghakiman ini, selain daripada Mahkamah ini tidak terikat dengan keputusan MTKL OS No.: WA-24 NCvC-1858-09/2019, fakta permohonan bagi kedua-dua kes adalah berbeza.”. [45] The learned counsel for the Plaintiff submitted in paragraph 2 of the Plaintiff’s Written Submission in Reply as follows: “2. The similar facts between the Plaintiff and Nalvin Dhillon’s case are as follows: 2.1 Both the Plaintiff and Nalvin Dhillon’s fathers are Malaysian Citizens. 2.2 The Plaintiff’s mother is an Indonesian citizen and Nalvin Dhillon’s mother is a Philippines citizen. 2.3 Both the Plaintiff and Nalvin Dhillon’s parents registered their marriage with Jabatan Pendaftaran Negara, Malaysia (JPN). 2.4 Both the Plaintiff and Nalvin Dhillon applied for a Malaysian identification card (My Kad) and discovered their Birth Certificate stated “BUKAN WARGANEGARA”. 2.5 Both the Plaintiff and Nalvin Dhillon made application for citizenship to Jabatan Pendaftaran Negara, Malaysia (JPN). 2.6 Nalvin Dhillon made 3 applications for citizenship to JPN but all 3 applications were unsuccessful. However, in the Plaintiff’s case, the Plaintiff made 1 application for citizenship to JPN (First Defendant) but there was no decision made till to date by JPN (First Defendant) whereby 9 years had passed, nonetheless, the Plaintiff had not received any approval or denial of the said application by the JPN (First Defendant). 2.7 Both the Plaintiff and Nalvin Dhillon are not a citizen of any country and have not applied for a citizenship of any country except Malaysia. 2.8 Both the Plaintiff and Nalvin Dhillon completed government exams such as Ujian Penilaian Sekolah Rendah (UPSR), Penilaian Menengah Rendah (PMR) and Sijil Pelajaran Malaysia (SPM) in the government schools. 3. The facts between the Plaintiff’s case and Nalvin Dhillon’s case are identical and/or similar wherein the High Court granted citizenship to Nalvin Dhillon and the Plaintif humbly prays for order in terms of the Originating Summons with costs. 4. Referring to paragraphs 58 to 59 of the Plaintiff’s Written Submission filed herein wherein the facts of the Madhuvita and Lin Jen Hsians’ cases are similar to the facts in the Plaintiff’s case as such it is the Plaintiff’s submission that based on the principles af the stare decisis, the Plaintiff’s case should also be decided in a similar manner. In both Madhuvita and Lim Jen Hsians’ case, citizenships were granted by the First Defendant.”. [46] This Court disagree that the Plaintiff’s case and Nalvin Dhillon’s case are similar and identical hence this Court must grant Malaysia citizenship to the Plaintiff. The Plaintiff’s case and Nalvin Dhillon’s case can be differentiated on these points – (a) the learned counsel for the Defendants in its Revised Submission dated 27-10-2022 stated that “The said application is still pending decision of the Federal Government”. This fact also derived and submitted in the learned counsel of the Plaintiff’s submission, that is in paragraph 2.6 “the Plaintiff made 1 application for citizenship to JPN (First Defendant) but there was no decision made till to date by JPN (First Defendant) whereby 9 years had passed, nonetheless, the Plaintiff had not received any approval or denial of the said application by the JPN (First Defendant).”. Article 15A of the Federal Constitution provides “special power” to the Federal Government to register under “special circumstance” a non-citizen child who is under the age of 21 as a citizen. Up and until the Federal Government examine and decide on the Plaintiff’s application for Malaysian citizenship, this Court should not decide in favour of the Plaintiff. (b) on the status of Plaintiff as illegitimate child. The fact that the Plaintiff was born as an illegitimate child to his Indonesian mother and his Malaysian father is declared and signed by both the Plaintiff’s birth/biological parent. This is proved by the Defendants. The documents as per the records kept by the First Defendant were not denied. There is no negligent or fault by the First Defendant in these records. (c) in Nalvin Dhillon’s case, there is no grounds of judgment of the Kuala Lumpur High Court decision. Be that as it may, the learned counsel for the Plaintiff just urged this Court to grant the Malaysia citizen to the Plaintiff as granted to Nalvin Dhillon. In the Plaintiff’s case, as an illegitimate child, the Plaintiff’s nationality shall follow that of his Indonesian mother (refer to s. 17 of Part III of the Second Schedule of the Federal Constitution). The Law and Authority of Cases on Citizenship [47] The Plaintiff’s application made under Article 14(1)(b), Second Schedule of the Federal Constitution, Akta Pendaftaran Negara 1959 and the Regulations made under the Act, Specific Relief Act 1950, O. 7 and 73 Rules of Court 2012. The learned counsel for the Plaintiff had referred to the cases of − (a) Madhuvita Janjara Augustin (Suing Through Next Friend, Margaret Louisa Tan) v. Augustin Lourdsamy & Ors Court of Appeal, Putrajaya [2018] 4 Clj 758, the Court of Appeal’s decision. Facts: The appellant was born on 28 November 2005 to her mother, a citizen of Papua New Guinea and her father (‘the first respondent’), a Malaysian citizen. Her parents only married on 23 January 2006 after the appellant was born. Both the appellant’s mother and father were not aware that the appellant’s birth was not registered until they wanted to enrol the appellant for primary education at a local school. The appellant’s birth was then registered on 18 April 2011 and according to the details entered in the birth certificate issued to her by the Registrar of Births and Deaths (‘third respondent’), the appellant was not a citizen of Malaysia. The first respondent subsequently applied for citizenship for the appellant under art. 15A of the Federal Constitution (‘the FC’) but the application was unsuccessful. The appellant thus applied before the High Court for, amongst others, an order that she be re- registered by the third respondent, with the status of a ‘Malaysian citizen.’ The issue before the High Court was whether the appellant may be granted citizenship by operation of law pursuant to art. 14(1)(b) of the FC. The High Court held that matters concerningcitizenship were non-justiciable and outside the purview of the court and refused the application on the basis that the appellant did not fulfil both conditions prescribed in art. 14(1)(b) read with s. 1(a) of Part II of the Second Schedule of the FC. Although the appellant had fulfilled the first condition in that she was born in the Federation, she did not meet the second condition which required at least one of her parents to be, at the time of her birth, a Malaysian citizen or was ordinarily resident in the Federation. According to the High Court, this second condition was not met because her parents were not lawfully married to each other at the time of her birth. The High Court further found that the appellant was actually entitled to citizenship under the laws of Papua New Guinea as her mother was a citizen there; and that the appellant ought to apply for her citizenship in Papua New Guinea. Hence, this appeal. Held (allowing appeal) Per Mary Lim JCA delivering the judgment of the court: (1) Matters concerning citizenship, as a whole host of other subjects found in the FC, are within the purview of the courts. It is only the decisions of the Federal Government under Part III that are not open to appeal or review in any court. xxx (3) The appellant specifically claimed citizenship by operation of law as set out in art. 14(1)(b) read with s.1(a) and/or (e) of Part II of the Second Schedule. In the case of art. 14(1)(b) read with s. 1(a) Part II, Second Schedule of the FC, citizenship by operation of law was anchored on elements of both concepts of jus soli and of jus sanguinis. Citizenship is claimed by virtue of these two rights, right of being born in the territory of Malaysia and by right of one or both parents who are citizens of Malaysia. The appellant was born within the Federation. To the extent of jus soli, she had fulfilled the terms of qualification set out at s. 1(a) of Part II of the Second Schedule. The first respondent was the biological father of the appellant, and was a parent of the appellant and a citizen of Malaysia at the time of the appellant’s birth. Thus, the terms of art. 14(1)(b) read with s. 1(a) of Part II, Second Schedule were met. The fact that the biological parents of the appellant were not married to each other at the time of the appellant’s birth did not alter or diminish their capacities as parents of the appellant. (paras 42-60) (4) The appellant was born of parents who were not married to each other at the time of her birth and was known as a child born out of wedlock. However, she was no longer illegitimate by reason of legitimation by the subsequent marriage of her parents. Their marriage had been properly solemnised and recognised under s. 3 of the Legitimacy Act 1961 (‘the Act’). With the clear terms of s. of the Act, the appellant was rendered legitimate by the subsequent marriage of her parents. As a legitimate person, the appellant was entitled to rely on her father’s citizenship. The appellant had properly made her claim for citizenship and this was an appropriate and suitable case for the grant of the declaratory order sought. The appellant had fulfilled the requirements of art. 14(1)(b) read with s. 1(a) of Part II of the Second Schedule of the FC. (paras 62- 68) (5) The appellant had lived all her life in the Federation, and had no intention of applying for citizenship of Papua New Guinea. The appellant’s birth was not registered in Papua New Guinea and was registered here instead. If the declaration sought was not given if the appellant was not a citizen of the Federation, then she was Stateless. That state would not and could not be said to be in the best interest and for the welfare of the appellant. Consequently, the appellant satisfied the terms of art. 14(1)(b) read with s. 1(e) of Part II of the Second Schedule to the FC. (paras 70 & 77) (6) This court was compelled to exercise its appellate powers and intervened in this appeal so as to set right the decision of the High Court. (b) Lim Jen Hsian & Anor v. Ketua Pengarah Jabatan Pendaftaran Negara & Ors [2017] 8 CLJ 412, the Court of Appeal’s decision. Facts: The second appellant was born on 6 October 2010 in Kuala Lumpur. His biological mother (‘Rai Putta’) was a citizen of Thailand whilst his biological father was the first appellant, a Malaysian citizen. The first appellant and Rai Putta were never married and/or had not registered their marriage. Subsequently, the first appellant and Rai Putta separated when Rai Putta returned to Thailand, leaving the second appellant under the care of the first appellant. The first appellant applied for the second appellant’s citizenship under art. 15A of the Federal Constitution (‘FC’) but the application was dismissed. The first appellant thus obtained leave to apply for judicial review. The issues raised before the High Court in the judicial review application were: (i) whether the appellants had fulfilled the requirements to obtain citizenship by operation of law as stipulated by art. 14(1)(e) of the FC; and (ii) whether the issue in the judicial review application was non-justiciable under Part III, Second Schedule of the FC. The High Court dismissed the appellants’ application holding that the matter surrounding judicial review application concerned a decision made pursuant to Part III of the FC, a matter which is non-justiciable. The High Court also found that the appellants had failed to satisfy the requirements of s. 1(e) of Part II of the Second Schedule of the FC. Hence, this appeal. Held (dismissing appeal) Per Badariah Sahamid JCA delivering the judgment of the court: (1) The ouster provision in the Schedule to the FC did not preclude the court from entertaining the application for an order of certiorari. Whether the grounds for an order can be established and whether the application for certiorari will succeed are matters to be decided in the substantive motion itself. Thus, s. 2 of Part III of the Second Schedule to the FC does not absolutely preclude the jurisdiction of the court. (paras 24 & 25) (2) Article 14(1)(b) of the FC 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 FC encapsulates the requirement of citizenship by jus sanguinis ie by blood or lineage. The second appellant had 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 FC. The second appellant was born after Merdeka Day in the Federation in Kuala Lumpur, Malaysia, thus, fulfilling the requirement of jus soli in art. 14(1)(b) of the FC. (paras 27, 28 & 31) (3) The second appellant’s lineage would only be traceable to his Malaysian biological father provided that his parent was in a lawful marriage. In the case of an illegitimate child, the word ‘parent’ is construed to refer to his biological mother. Therefore, although the second appellant was born in the Federation, he did not acquire citizenship from his Malaysian biological father. He acquired the citizenship of his biological mother who was a Thai national. Thus, he could not be said to be one ‘who is not born a citizen of any country’ pursuant to s. 1(e) of Part II, Second Schedule of the FC. (paras 36-40) (4) Pursuant to s. 103 of the Evidence Act 1950, the burden of proof was on the appellants to establish on the balance of probabilities that the second appellant ‘was not born a citizen of any country’. The burden would only shift to the respondents to prove positively that the second appellant was born a citizen of a foreign country once the appellant had established a prima facie case. However, the appellants had failed to prove a prima facie case that the second appellant was ‘not born a citizen of any country’ and therefore, the burden of proof had not shifted to the respondents. Thus, the issue of whether expert opinion is required by the respondents to prove that the second appellant had acquired Thai citizenship at birth did not arise. The second appellant had thus failed to satisfy the requirements stipulated in s. 1(e) of Part II, Second Schedule of the FC, to obtain citizenship by operation of law. (paras 33, 35, 41 & 42) [48] The learned Senior Federal Counsel for the Defendants cited the cases of – (a) CTEB & Anor v. Ketua Pengarah Pendaftran Negara Malaysia & Ors [2021] 4 MLJ 236/[2021] 6 CLJ 471. The Federal Court’s decision. Facts: The issue that arose in this appeal was whether an illegitimate child born outside Malaysia, to a Malaysian biological father and a Filipino mother, was entitled to become a citizen by operation of law pursuant to art. 14 of the Federal Constitution (‘FC’). The first appellant was a minor male born out of wedlock on 27 October 2010 in the Republic of the Philippines. His mother was a citizen of the Republic of the Philippines. The second appellant was the first appellant’s father, a Malaysian citizen. The first appellant’s parents married on 22 February 2011, four months after he was born. The first appellant was subsequently legitimated under s. 4 of the Legitimacy Act 1961 (‘Legitimacy Act’). The first appellant, his mother and the second appellant were domiciled in Malaysia. The first and second appellants filed an originating summons (‘OS’), principally, for declarations to the effect that the first appellant was a citizen by operation of law under art. 14(1)(b) of the FC. The High Court, in interpreting art. 14(1)(b) of the FC together with the provisions of Parts II and III of the Second Schedule, held that the first appellant, being an illegitimate child, was not allowed to take after the citizenship of his father, the second appellant. This limited his lineage to his mother and since she was not a Malaysian citizen, the first appellant was not entitled to citizenship by operation of law under s. 1(b) of Part II of the Second Schedule. The fact that the first appellant was legitimated upon his parents’ marriage subsequent to his birth was immaterial to the construction of the provisions of the FC. The thrust of the reasoning was that s. 17 of Part III of the Second Schedule qualifies the application of Part II, specifically s. 1(b) thereof. The important point to note on the material finding of the High Court was that legitimacy must be assessed from the time of birth. Only if the first appellant was legitimate at the time of birth would he automatically qualify for citizenship by operation of law under art. 14(1)(b) of the FC. Premised on the above reasoning, the appellants’ prayer for the declaration in Prayer 1 of the OS was accordingly refused. The Court of Appeal agreed with the reasoning of the High Court and affirmed it. The Court of Appeal also held that the first appellant was a holder of aFilipino passport and accordingly he committed an act which would deprive him of Malaysian citizenship under art. 24 of the FC. Aggrieved by the concurrent decisions of the courts below, the appellants filed a motion for leave to appeal to this court, which was allowed on the following four questions of law (‘questions’): (i) whether it was proper to import into Part II Section 1(b) of the Second Schedule to the FC any other requirements for the citizenship of a child born to a Malaysian father other than those expressly stated in the provision (‘question 1’); (ii) whether the words ‘born outside the Federation’ in Part II Section 1(b) of the Second Schedule to the FC could be properly read as requiring that the child not hold any other citizenship and/or passport or be stateless to qualify for Malaysian citizenship by operation of law (‘question 2’); (iii) whether the fact that the biological parents of the child who were not married to each other at the timeof the child’s birth but were subsequently married, disqualified the child from acquiring a Malaysian citizenship by operation of law pursuant to art. 14(1)(b) and Part II s. 1(b) of the Second Schedule of the FC (‘question 3’); and (iv) whether, having met the qualifications for citizenship by operation of law under art. 14(1)(b) read together with Part II s. 1(b) of the Second Schedule of the FC, the courts could arbitrarily impose further qualifications which are not within the said article (‘question 4’). Held (dismissing appellants’ appeal) Per Rohana Yusuf PCA (for the majority): (1) The child in the present appeal was born outside the Federation, hence art. 14(1)(b) of the FC applied to him. Article 14(1)(b) refers to the requisite qualifications specified in Part II of the Second Schedule. Under Part II of the Second Schedule, s. 1 lists five situations to qualify for a citizenship pursuant to art. 14 which are in s. 1(a) to (e). Section 1(b) Part II of the Second Schedule, ipso facto, calls into operation the provisions pertaining to citizenship under Part III. Section 17 opens with the words ‘For the purposes of Part III.’ Therefore, in whichever way one looks at it, s. 17 could not be detached from s. 1(b). Ignoring the application of s. 17 would also render art. 31 of the FC as otiose. (paras 38, 39 & 43) (2) Section 17 provides for reference to the ‘father’ of an illegitimate child to refer to his ‘mother’. The only clear meaning to be concluded therefore is that the child’s citizenship follows that of his mother. There is nothing ambiguous about s. 17 to permit other rules of interpretation. From the express distinction for parents or father of an illegitimate child in s. 17, it is obvious that the word ‘parents’ in the context of Part III of the FC must be construed to refer to lawful parents in a recognised marriage in the Federation. This country never legally recognised unwedded parents. Proper distinctions have always been made in our legislation in order to differentiate between the status of ‘parents’ in a recognised marriage or otherwise. Even under s. 13 of the Births and Deaths Registration Act 1957, the legislation makes a clear distinction between a father or mother of an illegitimate child. This connotes that ‘parents’ refers always to legally wedded parents, not to a biological father and mother. (paras 44 & 45) (3) The relevant provisions relating to the citizenship by operation of law in the FC must be read as a whole and to be given a straightforward plain meaning. It is improper to interpret one provision of the FC in isolation from the others. Especially so, when the clauses indeed are written to be subjected to the other. To half read the provision by ignoring that s. 1 must be read ‘Subject to the provisions of Part III’ is to deny the clearly express terms of the FC. The FC must always be considered asa whole so as to give effect to all its provisions. The fundamental rule in interpreting the FC or any written law is to give effect to the intention of the framers. The court could not 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 could reasonably bear more than one meaning. Section 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. (paras 46-48) (4) Acquisition of citizenship by operation of law requires the fulfilment of the requisite conditions at the time of birth. The subsequent marriage of the parents would not change the birth status of the child as an illegitimate child. Section 4 of the Legitimacy Act only deems a person legitimate from the prescribed date or from the date of the parents’ marriage, whichever was the later. Section 9 of the same Act merely provides for the legal rights of a legitimised person to be equivalent to those of a legitimate child. The effect of s. 9 of the Legitimacy Act must be confined to the ambit of its operability and its interpretation should not be stretched to supplement the provisions of the FC in matters relating to citizenship. There was no mention made for the rights of citizenship in the Legitimacy Act. And no corresponding provision in the FC that deems legitimisation confers the right to citizenship. Nothing in the Legitimacy Act confers the birthright of a citizenship under art. 14 and its incidental provisions. Hence, it would be incorrect to apply and superimpose the Legitimacy Act to the provision of citizenship in the FC. The qualification of acquiring citizenship by operation of law must be met at birth. If the qualifications are not met, this court was not at liberty to add and subtract any other or qualifications which the FC states otherwise. (paras 52, 61, 81 & 82) (5) xxx (6) Since the FC discriminates between a legitimate and an illegitimate child, a father and a mother of an illegitimate child, could the court alter that discrimination so as to keep the FC dynamically alive in order to avoid it from being locked and fossilised in 1963? This whole issue begged the question of whether the Judiciary in the exercise of its judicial duty is constitutionally empowered to ignore or neglect the clear dictates of the FC and overcome that authorised gender bias in the name of progressive construction of the FC. There is no judicial supremacy articulated in the FC, and the power to amend the Constitution rests solely with Parliament by virtue of art. 159. The court could not at its own whims and fancies attempt to rewrite the clear written text of the FC because it would only lead to absurdity. (paras 88 & 89) (7) The Legitimacy Act, as well as the Adoption Act, do not apply to Muslims. Applying these laws to construe art. 14 would necessarily lead to discriminating against a Muslim child who cannot be legitimised or legally adopted. An illegitimate or adopted Muslim child cannot acquire citizenship by operation of law if these laws are to be resorted to. If the framers of the FC intended such religious discrimination, they would have worded it clearly in the FC in a similar tone as discriminating against an illegitimate child. Whilst it authorises discrimination on legitimacy and gender, it does not authorise discrimination on the basis of religion on the issue of citizenship. Is the court in holding the supremacy of the Constitution to indulge in amending clear words touphold and prohibit discrimination which the FC authorises? This would lead to unauthorised discrimination of the application of the laws between Muslims and non-Muslims. This form of discrimination offends the very protection envisaged by art. 8 and the court must not construe art. 14 to create discrimination that the FC prohibits. (paras 90 & 91) (8) Article 24 is a citizenship-deprivation provision which could only apply to a person who is already a citizen of Malaysia. There could not be a deprivation of citizenship until citizenship has first been conferred on the child. The acquisition of a foreign citizenship and the discretion of the Federal Government to deprive any citizen of its citizenship under art. 24 are not relevant factors in determining whether a child is entitled to citizenship by operation of law under art. 14(1)(b). In the present case, the child’s acquisition of a Philippines passport which led to him being presumed a citizen of the Philippines was not a legally disqualifying factor to him acquiring Malaysian citizenship. (paras 92 & 93) (9) In answering question 1, once the entire art. 14(1)(b) and s. 1(b) of Part II of the Second Schedule of the FC is read together with the interpretation provision in the FC, in particular s. 17 of Part III of the Second Schedule, in order to determine the qualifications necessary for the acquisition of citizenship by operation of law, there was no necessity to adopt any other requirement to construe the provisions. Hence, the Legitimacy Act or any other law was therefore not to be read into the provisions. In view of the answer to question 1, this court declined to answer question 2, question 3 and question 4. The orders of the High Court as affirmed by the Court of Appeal were maintained. (paras 94 & 95) Per Tengku Maimun Tuan Mat CJ (dissenting): (1) The ultimate issue in this appeal related to the interpretation of art. 14(1)(b) of the FC and Parts II and III as regards the first appellant’s right to citizenship by operation of law. As the right of any person to citizenship comprises the right to liberty, the provisions of art. 5(1) of the FC are relevant. Since the issue concerned the right of a person based on the distinction of the citizenship status of their parents or in any case, the distinction between the right of illegitimate and legitimate children to citizenship, the right of equality before the law and equal protection of the law under art. 8(1) was also materially relevant. As such, in construing the provisions of the FC strictly on the basis of the text of the FC alone, this court ought to have regard to the purposive cannon of construction given that the fundamental rights of a person under arts. 5(1) and 8(1) are intertwined. In that regard, the relevant provisions of the FC relating to citizenship must be construed contextually. (paras 131 & 132) (2) xxx (3) The second appellant claimed to be the father of the first appellant and, to this end, had even adduced a DNA test to establish incontrovertibly that he was the father biologically and in law. The ‘blood relation’ element of jus sanguinis which s. 1(b) of Part II codified in part had therefore been met. Additionally, art. 5(1) of the FC guarantees the right to life and personal liberty. Reading art. 5(1) broadly and prismatically, the right to life must include the right to nationality (see generally art. 15 of the Universal Declaration of Human Rights 1948 which provides that everyone has a right to nationality which right is not inconsistent with the FC). The logical conclusion therefore was that, having regard to the historical and purposive cannons on construction, as borne out from the foregoing interpretive exercise, the word ‘father’ in s. 1(b) of Part II and anywhere else relevant to the context of this appeal ought to be construed as meaning ‘biological father’. Thus, the legitimacy status of any person claiming citizenship under art. 14(1)(b) read together with Part II is an irrelevant factor in cases where paternity is known and the said biological father is a citizen of Malaysia and has met the rest of the requirements of s. 1(b) of Part II. (paras 170-172) (4) Instances of discrimination would arise if one were to read s. 17 of Part III as qualifying the application of s. 1(b) of Part II of the said Schedule. In a case where the parental status of a child is known but the child is born out of wedlock, interpreting s. 17 of Part III in the manner advanced by the respondents has the effect of discriminating against the father of the person claiming to be entitled to citizenship by operation of law. The fathers are essentially deemed non-existent and the fact of paternity is ignored. Another instance relates to the jus sanguinis principle which s. 1(b) of Part II partly encapsulates. By this biological criterion, the only element that needs to be proved, apart from the other requirements of that section, is that, the father is a Malaysian citizen. It matters not that the child is legitimate or illegitimate. However, if one were to accede to the interpretation accorded by the respondents, the jus sanguinis principle is effectively rendered otiose for an illegitimate child. The discrimination between the father and mother was expressly in violation of art. 8(2) of the FC which provides that there shall be no prohibition against any citizen on grounds of gender in any law. ‘Law’ includes the FC. The word ‘citizen’ in this case referred to the father of the person through whom he sought to base his claim to citizenship. The respondents’ reading of s. 17 of Part III, as qualifying s. 1(b) of Part II, was unsustainable in light of this clear prohibition against discrimination on grounds of gender in any law as inserted into art. 8(2) by Parliament in 2001. (paras 181-183, 187 & 188) (5) While there may be an apparent differentia between legitimate children and illegitimate children or between their biological fathers on the one side or mothers on the other, it was not an intelligible differentia in that the differentiation had no nexus or connection to any policy or object sought to be achieved by the statute, in this appeal, the FC itself. Whatever one may say or consider about the concept of legitimacy, there is, at the end of the day, no fault on the part of the person who was born illegitimate. They have absolutely no control over their status. There was an incapability to discern any nexus to any sound objective or policy to deny a person citizenship by operation of law in spite of them being able to prove, through reliable scientific methods, the biological nexus between themselves and their father (or even the mother) simply because their parents were not married. This defied the very notion of jus sanguinis (which required a ‘blood relation’) which was not otherwise determined by law. It followed, that the instances of discrimination, not being countenanced by any of the all-pervading provisions of art. 8, would therefore amount to unlawful discrimination. The effect of accepting the respondents’ interpretation would result in this court construing art. 14(1)(b) of the FC and s. 1(b) of Part II and s. 17 of Part III in a manner which unwittingly promotes unlawful discrimination by the FC itself. Tying this together with the earlier analysis upon adopting the purposive and historical cannons of construction, such a reading of the law, as proposed by the respondents, was untenable. On the other hand, a wholesome and harmonious readingof the provisions of the FC relating to citizenship would not give rise to the instances of unlawful discrimination alluded to above. (paras 189- 192) (6) Part III, which was intended to contain supplementary provisions including s. 17, could not therefore be read as qualifying or conditionalising the application of Part II. The phrase ‘subject to the provisions of Part III of this Constitution’ as appearing in s. 1 of Part II are themselves insufficient to lead to the conclusion that s. 17 of Part III was intended to operate as an overriding provision. Section 17 is an interpretation provision just as ss. 19, 19A and 19B of Part III are. Section 17 was intended only to apply to instances where a person is illegitimate and who has no knowledge of who his biological father is. For such a person, he is entitled to be conferred citizenship by operation of law by virtue of his mother, again to avoid the child from being stateless. It is only in such cases that any reference to such a person’s biological father is to be taken to mean references to that person’s mother. This again, is to facilitate citizenship to overcome any technical hurdle such a person would face simply by the fact that the identity of their father is unknown. Taking this approach, as ‘father’ in s. 1(b) means biological father, whether a person is illegitimate or not is anirrelevant fact in the determination of their entitlement to citizenship provided that the identity of their biological father is known. The first appellant had successfully proved that the second appellant was irrefutably his biological father. Given the construction accorded to s. 1(b) of Part II, the first appellant had met all the requirements for citizenship by operation of law. (paras 193-196) Per Nallini Pathmanathan FCJ (dissenting): (1) In the context of the present case, the citizenship provisions in the FC ought to be construed so as to accord to the people seeking relief, the full benefit of the provisions, rather than reading them down to deny persons or a section of them their basic entitlement to a right to life. As the FC is the supreme law, it is incorrect to apply pedantic and technical rules and interpretations, which may be necessary in statutory interpretation, when construing the paramount law. This is because the FC sets out the framework for Government and its objects and the principles of Government ought not to be abrogated by the use of meagre and inadequate technical rules or grammar. The function of a judge is not to adopt a grammarian approach in the construction of statutes, far less the FC. (para 224) (2) Section 17 Part III falls under art. 31 which provides that until Parliament provides otherwise, the provisions in Part II of the Second Schedule will have effect for the purposes of Part III of the Constitution. It is supplementary in nature and not a governing section. It is also clear that Part III of the Second Schedule is interpretive in nature, as evidenced by the opening words. By its very nature, it explains how specific variations from the general rule are to be dealt with. Therefore, such interpretive provisions which detail the legal construction to be adopted in specific instances cannot be utilised to override, derogate from or abrogate from the general rule which is set out in s. 1(b) of Part II. Far less to nullify the express provisions of the FC which provide for the conferment of citizenship by operation of law as a consequence of descent or a blood tie from father to child. (paras 248 & 249) (3) It was evident from a perusal of s. 17 of Part III that it provides for the mother’s status to substitute that of the father in s. 1(b) of Part II. That should only arise where there is no Malaysian father at all. It does not follow that the citizenship of a legitimate biological father of the child can be ignored in its entirety, simply because the father and mother are not married. The doctrine of jus sanguinis or transmission by descent underlies the basis of art. 14(1)(b) FC vide s. 1(b) of Part II. Citizenship by operation of law requires a blood relationship between the father and the child. In a case where such a blood relationship does subsist, it could not be denied simply because the parents were not at the time of thebirth, married. (paras 246 & 247) (4) The conferment of citizenship in the instant appeal was effective by operation of law as the father is a Malaysian citizen. The words ‘Subject to’ in s. 1 of Part II, comprise a cross-reference to Part III, if and where relevant. A perusal of the provisions on the conferment of citizenship in their entirety discloses that the drafters of the FC did not envisage setting out a single long and confusing article relating to the principle of jus sanguinis and its exceptions, within the body of the citizenship provisions, but chose to utilise Schedules to cater for exceptions and deviations from the general rule. The words ‘Subject to’ in s. 1 of Part II do not have the effect of imposing a condition whereby the child’s right to citizenship is affected by his illegitimacy at the point of birth. A subsidiary section or a section providing for exceptions to the general rule cannot override the central thrust of a right to citizenship under s. 1(b) of Part II. An interpretive section providing for variants and exceptions to the primary rule cannot have that effect. (para 255) (5) As the words ‘Subject to’ in s. 1(b) of Part II are to be understood as a cross-referencing provision and not a condition imposing provision, a literal construction which gives effect to the words of the citizenship provisions in their entirety, does not give rise to a conclusion that the child is prohibited from obtaining citizenship by operation of law under art. 14(1)(b). Such a construction is in accord with and supports the fundamental doctrine of the transmission of citizenship by descent or blood which is the nub of the constitutional provision. The construction preferred by the respondents and the majority, prohibits or takes away this entitlement. There are, however, no clear express provisions allowing for such an abrogation. Therefore, even a literal reading of the words ‘Subject to’ in s. 1 of Part II do not have the effect of making s. conditional upon satisfaction of s. 17 of Part III. The literal reading, (which is not completely separate from, nor could be excised from the purposive meaning) allows for the general rule of a right to citizenship, through the citizenship of the father. And s. 17 of Part III provides for the exception or variation, namely where the child is illegitimate with only a mother to inherit citizenship from. It also could not mean that s. 17 of Part III prescribes that where there is a Malaysian father, the child is to take on the foreign mother’s citizenship by reason of illegitimacy because Parliament could not seek to enact or impose on another sovereign nation the conferment of its citizenship to the child. (para 255) (6) The imposition of legitimacy as a condition to the conferment of citizenship amounts to a narrow and restrictive construction of these constitutional provisions. The subject matter of construction in this appeal is not a contract but the FC. Such a narrow reading is contrary to the fundamental principles of constitutional construction. It also gives rise to a conflict within the FC resulting in a seeming contravention ofart. 8 of the FC, if effect is given to such a narrow construction. It is trite that any construction which has the effect of rendering nugatory or taking away from the fundamental constitutional principles ought to be rejected outright. The full benefit of the provisions of the FC ought to be available to citizens, such as the child’s father, and not whittled away so as to deprive citizens of their full entitlement to citizenship by operation of law. (para 255) (7) The interpretive provisions of s. 17 simply do not come into play because the illegitimacy provisions are inapplicable here as: (i) the Malaysian father was at all times legally acknowledged and paternity was not in doubt; (ii) the child was legitimised when the parents married a few months later; (iii) s. 17 applies to a situation where the father is unknown and/or unacknowledged; (iv) s. 17 could not be read asimposing a legitimacy requirement, failing which, the child of a Malaysian father married to a foreigner is not entitled to citizenship by operation of law; and (v) Parliament never sought to suggest that the foreign mother’s citizenship should be substituted for the Malaysian father when the child was illegitimate at the point of birth. Parliament would not presume to legislate for the Philippines. (para 271) (8) The construction afforded in the majority judgment allowed for illegitimate children of Malaysian mothers to be afforded citizenship by operation of law, while illegitimate children of Malaysian fathers married to foreign mothers are not entitled to such citizenship. This was clearly gender discrimination which was contrary to art. 8(1) of the FC. Neither was such discrimination justified as it did not comprise a reasonable classification having a rational nexus to the object of the citizenship provisions. Such a state of conflict between art. 8 and art. 14(1)(b) of the FC arose solely by reason of erroneously invoking and according s. 17 of Part III unnecessary and incorrect significance, in an effort to impose a requirement of legitimacy for the acquisition of citizenship which was never the intent nor purpose of the citizenship provisions in the FC from its onset in 1957 to date. Articles 8(2) and 8(5) of the FC provide no rescue, as there is no express authorisation allowing for discrimination in relation to the acquisition of citizenship by operation of law for children of fathers who are Malaysian citizens married to foreigners, as compared to illegitimate children of Malaysian mothers who are entitled to citizenship by operation of law at birth. The child was entitled to Malaysian citizenship by operation of law under art. 14(1)(b) read with s. 1(b) of Part II of the Second Schedule, as of the date of his birth. Section 17 of Part III of the Second Schedule had no application here. (paras 274-277) (9) It was an unsustainable construction to utilise illegitimacy to abrogate from the acquisition of a right of citizenship by operation of law, as expressly provided under art. 14(1)(b) read together with s. 1(b) of Part II of the Second Schedule by imposing an interpretive provision, namely s. 17, which does not come into play in the present factual matrix. The effect of doing so is to remove entrenched rights guaranteed by the FC, without any basis or express authorisation to do so. TheJudiciary cannot legislate to take away rights that are vested and come into being by operation of law. Any such attempt would be to exceed the authority and jurisdiction of the court and more importantly its role in the tripartite separation of powers. It amounts to a usurpation of Parliament’s role and brings to the fore the real spectre of judicial supremacy. (paras 279 & 280) Per Mary Lim FCJ (dissenting): (1) The first appellant had irrefutably satisfied the terms prescribed in art. 14(1)(b) read with s. 1(b) of Part II of the Second Schedule. The second appellant was the biological father of the first appellant. He was himself a citizen of this country as he was born in Malaysia. The fact that the first appellant’s father was not married to his mother at the time of his birth in the Philippines did not diminish his right to acquire citizenship by operation of law under art. 14(1)(b). The second appellant remained the father of the first appellant, and the legal relationship between the father and the mother of the first appellant did not alter the status of the first appellant. (paras 283 & 284) (2) The first appellant’s relationship with this country was amply proved and he must be accorded citizenship by the operation of art. 14(1)(b). The discrimination that arose from the respondents’ reliance on s. 17 of Part III, whether it be on grounds of legitimacy or illegitimacy or between father and mother, are not at all ‘expressly authorised by this constitution’ as allowed under art. 8(2) and as clearly illustrated in art. 8(5) of the FC. Such discrimination was caused by the effect in reading s. 17 of Part III in a manner which was countenanced in law. (para 284) (3) The reading, interpretation and application of the FC in the manner as conducted by the Chief Justice rendered art. 14 harmonious with the other provisions of the FC, in particular arts. 5 and 8; that a child of a citizen enjoys no lesser rights and liberties; and more fundamentally, is equally protected by the law, just as his father or mother is. This effectively gives meaning to the oft-quoted reference to our FC as a ‘living piece of legislation’ – and serves to provide an inclusive yet expansive approach in the construction of our beloved FC. Any discrimination even if authorised under the FC and unless expressly andy and clearly authorised must be strictly and narrowly construed, and must never be unwittingly condoned or encouraged. (para 284) (b) Lim Jen Hsian & Anor v. Ketua Pengarah Jabatan Pendaftaran Negara & Ors [2018] 6 MLJ 548 (CoA)/[2017] 8 CLJ 412 (CoA). (c) Than Siew Beng & Anor v. Ketua Pengarah Jabatan Pendaftaran Negara & Ors [2017] 5 MLJ 662 (CoA)/[2017] 8 CLJ 16 (CoA). (d) Dhinesh a/l Tanaphll v. Lembaga Pencegahan Jenayah & Ors [2022] 3 MLJ 356. (e) Nivesh Nair a/l Mohan v. Dato’ Abdul Razak bin Musa & 2 Lagi [Criminal Appeal No. 05(HC)-7-01/2020(W)] (unreported decision delivered on 25-4-2022). [49] The Apex Courts had decided cases on citizenship by operation of law or as the learned Senior Fedeal Counsel stated as “automatic citizenship” under Article 14(1)(b) read together with s. 1(a) and/or s. 1(e) of Part II of the Second Schedule of the Federal Constitution. Some of the cases are, namely – (a) CCH & Anor v. Pendaftar Besar Bagi Kelahiran Dan Kematian, Malaysia [2022] 1 CLJ 1, the Federal Court’s decision. (b) CCH & Anor v. Pendaftar Besar Bagi Kelahiran Dan Kematian, Malaysia [2021] 10 CLJ 352, the Court of Appeal’s decision. (c) CTEB & Anor v. Ketua Pengarah Pendaftaran Negara, Malaysia & Ors [2020] 4 CLJ 597, the Court of Appeal’s decision. (d) Mahisha Sulaiha Abdul Majeed V. Ketua Pengarah Pendaftaran & Ors And Another Appeal [2022] 8 CLJ 697, the Court of Appeal’s decision. (e) Peguam Negara Malaysia & Anor V. Go Fu Seng & Other Appeals [2022] 9 CLJ 336, the Court of Appeal’s decision. [50] In Peguam Negara Malaysia & Anor V. Go Fu Seng & Other Appeals (supra), the Court of Appeal in referring to the case of Madhuvita (supra) [as referred by the learned counsel for the Plaintiff] held – Held (allowing appeals; setting aside decision of High Court) Per S Nantha Balan JCA delivering the judgment of the court: (1) The High Court relied on Madhuvita in ruling in favour of the respondents. At the material time, the decision of the Federal Court in CTEB & Anor v. Ketua Pengarah Pendaftaran Negara, Malaysia & Ors (‘CTEB’) had not been delivered. When the present matter came before this court, Madhuvita was no longer good law and the legal position in relation to an illegitimate child’s entitlement to Malaysian citizenship consequent upon the subsequent registration of the marriage between the Malaysian father and non-citizen mother was as stated by the majority decision of the Federal Court in CTEB. (paras 7 & 39) (2) In CTEB, the Federal Court, by majority, clearly and unequivocally rejected the proposition established by the Court of Appeal in Madhuvita in regard to the role of the order made under the Legitimacy Act 1961 (‘Act’) or the subsequent legitimation of marriage of the parents for purposes of determining the question whether a child has the requisite qualification to attain citizenship by operation of law. Based on the decision in CTEB, it is the legitimate of illegitimate status of the child ‘at the time of birth’ that matters. Therefore, the subsequent marriage of the illegitimate child’s parents or the order of legitimacy under the Act were irrelevant. In such circumstances, the illegitimate child will follow the mother’s citizenship. (paras 8, 39 & 41) (3) Since the Federal Court rejected and overruled Madhuvita and since Madhuvita was no more a good law, it was clear that the present appeals had to be allowed as this court was bound by stare decisis ie the majority in CTEB. The majority ruling in CTEB applied to the facts pattern present in these appeals. (paras 44 & 47) [51] In the decisions by the Federal Cour and the Court of Appeal, the principles of law on the citizenship by operation of law showed that the cases of Madhuvita and the case of Lee Jen Hsian are not the sole authorities. [52] As far as this Court is concern, in analysing the affidavits exhibited by both parties, the fact that identity fraud committed by the Plaintiff’s birth/biological mother name Jenny in procuring the marriage certificate is proved by the First Defendant. It is very strange that the Plaintiff’s birth/biological father had no knowledge about who is his wife, Jenny or SEE HOOI. The real SEE HOOI had came forward and disclosed her identity and this showed that Jenny had impersonated and misused the identity of SEE HOOI. [53] In the divorce proceedings and the decree nisi absolute obtained from the Shah Alam High Court for the Plaintiff’s parents, the words “See Hooi (No. K/P.: 791225-02-5158) a.k.a Jenny (Indonesia Passport No.: MO 61771)” is a clear manifestation of identity fraud. No assistance or affidavit filed by the petitioner’s solicitor that is the Plaintiff’s birth/biological father. [54] The citizenship status of the Plaintiff is determined at the time of his birth. The amendment made in the Plaintiff’s registration of birth form showed that his mother is Non-Citizen and the marital status is Not Married. [55] In the Plaintiff’s own affidavit, he said that “tindakan kerajaan telah menimbulkan jangkaan yang sah (legitimate expectation) agar hak saya diberi kerakyatan Malaysia ditunaikan.”. However, as confirmed by the Plaintiff’s solicitor and the Senior Federal Counsel, the Plaintiff’s application for a citizenship under Article 15A of the Federal Constitution that provides ‘special power’ to the Federal Government to register under ‘special circumstances’ a non-citizen child who is under the age of 21 as a citizen, is still pending decision of the Federal Government. [56] Therefore as stated in the Plaintiff’s own affidavit that “Berdasarkan perkara di atas, saya telah dinasihati oleh peguam saya dan sesungguhnya percaya bahawa keputusan dan/atau tindakan kerajaan dalam menolak dan/atau menangguhkan untuk memberikan saya Kad Pengenalan Malaysia adalah dibuat ultra vires dan dicemari dengan ketidakrasional (irrationality), menyalahi undang-undang (illegality) dan ketidakwajaran prosedur (procedural impropriety).” showed that the Plaintiff’s prediction that his father’s application for his citizenship by operation of law was rejected/refused. Hence, the Plaintiff’s filed this suit against the Defendants. [57] In the written submission by the learned counsel for the Defendants [refer to paragraph 29(iv)], this Court agrees that − “Article 30, read together with section 2 of Part III Second Schedule of the FC established beyond doubt that in matter of citizenship under Part III of the FC the jurisdiction to adjudge such matter is reposed singularly within the exclusive domain of the Federal Government and as such the subject matter in the present OS actually falls beyond the jurisdictional reach of the Court.”. [58] As in my judgement delivered on 2-11-2022, I have decided that – “Peguam Kanan Persekutuan (SFC) terpelajar berhujah bahawa Mahkamah ini tiada bidang kuasa untuk memutuskan isu kewarganegaraan. SFC menegaskan bahawa berdasarkan pengasingan kuasa (separation of powers) dan kedaulatan undang-undang (rule of law), kuasa ini terletak kepada Kerajaan Persekutuan. Seterusnya, SFC menyatakan bahawa penjalanan kuasa budi bicara di bawah Perkara 18 dan/atau Perkara 19 Perlembagaan Persekutuan “is not reviewable in a court of law, as provided by section 2 of Part III Second Schedule of the Federal Constitution”. Mahkamah ini mendapati bahawa adalah tidak benar pengataan SFC terpelajar bahawa Plaintif tidak membuat permohonan kewarganegaraan kepada Defendan-Defendan. Plaintif ada membuat permohonan kewarganegaraan kepada Defendan-Defendan namun tiada keputusan Kerajaan Persekutuan mengenai permohonan Plaintif ini. Atas alasan “ketiadaan keputusan Kerajaan Persekutuan” maka Plaintif memfailkan Saman Pemula ini. SFC terpelajar juga tidak menjawab atau memberikan maklum balas mengenai penggantungan Plaintif kepada kes MTKL OS No.: WA-24 NCvC-1858-09/2019 yang mana deklarasi dan relief yang dipohon adalah serupa dengan permohonan Plaintif ini. Sebagaimana yang dinyatakan dalam perenggan [17] penghakiman ini, selain daripada Mahkamah ini tidak terikat dengan keputusan MTKL OS No.: WA-24 NCvC-1858-09/2019, fakta permohonan bagi kedua-dua kes adalah berbeza. Mahkamah memutuskan bahawa permohonan kewarganegaraan Plaintif perlulah diputuskan sepenuhnya oleh Kerajaan Persekutuan dan bukannya terus memfailkan permohonan di Mahkamah. Selepas Kerajaan Persekutuan membuat keputusannya untuk menolak permohonan kewarganegaraan Plaintif, baharulah tindakan undang-undang boleh diambil terhadap Defendan-Defendan.”. [59] During the hearing and verbal submissions by the parties, the learned counsel for the Plaintiff’s cried due to his full sympathize with the Plaintiff in obtaining the citizenship of Malaysia. The learned counsel for the Plaintiff also informed this Court that the learned Senior Federal Counsel also sympathize with the Plaintiff. [60] Be that as it may, as the Federal Government has not rejected or declined or refused the Plaintiff’s application to become a citizen vide automatic citizenship, therefore the statement by the Plaintiff that the Federal Government had acted “ultra vires dan dicemari dengan ketidakrasional (irrationality), menyalahi undang-undang (illegality) dan ketidakwajaran prosedur (procedural impropriety).”, is inaccurate and improper. Conclusion [61] In view of the foregoing, it is my judgment that having evaluated the evidence, this Court dismissed the Originating Summon (Enclosure 1) with no order to costs. Dated: 28 December 2022. RoziBainon ( ROZI BINTI BAINON ) Judicial Commissioner High Court NCvC12 Shah Alam Counsels: For the Plaintiff/Applicant: Ravinder Singh Sodhi A/L Manmohan Singh Sodhi Messrs Sodhi Chambers, Petaling Jaya For the Defendant/Respondent: Liew Horng Bin Senior Federal Counsel Jabatan Peguam Negara, Putrajaya