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Case Update: Landmark case on citizenship for abandoned new born children in Malaysia

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30 November 2021

CONSTITUTIONAL LAW
Citizenship – Abandoned at birth – Adopted parents – Stateless – National Registration Department – Federal Constitution, Article 14 and 31 – Adoption Act 1952

CCH & Anor v Pendaftar Besar bagi Kelahiran dan Kematian, Malaysia
Civil Appeal No: 01(f)-35-11/2020(W)| Federal Court
- see the grounds of judgment here

Facts The Appellants are the adoptive father and mother of their adopted child (‘Appellants’). The respondent is the Registrar-General of Births and Deaths of Malaysia (‘Respondent’), a department that operates under the purview of the Ministry of Home Affairs, Government of Malaysia. In 2004, the child in question (‘Child’) was born and abandoned in a Hospital at Cheras, KL. The appellants jointly decided to adopt the Child. At the time of registration, both appellants were of the impression that they had formally adopted the child, hence listing themselves as the child’s biological parents. In 2016, when the Child was applying for his MyKad, the Respondents declined to issue it citing inaccuracies in their names and had reason to believe that the Appellants were not the biological parents of the Child. Subsequently, the Appellants surrendered the 1st Birth Certificate and was issued with a new birth certificate where the Child’s parents’ information was listed as ‘not available’ and the Child’s citizenship status as ‘yet to be determined’. The Appellants obtained an Adoption Order from the High Court in Penang and reapplied for a new birth certificate from the Respondent which was eventually issued. However, the status of citizenship for the Child was now changed to non-citizen and was issued on a pinkish-red certificate indicating coding for non-citizen. The Appellant filed a judicial review at the High Court and subsequently an appeal at the Court of Appeal, both of which were rejected. Hence, this appeal.

Issue 1. Whether a child who (i) was born in Malaysia and (ii) did not acquire citizenship of any other country within one year from his date of birth, is a citizen of Malaysia by operation of law pursuant to Article 14(1)(b) and Part II Section 1(e) and Section 2(3) of the Second Schedule of the Federal Constitution?
2. Whether Part II Section 1(e) of the Second Schedule of the Federal Constitution requires a child to prove the identity of his/her biological parents and/or that they are not foreign citizens?
3. Whether the word “parents” in Part II Section 1(a) of the Second Schedule of the Federal Constitution should be given a restrictive interpretation to mean only the child’s biological parents?

Held In unanimously allowing the appeal, the Federal Court examined s. 1(a) of Part II and s. 19B of Part III of the Adoption Act 1952 in which the operative words in s. 19B states ‘any new born child found exposed in any place’. The learned panel held that the broadest possible interpretation of the word ‘found exposed’ is to accord it a meaning to include a child abandoned at the place of birth by the birth mother whose identity is unknown. The Respondent argued that the Appellants had actively concealed facts, that the identity of the biological parents is known or discoverable but kept hidden. To this the Federal Court held that in s. 19B it contained the phrase ‘until the contrary is shown’. Meaning, any person who claims that the child was not ‘found exposed’ or otherwise abandoned by the mother as the case may be, bears the burden of showing the identity of the mother and more importantly, that the mother is not permanently resident at the place of the finding. In the current case, the Respondent has not been able to discharge that burden. Therefore, since the child was found abandoned, it is presumed that he was born to a mother permanently resident there and that the child was entitled to citizenship by operation of law by virtue of the sections mentioned above. The Federal Court went on to state that this case is now precedent on how the Ministry of Home Affairs and the Respondent ought to deal with all such future cases within the context of abandoned new born children. When confronted with an application for registration of such new born children, the burden is on the Respondent to undertake proper investigations to determine the status of such child’s biological parents or mother. If, after investigation, it is found that the fact of abandonment is true, the Respondent is obligated by the highest law of the land in s. 19B of Part III to recognise that new born child’s citizenship by operation of law, except where there is evidence to the contrary.

ZUL RAFIQUE & Partners
{30 November 2021}

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