Birth in Malaysia not enough for citizenship, rules appeals court

PUTRAJAYA: The Court of Appeal has ruled that a child whose biological parents are unknown cannot automatically acquire Malaysian citizenship merely by being born in Malaysia and without evidence of not possessing any foreign citizenship.

Delivering the unanimous decision, Justice Hayatul Akmal Abdul Aziz said a claimant seeking citizenship under the Federal Constitution must still satisfy the constitutional requirement of jus sanguinis, which relates to lineage.

“Where the biological parents and their citizenship status cannot be identified, that requirement remains unproven,” she said, in allowing the government’s appeal and setting aside a High Court ruling that had declared the child, identified as LWO, as a Malaysian citizen by operation of law.

The appeal was heard together with Justices Azhahari Kamal Ramli and Faizah Jamaludin.

LWO was born in Klang in 2009 and was initially registered as the child of a Malaysian couple, identified as LYK and FCH. Based on that registration, he was issued a birth certificate stating that he was a Malaysian citizen.

However, when LWO applied for a MyKad at age 12, investigations by the national registration department (JPN) found that the couple was not his biological parents and had provided false information in the birth registration.

The adoptive father later pleaded guilty to an offence relating to the false registration and was fined RM3,000.

Following the investigation, JPN amended the birth register and issued a new birth certificate listing the parents’ particulars as “Maklumat Tidak Diperolehi” (information not available) and LWO’s status as “Bukan Warganegara” (non-citizen).

Although the couple subsequently obtained an adoption order and a new birth certificate naming themselves as adoptive parents, LWO’s citizenship status remained unchanged.

The couple then sought declarations from the High Court that LWO was a Malaysian citizen under Article 14(1)(b) and Section 1(e), Part II of the Second Schedule of the Federal Constitution. The High Court granted the declarations.

The Court of Appeal, however, held that a claimant under Section 1(e) must satisfy both requirements of birth within the federation (jus soli) and in relation to lineage (jus sanguinis), namely proof that the person was not born a citizen of another country.

Hayatul said while LWO was born in Malaysia after Malaysia Day, the respondents had failed to prove the second requirement.

She said citizenship by lineage depended on the citizenship status of the biological parents, and without evidence identifying them, it was impossible to determine whether LWO had acquired citizenship of another country through them.

The burden of proving that LWO “was not born a citizen of any country”, she added, remained with the respondents.

The court also rejected the respondents’ reliance on newspaper advertisements seeking information about the biological parents, saying they had little evidential value as they were published 14 years after LWO’s birth and only after JPN uncovered the circumstances.

Hayatul further held that LWO’s long residence and education in Malaysia were legally irrelevant, as they stemmed from a birth certificate issued based on false information.