Pendaftar Besar Kelahiran dan Kematian, Malaysia v Pang Wee See & Anor (applying on their behalf and as litigation representatives for Pang Cheng Chuen, a child) [2017] 3 MLJ 308

Pendaftar Besar Kelahiran dan Kematian, Malaysia v Pang Wee See & Anor (applying on their behalf and as litigation representatives for Pang Cheng Chuen, a child) [2017] 3 MLJ 308

Court of Appeal (Putrajaya)

The Status of Citizenship of an Adopted Child

Facts

1.    In March 2001, Pang Wee See and Yee Oii Pah (‘the Applicants’) were informed by a relative that there was a newborn baby (‘the child’) at Taj Hospital, Jalan Ipoh, Kuala Lumpur for adoption. The Applicants decided to adopt the child as they did not have any children of their own.

2.    On 23 March 2001, the Applicants registered the birth of the child at National Registration Department (‘NRD’) with the Applicants’ names as the biological parents of the child.

3.    On 29 August 2013, the Second Applicant (Yee Oii Pah) together with the child went to NRD to apply for a MyKad for the child. The Second Applicant was interviewed by Encik Mohd Afizul bin Yajid, an officer from the NRD, in respect of the accuracy of the Applicants’ names on the child’s first birth certificate.

4.    The Second Applicant disclosed to Encik Mohd Afizul that the child was not formally adopted. Encik Mohd Afizul explained the necessary steps to be taken for the child to be formally adopted, including amending certain particulars of the first birth certificate.

5.    On 23 January 2014, the NRD reissued the child’s birth certificate which recorded the information such as the child’s biological parents as ‘information not available’; and the child is registered as having been born on 8 March 2011 in Taj Hospital Jalan Ipoh, Kuala Lumpur.

6.    The Applicants then made an application to the Kuala Lumpur High Court vide an originating summons dated 25 February 2014 to adopt the child which was later duly granted by the High Court on 19 September 2014.

7.    In the order, the High Court had confirmed that the child was born in Malaysia on 8 March 2001 at Taj Hospital, Jalan Ipoh, Kuala Lumpur.

8.    Based on the court order, the Applicants applied to the NRD for a new birth certificate pursuant to Section 25 of the Adoption Act 1952 (Act 257).

9.    On 13 February 2015, the NRD issued a new birth certificate for the child. However, the current birth certificate registered the child not as a citizen of Malaysia.

10.  Upon enquiry by the Applicants on the issue of citizenship of the child, NRD office informed the Applicants that the NRD would not register the child as a citizen of Malaysia based on the adoption order because the NRD had no data on the biological parents of the child. The child was hence rendered stateless.

11.  Subsequently, on 8 April 2015, the Applicants filed an application for leave for judicial review (‘JR’) to quash the decision of the Respondent on the citizenship of the child.

12.  They had also prayed for an order of mandamus to compel the Respondent to register the child as a citizen of Malaysia. The leave was granted on 9 July 2015.

Issue

1.    Whether the learned High Court judge had erred in law and facts when the High Court made a finding that the Act 257 is relevant and is taken into consideration in determining the citizenship status of the said child.

Ratios

1.    Whether the learned High Court judge had erred in law and facts when the High Court made a finding that Act 257 is relevant and taken into consideration in determining the citizenship status of the said child.

(a)   According to the Court, the word ‘parent’ as appears in Article 14(1)(b) and read with Section 1(a), Part II, Second Schedule of the Federal Constitution was intended to include an adoptive parent in the Act 257, as opposed to a biological parent, such intention would have been expressly provided for in the provisions on interpretations in the Federal Constitution itself.

(b)   It was submitted by the learned counsel for the Respondents that Clause (5) to Section 25A of Act 257 makes reference to the fact that it was good for all purposes and that as such, it must necessarily follow that it was therefore good for citizenship purposes as well.

(c)   It was also submitted that there was no express exclusion of the operation of the Act 257 pertaining to citizenship matters.

(d)   The Singapore Adoption of Children Act was cited wherein a reference to the effect that ‘an adoption order shall not by itself affect the citizenship of the adopted child’ as stipulated under Section 7(9) of the said Act.

(e)   As such, it was submitted that a similar provision must exist in Act 257 in order to make it as having no application to citizenship.

(f)     However, the Court found that there is no express provision to the effect that Section 25A of Act 257 is meant to affect citizenship matters.

(g)   The learned SFC had then submitted before the Court that the issue on the effect of Act 257 on citizenship by operation of law had been decided by a previous panel of the Court of Appeal in the case of 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] 7 MLJ 717 (‘the CKN case’).

(h)   The facts in that CKN case were almost similar to the present case and the bone of contention in that case was premised along the same line in that it was submitted by the counsel for CKN that the certificate of birth issued under Act 257 ought to be taken into account in determining the citizenship of the adopted child Chin Jia Nee (‘CJN’).

(i)     In that case, the learned Judicial Commissioner (JC) had dismissed the application for JR by CKN who attempted to quash the decision of the Pendaftar Besar Kelahiran dan Kematian, Malaysia (‘PBKK’) who decided that the citizenship of CJN in the birth certificate as ‘a non-citizen’, since her biological parent’s citizenship could not be determined, although CJN was born in Malaysia.

(j)     The aggrieved applicant had then appealed to the Court of Appeal where the same argument pertaining to the effect of the adoption order issued under Section 3(1) of the Act 257 was ventilated before the learned appeal justices in due course.

(k)    Having considered the arguments, the learned appeal justices dismissed the said appeal and affirmed the decision of the learned JC.

(l)     In the instant appeal, the learned counsel strenuously argued, in defending the learned High Court judge’s decision which was in his client’s favour, and sought to convince the Court that what was required under Article 14(1)(b) of the Federal Constitution had been fulfilled by the provisions as contained under Section 25A of Act 257, in particular sub-ss (5) and (6).

(m) Article 14(1)(b) of the Federal Constitution provides that-

“Subject to the provisions of Part III of this Constitution, the following persons born on or after Merdeka 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 birth either a citizen or permanently resident in the Federation.”

(n)   In determining citizenship of a person, two concepts are commonly applied, namely the concept of jus soli and the concept of jus sanguinis. Jus soli which means ‘right of the soil’, and commonly referred to as birth right citizenship, is the right of anyone born in the territory of a state to nationality or citizenship.

(o)   The determining factor being the place or territory where a person was born.  In the case of jus sanguinis, which in Latin means ‘right of blood’, is a principle of nationality law by which citizenship is not determined by place of birth but by having one or both parents who are citizens of the state.

(p)   Viewed from the context of these two concepts, the Court was of the considered opinion that Article 14(1)(b) read with Section 1(a), Part II, Second Schedule of the Federal Constitution is a provision which is anchored on the elements of both the concepts of jus sanguinis and of jus soli, whereby citizenship of a person is traceable to the place of birth namely, Malaysia, as well as Malaysian citizenship of one of the person’s parents (the right of blood) at the time of the person’s birth, in order to be a Malaysian citizen by operation of law as provided under Article 14(1)(b) read with Section 1(a), Part II, Second Schedule of the Federal Constitution.

(q)   The key ingredients stipulated in Article 14(1)(b) read together with Section 1(a) of Part II of the Second Schedule of the Federal Constitution, is that the person seeking to be a citizen of Malaysia via this specific constitutional provision must show proof that when he was born in this country, one of his parents must either be a citizen of Malaysia or was permanently resident in this country.

(r)     The phrase that is employed under that provision reads, ‘is at the time of the birth’. Pursuant to the Court, that phrase has categorically made a reference to the biological parent of the person, who must either be a Malaysian citizen or a person who is permanently resident in Malaysia.

(s)    By virtue of the above phrase, being born in Malaysia itself is not sufficient to prove his or her claim of citizenship by operation of law under such constitutional provision.

(t)    This is because, the person must be a person, whose either parent was a Malaysian citizen or a Malaysian permanent resident, when he was born in Malaysia. That provision does not contain any reference to an adoptive parent, albeit a Malaysian adoptive parent.

(u)   Therefore, referring to Section 9 of Act 257, the Court agreed that such provision of law does confer certain rights to and impose certain duties on the adoptive parents. However, those rights that have been conferred on the adopted child are specifically spelt out.

(v)   The rights conferred on the adoptive parents operate only upon the granting of the adoption order as it does not operate retrospectively so as to obliterate what had been done in relation to the child before his adoption.

(w)  The adoptive parents only come into the shoes of the biological parents upon the issuance of the adoption order, at which time, the rights of the biological parent’s rights, in futuro, over the child are, in law, extinguished.

(x)    In light of that, the adoptive parents can never fulfil the critical ingredient in the Federal Constitution that requires the person to prove that his ‘parents at least are at the time of the birth either a citizen or permanently resident in the Federation’, namely that of a biological parent.

(y)   In a nutshell, Act 257 is not applicable as a legal instrument to confer citizenship status to an adopted child in contrast with Article 14(1)(b) read with Section 1(a) Part II, Second Schedule of Federal Constitution.

Decision 1.    The Court of Appeal allowed the appeal and the whole decision of the learned High Court judge is set aside accordingly.

Key Take Away

1.    Section 9(1) of Act 257 provides that-

Upon an adoption order being made, all rights, duties, obligations and liabilities of the parent or parents, guardian or guardians of the adopted child, in relation to the future custody, maintenance and education of the adopted child, including all rights to appoint a guardian or to consent or give notice of dissent to marriage shall be extinguished, and all such rights, duties, obligations and liabilities shall vest in and be exercisable by and enforceable against the adopter as though the adopted child was a child born to the adopter in lawful wedlock.”

2.    Based on the above, an adoption order issued under Act 257 did not confer Malaysian citizenship on an adopted child even if one of his adoptive parents was a Malaysian citizen or a person permanently resident in Malaysia by operation of law within the contemplation and ambit of Article 14(1)(b), Part II, Second Schedule, of the Federal Constitution.

3.    To conclude, in order to be a Malaysian citizen by operation of law under Article 14(1)(b) read with Section 1(a) Part II, Second Schedule of the Federal Constitution, such person must be born in Malaysia and one of his biological parents must be either a Malaysian citizen or a person who was permanently resident in Malaysia at the time of the person’s birth.

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