Citizenship For Adopted And Legitimised Children: To The Federal Court And Back Again [2020] 2 MLJ vi

• Published date: 13 January 2021
• Subject Matter: Immigration, General Immigration
• Law Firm: MahWengKwai & Associates
• Author: Mr Raymond Mah and Jasmine Wong

In an earlier article entitled "Citizenship for Adopted Children - A Malaysian Perspective [2013] 1 MLJ xiii", we described the story of a child who was given up for adoption by his biological parents and was subsequently adopted by Malaysian citizens. In the judicial review proceedings, the parents sought from the High Court declarations that the child is a Malaysian citizen pursuant to Section 1(a) and Section 1(e) of Part II of the Second Schedule of the Federal Constitution. Lau Bee Lan J (now JCA) in Lee Chin Pon & Anor v Registrar-General of Births and Deaths, Malaysia [2010] (unreported) declared the child a citizen by operation of law.

Since the decision of Lee Chin Pon, a number of similar cases have been brought to the Courts with mixed results and inconsistent outcomes. In this article, we describe five cases in which the children (referred to as P, C, L, T and M to respect their privacy) sought judicial recognition of their citizenship by operation of law under Article 14 of the Federal Constitution. These matters originated in the High Court and were eventually set for joint hearings at the Federal Court.

Detailed submissions were prepared and filed in the Federal Court. Counsel were ready with oral arguments. However, after repeated adjournments, the appeals were ultimately settled when the Ministry of Home Affairs granted citizenship by registration under Article 15A of the Federal Constitution to the children. In the absence of a decision by the Federal Court on the merits of the novel issues, the uncertainty and inconsistencies in the law remain.

This article will start with a summary of the facts, issues and proceedings in the five cases. The arguments raised by parties in the written submissions filed in the Federal Court will also be set out. This article concludes with a description of the journey at the Federal Court leading to the amicable settlement of these matters.

In the matter of P (A Child)

P was born in 2001 at Taj Hospital, Jalan Ipoh, Kuala Lumpur. P's biological parents were unknown. Mr and Mrs P had been fostering P since P was a baby. Mr and Mrs P formally adopted P under the provisions of the Adoption Act 1952 in September 2014. Following the Adoption Order, the National Registration Department ("NRD") issued a new post-adoption birth certificate to P, registering P as a non-citizen instead of a Malaysian citizen. As a result, P was rendered stateless and ineligible for a MyKad and Malaysian passport.

Mr and Mrs P, represented by MahWengKwai & Associates ("MWKA"), filed an application at the Kuala Lumpur High Court for judicial review against the NRD to challenge the decision in registering P as a non-citizen. Mr and Mrs P sought declarations that:

(i) P is a Malaysian citizen by virtue of P's legal adoption by Mr and Mrs P pursuant to Section 1(a) of Part II of the Second Schedule of the Federal Constitution ("Section 1(a) Second Schedule FC") read with Sections 9 and 25A of the Adoption Act 1952; and

(ii) P is a Malaysian citizen by virtue of P's birth within the Federation pursuant to Section 1(e) read with Section 2(3) of Part II of the Second Schedule of the Federal Constitution ("Section 1(e) read with Section 2(3) Second Schedule FC").

Sections 1(a), 1(e) and 2(3) Second Schedule FC are as follows:

PART II [Article 14(1)(b)]

Citizenship by operation of law of persons born on or after Malaysia Day

1. Subject to the provisions of part III of this Constitution, the following persons born on or after Malaysia Day are citizens by operation of law, that is to say:

(a) every person born within the Federation of whose parents one at least is at the time of the birth either a citizen or permanently resident in the Federation; and .

"(e) every person born within the Federation who is not born a citizen of any country otherwise than by virtue of this paragraph."

"2. (3) For the purposes of paragraph (e) of section 1 a person is to be treated as having at birth any citizenship which he acquires within one year afterwards by virtue of any provision corresponding to paragraph (c) of that section or otherwise."

In March 2016, both prayers were allowed by Mohd Yazid bin Mustafa J and P was declared a Malaysian citizen pursuant to both Sections 1(a) and 1(e) Second Schedule FC. Mohd Yazid bin Mustafa J allowed Mr and Mrs P's application for judicial review on the grounds that (i) Mr and Mrs P, both citizens, were P's parents; and (ii) P was born in Malaysia and did not obtain citizenship of any foreign country within one year from the date of his birth.

Dissatisfied with the High Court's decision, the NRD appealed to the Court of Appeal. At the Court of Appeal hearing on 3.1.2017 before Abang Iskandar bin Abang Hashim, Zaleha binti Yusof and Zamani bin A. Rahim JJCA, MWKA faced the challenge of having a panel with two judges who had previously decided against the child in Chin Kooi Nah (suing on behalf of himself and as litigation representative to Chin Jia Nee, child) v Pendaftar Besar Kelahiran dan Kematian, Malaysia (2016) (unreported) on similar issues. However, in the course of the hearing, the Court of Appeal (i) agreed to limit the NRD's appeal to Section 1(a) Second Schedule FC only as Section 1(e) Second Schedule FC was not challenged in NRD's Memorandum of Appeal; and (ii) was receptive to the submission that the earlier appeal in Chin Kooi Nah was incorrectly decided and should not be followed.

During the hearing, counsel for P, Mr Raymond Mah raised an objection when the Attorney-General's Chambers ("AGC"), who was representing the NRD, attempted to submit on Section 1(e) Second Schedule FC. Counsel objected on the basis that the NRD's Memorandum of Appeal failed to include Section 1(e) Second Schedule FC as one of its grounds. The Court of Appeal in its Grounds of Judgment [see Pendaftar Besar Kelahiran dan Kematian, Malaysia v Pang Wee See & Anor [2017] 3 MLJ 308] upheld the objection as follows:-

"[17] Premised on the above, we agreed with the Respondents that the Appellant was bound by its own pleadings. We therefore allowed the objection by learned counsel for the Respondents.

[18] As a consequence thereof, the Appellant was allowed to prosecute this appeal based on what was pleaded in the MOA, which essentially could be summarised as follows, namely:-

1. The Respondents failed to fulfil the requirements under Article 14, Part II, Section 1, Paragraph (a) of the Second Schedule of the Federal Constitution;
2. The identity and whereabouts of the biological parents of the Child ought to be taken into consideration; and
3. The Adoption Act 1952 is not relevant in determining the Child's citizenship."

Essentially, the Court of Appeal ruled that the NRD's appeal was limited to Section 1(a) Second Schedule FC. The NRD was prohibited from submitting further on Section 1(e) Second Schedule FC, and counsel for P did not have to respond on Section 1(e) Second Schedule FC. Given the ruling, counsel submitted that even if the NRD were to succeed on Section 1(a) Second Schedule FC, the High Court Order recognising the child's citizenship under Section 1(e) Second Schedule FC should not be disturbed.

Surprisingly however, the Court of Appeal allowed NRD's appeal against the whole of the High Court's order, thereby setting aside the child's right to citizenship under both Section 1(a) and (e) Second Schedule FC. It is clear from the Grounds of Judgment that the Court of Appeal did not consider the merits of the High Court's decision on Section 1(e) Second Schedule FC. In respect of Section 1(a) Second Schedule FC, the Court of Appeal held that the reference to the word "parents" in Section 1(a) Second Schedule FC refers only to P's biological parents. The Court of Appeal decided that the Adoption Act 1952 could not confer citizenship to an adopted child pursuant a legal adoption by Malaysian citizens. Mr and Mrs P accordingly did not fall within the meaning of "parents" in Section 1(a) Second Schedule FC.

Mr and Mrs P then applied for leave to appeal to the Federal Court against the Court of Appeal's decision and the panel (Hasan bin Lah, Zainun binti Ali and Abu Samah bin Nordin FCJJ) granted leave on 11.9.2017 on the following seven questions:-

1. Whether a child born in Malaysia who has been lawfully adopted by Malaysian parents would qualify for citizenship under Article 14(1)(b) and Part II Section 1 paragraph (a) and/or (e) of the Second Schedule of the Federal Constitution?
2. Whether "parents" in Article 14(1)(b) and Part II Section 1(a) of the Second Schedule of the Federal Constitution refers to a child's "lawful parents" as opposed to a child's biological parents?
3. Whether a birth certificate issued to a child under Section 25A of the Adoption Act 1952 is conclusive evidence of the identity of the child's parents for all purposes pursuant to Sections 25A(5) and (6) of the Adoption Act 1952, including the determination of the child's entitlement to citizenship by operation of law pursuant to Article 14(1)(b) and Part II Section 1 paragraph (a) of the Second Schedule of the Federal Constitution?
4. Whether a birth certificate which has been "surrendered" to the Registrar-General for cancellation pursuant to Section 25A(1)(b) of the Adoption Act 1952 and "replaced" by a new birth certificate issued pursuant to Section 25A(5) of the Adoption Act 1952, can still be referred to by the Registrar-General or the Courts for the purposes of determining a child's parents?
5. Whether a child who (i) was born in Malaysia and (ii) did not acquire citizenship of any other country within one year from his/her birth date, is a citizen of Malaysia by operation of law pursuant to Article 14(1)(b) and Part II Section 1 paragraph (e) and Section 2(3) of the Second Schedule of the Federal Constitution?
6. Whether the words "not born a citizen of any country" in Part II Section 1 paragraph (e) of the Second Schedule of the Federal Constitution require a child to prove the identity of his/her biological parents and...