KUALA LUMPUR, Nov 19 — A teenager abandoned at birth in Kuala Lumpur and adopted by a Malaysian couple in Penang will now no longer be stateless, as the Federal Court today declared that he is entitled to be a Malaysian citizen.

In a unanimous decision, the five-judge panel in the country’s highest court said that the facts showed that the boy would fall under constitutional provisions that would prevent children abandoned at birth in Malaysia from becoming stateless.

Chief Justice Tun Tengku Maimun Tuan Mat who chaired the panel said the Federal Court had decided to set aside previous decisions at the High Court and Court of Appeal which had rejected citizenship bids for the boy, now aged 17.

The Federal Court granted three orders in favour of the child, identified only as C to protect his identity.

"We hereby grant the following orders — a declaration that C** is a citizen of Malaysia by operation of law by virtue of his birth in Malaysia, pursuant to Article 14(1)(b), Section 1(a) of Part II of the Second Schedule read together with Section 19B of Part III of the Second Schedule of the Federal Constitution,” she said in reading out a brief summary of the panel’s decision in an online hearing.

Article 14(1)(b) states that those who are born after Malaysia was formed and who fulfil any of the conditions in Part II of the Second Schedule are citizens by operation of law or entitled under the law to be Malaysians, while Section 1(a) is one of these conditions.

The two other orders were for a certiorari order to quash the Registrar-General of Births and Deaths Malaysia’s September 21, 2017 decision to issue a birth certificate which had registered the child as a non-citizen instead of a Malaysian citizen, and a mandamus order to direct the Registrar-General of Births and Deaths Malaysia to "reissue the birth certificate of the child to register the child as a citizen of Malaysia.”

The four other judges who decided on this case are Datuk Nallini Pathmanathan, Datuk Mary Lim Thiam Suan, Datuk Harmindar Singh Dhaliwal, and Datuk Rhodzariah Bujang.

Today was the Federal Court’s decision on an appeal by the boy’s adoptive Malaysian parents against the Court of Appeal’s July 2020 decision which was in the favour of the Registrar-General of Births and Deaths Malaysia.

Children walk past a mural in Kuala Lumpur July 21,2020. ― Picture by Ahmad Zamzahuri

Citizenship journey since 12 for a child abandoned at birth

In reading out her summary, Chief Justice Tengku Maimun noted that the facts of the case were that the adoptive Malaysian parents were in January 2004 told by a friend about a baby boy who was born and abandoned at Hospital Universiti Kebangsaan Malaysia, Cheras, Kuala Lumpur.

The adoptive parents had then decided to adopt the child and thought they had formally adopted the child, which was why they had represented themselves to be the child’s biological parents when filling up the forms submitted to the Registrar-General of Births and Deaths Malaysia, which then issued a birth certificate.

When the child turned 12, the National Registration Department (NRD) declined to issue a MyKad to the child and informed the adoptive parents that it had reason to believe they were not the boy’s biological parents, asking them to surrender the birth certificate to enable a new one to be issued.

The Penang couple then surrendered the first birth certificate, with the second birth certificate then issued in 2016 and stating the child’s parents’ information to be "not available” and the child’s citizenship status as "yet to be determined”.

In July 2017, the Malaysian couple obtained an adoption order from the High Court in Penang to legally adopt the boy, which recorded the child as having been born in Hospital Universiti Kebangsaan Malaysia, Cheras, Kuala Lumpur.

The couple provided the adoption order when applying for a new birth certificate, but the registrar-general in September 2017 issued the third birth certificate by recording the child as "bukan warganegara” or a non-citizen.

The adoptive Malaysian parents on December 18, 2017 filed for judicial review on behalf of the child at the High Court, with the High Court on July 3, 2019 dismissing the citizenship bid and with the Court of Appeal on July 1, 2020 then dismissing the parents’ appeal.

The chief justice noted that adoptive parents are saying that the child is now stateless as he is not a citizen of any country, while also noting that the boy’s biological parents’ identity and the biological parents’ citizenship status are completely unknown.

Merdeka babies sleep in their cribs in Hospital Kuala Lumpur August 31, 2018. — Picture by Razak Ghazali

Harsh realities for abandoned babies

The chief justice said the Federal Court panel was of the view that it need not consider or answer the five questions of law presented at the leave stage of this appeal, due to the peculiar facts and circumstances of this case.

Instead, the Federal Court zoomed straight to two provisions under the Federal Constitution’s Second Schedule, namely Section 1(a) of Part II of the Second Schedule and Section 19B of Part III of the Second Schedule.

Section 1(a) provides for every person born within Malaysia ― with at least one parent being either a citizen or permanently resident in Malaysia ― to be a citizen by operation of law. Being a citizen by operation of law means one would be entitled automatically under the law to be a Malaysian citizen without having to apply for citizenship.

Section 19B provides that "any new born child found exposed in any place” shall be presumed to have been born there of a mother "permanently resident there” until the contrary is shown, with the date of the child being found to be taken as the child’s date of birth.

The Federal Court said citizenship is tied to the right to life and personal liberty in the Federal Constitution’s Article 5(1), and that the court should give the widest meaning possible without changing the base meaning when interpreting words in the Constitution that protect or guarantee fundamental rights, while also interpreting interrelated provisions harmoniously.

Tengku Maimun said Section 19B’s purpose would be to cover or apply to new born children who were left and discovered in a place without any trace of their biological parents, and said this is necessary to avoid statelessness.

"We take judicial notice of the harsh realities of life, this includes new born children left abandoned near dumpsites, baby hatches, public or school toilets, places of worship and so on,” the judge said, adding that the literal meaning for the word "exposed” would indicate a newborn child found at any of these locations.

"As such, 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,” she said.

If the word "exposed” in Section 19B does not cover the plight of abandoned newborn children, the judge said this would defeat the overarching purpose of preventing statelessness or make such a purpose illusory.

The Federal Court then went on to say that since the child C was found abandoned at the Hospital Universiti Kebangsaan Malaysia where he was born, Section 19B would mean that this boy was presumed to be born to a mother permanently resident there.

And when read together with Section 1(a), the child C would have fulfilled the citizenship requirements in Section 1(a) by being born in Malaysia and with the mother presumed to be permanently resident in Malaysia when he was born.

"In the premises, it is our judgment that the child is quite simply entitled to citizenship by operation of law by virtue of section 1(a) of Part II read with section 19B of Part III,” the judge said.

Both the child’s lawyer and the Attorney General’s Chambers had during the Federal Court hearing in September agreed that Section 19B could be read together with Section 1(a).

The Federal Court noted today that the Attorney-General’s Chambers had however previously in the hearing disagreed that Section 19B could apply to C’s case and suggested that the adoptive parents had actively concealed facts and that the biological parents’ identity is known or can be discovered but was kept hidden.

But Tengku Maimun said that Section 19B’s phrase "until the contrary is shown” means that whoever claims that a child was not found exposed or abandoned by the mother would have the burden to show the mother’s identity or that the mother was not permanently residing at the place the child was found.

Saying that it would be "quite illogical” to expect C’s adoptive parents to prove a negative fact or to prove that they do not know the child’s biological parents, the Federal Court noted that there is no evidence to suggest that the adoptive parents were lying about the fact that the boy was abandoned at the hospital in Cheras, Kuala Lumpur.

The court also said the Attorney-General’s Chambers’ argument that the adoptive parents had concealed facts was just a mere supposition that is not supported by evidence

The Federal Court said the Registrar-General of Births and Deaths Malaysia would surely have had the means to verify from Hospital Universiti Kebangsaan Malaysia’s admission records about the identity of the child C’s biological mother ― if not the biological father as well ― since the child was born in the hospital.

The Federal Court concluded that the registrar-general had not discharged the legal burden of rebutting the presumption under Section 19B of the permanent residence of the child’s mother, when the Home Ministry which the registrar-general is part of would have all the government’s machinery available to conduct appropriate investigations to determine the truth.

The Federal Court also noted that the registrar-general did not directly address or respond to the adoptive parents’ statements on how the child C was found abandoned, and which meant that those statements would be accepted in court.

Chief Justice Tan Sri Tengku Maimun Tuan Mat explained that there was no need for the Federal Court to consider whether the child C was stateless in light of the wholesome reading of Section 1(a) together with Section 19B. — Picture by Yusof Mat Isa

What today’s decision means

In delivering the panel’s summary, Tengku Maimun explained that there was no need for the Federal Court to consider whether the child C was stateless in light of the wholesome reading of Section 1(a) together with Section 19B.

The chief justice also said it was also unnecessary to consider whether the adoptive Malaysian parents have the right to confer citizenship on the child C, as the Section 19B provision’s presumption operates to confer Malaysian citizenship on the boy even before he was adopted ― either the informal adoption in 2004 or the formal adoption through the adoption order in 2017.

The second key effect of today’s decision is that C’s adoptive parents’ appeal is allowed, with the previous rulings by the High Court and Court of Appeal in this case to be reversed and set aside totally and not to be relied upon as legal precedent for future cases.

As for the third key effect of the decision today, the Federal Court said the child C’s case is now a "precedent” for how the Home Ministry generally and specifically the NRD and Registrar-General of Births and Deaths should deal with all such future cases involving abandoned new born children.

The Federal Court said the burden would be on the registrar-general to undertake proper investigations to determine the status of a child’s biological parents or mother, when an application for registration of such new born children is submitted to them.

"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 section 19B of Part III to recognise that new born child’s citizenship by operation of law, except where there is evidence to the contrary as we had stated earlier,” Tengku Maimun said.

Given the circumstances in C’s case, the Federal Court said the registrar-general should have given effect to both Section 1(a) and Section 19B, instead of denying the child citizenship because the registrar-general was not able to gather any evidence on the child’s biological parents.

The Federal Court noted that the registrar-general had no right or discretion to do anything else, and "certainly much less” rendering the child as stateless.

The Federal Court pointed out that the "citizenship by operation of law” is a fundamental and constitutional right, and that it leaves absolutely no room for subjective notions on what is citizenship or any room for discretion.

In other words, the Federal Court was explaining the nature of citizenship by operation of law as being entitled to citizenship because of what the law says. This would be different from citizenship applications that would involve decisions that can be made by the government on whether to grant or recognise a person as a citizen.

The child C’s adoptive Malaysian parents were represented by lawyers Datuk Cyrus Das, Raymond Mah, Jasmine Wong and Eric Toh, while appearing today for the Registrar-General of Births and Deaths Malaysia are senior federal counsels Shamsul Bolhassan, Mazlifah Ayob and Liew Horng Bin.

Lawyers Larissa Ann Louis and Low Wei Loke today held a watching brief for the Bar Council, while lawyer Ranee Sreedharan held a watching brief for the Development of Human Resources for Rural Areas (DHRRA) Malaysia.

Why today’s decision is important

When asked about the impact of today’s decision for other citizenship cases in Malaysia, Mah told Malay Mail: "Today’s decision by the Federal Court will apply immediately to pending and future cases with similar facts. The Federal Court has given a very wide interpretation to what it means to be an abandoned child under Section 19B of Part III of the Second Schedule.

"The Federal Court has considered it sufficient that the biological parents of the child cannot be identified.

"The court has also explained that the words ‘until the contrary is shown’ in Section 19B places the burden and duty on the National Registration Department to investigate the birth. If the NRD cannot find any evidence as to who the biological parents are, the NRD should recognise the child’s citizenship under Section 1(a) of Part II of the Second Schedule read with Section 19B.”

**The child's name is only identified as C at the request of the child's lawyers.