KUALA LUMPUR, March 15 — The Court of Appeal in a majority decision today found that a woman who was born in a hospital in Kuala Lumpur was abandoned at birth, and declared that she is a Malaysian citizen.
The woman, who is due to turn 23 this year, has been waiting since the age of 12 for Malaysia to recognise her as a Malaysian citizen.
The woman, identified only as G for privacy purposes, had been in the care of her adoptive Malaysian parents since she was just a week old. It is unknown who G’s biological parents are, as they are untraceable.
Datuk Seri Kamaludin Md Said, who was chairing the three-judge panel, and fellow Court of Appeal judge Datuk S. Nantha Balan were in favour of declaring the woman as a Malaysian citizen, after finding that the facts of her case matched those of babies abandoned at birth.
In reading the broad grounds of the majority decision in favour of G, judge Datuk S. Nantha Balan said the Court of Appeal was bound by the Federal Court’s November 2021 decision in a similar case involving a child abandoned at birth at a hospital in Kuala Lumpur and who was later also adopted by Malaysian parents.
In allowing the appeal by the woman G in her citizenship bid, judge Nantha Balan read out the three orders granted in her favour.
The first order is a declaration that G is a citizen of Malaysia by operation of law, by virtue of her birth within the federation of Malaysia, pursuant to Article 14(1)(b), Section 1(a) of Part II of Second Schedule of the Federal Constitution, read together with Section 19B of Part III of the Second Schedule of the Federal Constitution”.
In other words, the first court order granted was to declare that G is entitled to Malaysian citizenship due to her birth in Malaysia and due to her fulfilling the conditions for citizenship under those three provisions in the Federal Constitution.
The second order granted was a certiorari order to quash the Registrar-General of Births and Deaths Malaysia’s decision in issuing and signing a birth certificate to G which had registered her to be a non-citizen instead of as a citizen of Malaysia.
The third and final court order granted by the Court of Appeal today was a mandamus order to direct the Registrar-General of Births and Deaths Malaysia to “reissue birth certificate” of G to “register her as a citizen of Malaysia”.
Why G was declared a Malaysian
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.
Section 1(a) provides for every person born within Malaysia ― who at the time of their birth had at least one parent who is either a Malaysian or a permanent resident in Malaysia ― to be a citizen by operation of law. Being a citizen by operation of law means a person would be entitled automatically under the law to be a Malaysian citizen.
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.
While acknowledging that the word “abandonment” or “abandoned child” or “found exposed” was not used to describe G’s situation in her adoptive parents’ affidavit or in her lawsuit, Nantha Balan however said this issue was raised by G’s lawyers in the High Court and that the High Court judge did not deal with the issue of abandoned child under Section 19B.
“We are of the view that the facts disclose that the third appellant (G) was in substance abandoned for purposes of Section 19B,” the judge said, adding that the fact that G’s adoptive parents had made payment to an unknown intermediary to pay for the biological mother’s hospital expenses does not detract or reduce the fact that G was abandoned at birth by the biological mother.
Nantha Balan said G’s situation as a baby born in the now-defunct Taj Hospital in Kuala Lumpur was similar to that of the child C who was born in Hospital Universiti Kebangsaan Malaysia in Kuala Lumpur in the Federal Court case and ruled to be abandoned at birth.
Nantha Balan highlighted paragraphs 53 to 55 of the Federal Court’s November 2021 decision as being relevant to G’s case, including where Chief Justice Tun Tengku Maimun Tuan Mat said Section 19B should be interpreted to cover newborn children left behind and discovered in a place without any trace of their biological parents, including those abandoned near dumpsites, baby hatches, public toilets, school toilets and places of worship.
Nantha Balan also highlighted the Federal Court’s decision where it had said the words “found exposed” in Section 19B should be given the widest possible interpretation to include children abandoned at their birthplace by their birth mother of unknown identity, in order to fulfill the intention of preventing statelessness.
“And as such given the term ‘exposed’ the widest possible meaning and interpretation, we find the third appellant (G) was abandoned and therefore qualified for citizenship. In the circumstances, we find merits in the appeal. The appeal is allowed, the High Court decision is set aside,” the judge said, and did not give any order on legal costs to be paid.
The Court of Appeal had delivered the decision after hearing G and her adoptive parents’ appeal against the High Court’s June 2, 2020 decision to reject her citizenship bid.
What the dissenting judge said
Court of Appeal judge Datuk Azizah Nawawi, who was also on the same panel, gave a minority decision when disagreeing that the woman was actually an abandoned child who would qualify to be entitled to Malaysian citizenship.
In reading her dissenting decision, Azizah gave her view that the Registrar-General of Births and Deaths was not in a position to explain the issue of abandonment as this was allegedly not mentioned in the affidavits by G’s adoptive parents at the High Court.
In her dissenting decision which was of the view that G’s appeal should be dismissed, Azizah was also of the opinion that G’s situation reflected that of an adopted child instead of an abandoned child.
“Added to that, plaintiff has made payment to the biological mother through an intermediary. The facts disclose adoption, not abandonment by the biological mother. The child was not left at the hospital, but given up for adoption with assistance of the intermediary and Taj Hospital,” the judge said.
The judge added that G’s adoptive parents had in her initial birth certificate claimed to be her birth parents and had “never claimed the child was abandoned” in the birth certificate, noting that the registrar-general only discovered that the adoptive parents were not G’s biological parents after investigating the matter.
As for the two alternative points that G was seeking to rely on if the Court of Appeal did not agree that she is a Malaysian citizen due to being abandoned at birth, Azizah also rejected these points regarding the definition of “parents” in the Federal Constitution and whether G was stateless.
G’s lawyer had sought to argue that she also fulfilled the Section 1(a) condition for citizenship as the word “parents” could also cover her adoptive Malaysian parents, as they had under the Adoption Act’s Section 9 assumed all parental rights, duties, obligations and liabilities for her upon legally adopting her, as if she was born to them.
Instead, Azizah briefly referred to a previous Court of Appeal decision involving the child “P” where it was held that “parents” do not include adoptive parents and refer only to biological parents.
Azizah also referred to two Court of Appeal decisions involving the child “L” and the child “T” on the issue of statelessness where it was held that both jus soli and jus sanguinis — citizenship based on a person’s birthplace and citizenship based on a person’s lineage and the parents’ citizenship — must be established in order to prove that a person is stateless or not a citizen of any country in the world.
Nantha Balan made it clear that the three judges were actually unanimous on both the issues of definition for “parents” and on the issue of statelessness, and that the majority and minority decision only differed on the point of whether G was abandoned at birth.
In the hearing today that was conducted via the video-conferencing platform Zoom, G and her adoptive Malaysian parents were represented by lawyer Ranee Sreedharan, while the Registrar-General of Births and Deaths Malaysia was represented by senior federal counsel Ahmad Hanir Hambaly and federal counsel Ng Wee Li.
The facts of the case
Based on court documents obtained by Malay Mail via a file search, the married Malaysian couple said they were told by a friend in 1999 that there was a newborn baby in Taj Hospital that could be adopted, and they then decided to adopt the child G.
The first birth certificate that was issued for the child G stated the adoptive parents to be the biological parents.
When the child turned 12 in 2011 and was applying for her MyKad, the National Registration Department (NRD) had interviewed the adoptive parents who said that G had not been formally adopted. The NRD had also then issued a new birth certificate that stated “information not obtained” on G’s biological parents.
The NRD’s director-general Datuk Ruslin Jusoh in a court document said the NRD had doubted G to be the adoptive parents’ biological child due to the difference in skin colour, and that the adoptive parents had then told the NRD that they did not know G’s origin and they had obtained G via an intermediary that dealt with the private hospital where the child was born and had paid some money to the intermediary.
G’s adoptive parents in a court document explained that they had made a small payment to the intermediary to be channelled for the biological mother’s medical costs as they did not know who the biological parents were. In court today, the judges were also shown notes taken down during the NRD’s 2011 interview of the adoptive parents which showed they did not know where the intermediary was.
After having been told by the NRD on the formal adoption process, the adoptive parents initiated the process and subsequently in 2014 obtained an adoption order from the Teluk Intan Sessions Court. Following the official adoption, the NRD in the same year issued a new birth certificate that stated G’s status to be “non-citizen”.
The adoptive parents said they had tried to find information about G’s biological parents but were unsuccessful in doing so, and noted that the Taj Hospital where the child was born had closed down and was no longer in existence.
Saying that G had lived in Malaysia her whole life and providing proof of her having completed schooling for both primary and secondary school up to the SPM level in Kuala Lumpur and had also obtained a diploma, the adoptive parents also said she had never acquired the citizenship of any other country.
The adoptive parents said G as a non-citizen could not open a bank account, obtain a driving licence, could not travel out of the country or obtain a degree, further listing other difficulties faced by non-citizens that are stateless including not being to apply for jobs, not being able to purchase insurance policies or property, not being able to register their marriages and not being able to be treated at public hospitals.
The adoptive parents had on January 9, 2015 applied to the NRD for G to be a Malaysian citizen under Article 15A of the Federal Constitution, but this was rejected three years later on March 30, 2018 without any reason given.
The adoptive parents again applied on May 28, 2018 under Article 15A for G’s citizenship, but there has yet to be any reply as it was still under the home minister’s consideration. The adoptive parents said they were always told that the application was still being processed each time when they enquired about its status.
Article 15A provides that the federal government may register anyone under the age of 21 as a Malaysian citizen, “in such special circumstances as it thinks fit”.
This means that the Article 15A route has an age limit and time was running out for G, with the first application for G made in the year when she was aged 16 and rejected in the year when she was aged 19. The second attempt was made in the year when she would turn 19.
On September 30, 2019, the adoptive parents and G filed a lawsuit via an originating summons against the Registrar-General of Births and Deaths Malaysia, seeking four court orders including for G to be declared and registered as a Malaysian citizen with a new birth certificate to reflect Malaysian citizenship status.
After the High Court on June 2, 2020 ruled against G and her adoptive parents, they then filed an appeal on June 22, 2020 to the Court of Appeal. This was the appeal that was heard today.
Earlier during the hearing, G’s lawyer Ranee argued on several legal points while also highlighting the client’s plight of having been denied recognition as a Malaysian citizen for years.
“She has been waiting since the age of 12, she has been waiting for 10 years for her citizenship to be approved so she can have some resemblance of life,” Ranee said, while listing a number of things that G currently cannot do due to her non-citizenship status.
Ranee argued that making G wait longer to be recognised as a Malaysian citizen would be detrimental to her and would also not be in line with the United Nations’ Convention on the Rights of the Child which states that the best interest of a child is of paramount importance.
“So this child is already in a very terrible state, she’s really suffering and to deny citizenship, it will be a really big injustice to her. And she’s turning to this honourable court for mercy and for justice, My Lord. This child didn’t do anything wrong, My Lord,” she had argued.
Among other things, Ahmad Hanir had argued that G’s case was not that of a child abandoned at birth as NRD was not informed of this when her birth was first registered, further arguing that this meant NRD could not be faulted for not being able to investigate at that point in time who the child’s biological parents are.
