PUTRAJAYA (Nov 19): The Federal Court here in a landmark decision on Friday (Nov 19) granted Malaysian citizenship to a 17 year-old boy born in Hospital Universiti Kebangsaan Malaysia (HUKM), Cheras, Kuala Lumpur in 2004 and adopted by Malaysian parents after taking into account the boy’s birth records which show that his biological mother is either a Malaysian or possibly a permanent resident of the country.
Chief Justice Tun Tengku Maimun Tuan Mat, when announcing the unanimous decision by the five-member bench of Malaysia’s apex or highest court, said the National Registration Department's allegation that the boy’s adoptive parents concealed his biological parents’ identities is a bare assertion not supported by evidence.
The boy has been named "C" by the court to protect his identity.
The Federal Court’s decision overturned earlier decisions by the High Court in Penang and the Court of Appeal here to reject the boy’s application for Malaysian citizenship.
Following the Federal Court’s decision to grant Malaysian citizenship to the boy, Tengku Maimun said it is now the duty of the National Registration Department and Ministry of Home Affairs to determine if the boy’s biological mother is a Malaysian or permanent resident of the country.
The National Registration Department is an entity under the purview of the Ministry of Home Affairs.
Following the Federal Court’s decision, Tengku Maimun ordered the National Registration Department to issue Malaysian citizenship to the boy besides a new birth certificate to denote that he is a citizen of the country.
Tengku Maimun ordered that his existing birth certificate denoting that he is a non-citizen of Malaysia be invalidated.
According to Tengku Maimun, the boy’s existing birth certificate was issued in 2017.
The Federal Court judges hearing the case included Datuk P Nallini, Datuk Mary Lim Thiam Suan, Datuk Harmindar Singh Dhaliwal and Datuk Rhodzariah Bujang.
Tengku Maimun said the the case had set a precedent of how the Ministry of Home Affairs and National Registration Department ought to deal with abandoned newborn babies' citizenship status by determining their biological parents’ citizenship status.
“When confronted with an application for registration of such newborn children, the burden is on the respondent (National Registration Department) to undertake a proper investigation to determine the status of such a child’s biological parents or mother,” she said.
If after the investigation, it is found that the newborn baby's abandonment is true, the respondent is obligated by the highest law of Malaysia "to recognise that newborn child’s citizenship by operation of law, except where there is evidence to the contrary as we stated earlier,” she added.
Tengku Maimun said citizenship by operation of law is a right — a fundamental and constitutional right.
"It leaves absolutely no room for the exercise of subjective notions or presuppositions of what citizenship is.
"The words citizenship by operation of law could not be any clearer, and there is no room whatsoever for discretion,” she added.
On the 17-year-old boy’s case, Tengku Maimun said it is an accepted fact that he was born in HUKM, and despite the National Registration Department's allegation that his adoptive parents concealed his biological parents' details, the Federal Court is of the view that the National Registration Department has to prove the contrary.
There is nothing in the evidence to suggest that his adoptive parents were lying about the fact of the boy’s abandonment by his biological parents, according to Tengku Maimun.
“Given that the child was born in the said hospital, surely the respondent has the means to verify from the hospital’s admission records the identity of the child’s biological mother if not the father.
"Therefore, as the record stands, the respondent has not been able to discharge the burden,” Tengku Maimun said.
According to court documents, the boy was born in HUKM in January 2004 but abandoned by his biological parents before adoption by his adoptive parents.
He was issued with a birth certificate on Feb 20, 2004.
When the boy turned 12 in 2016, his adoptive parents tried to get him a Malaysian identity card but the National Registration Department noticed discrepancies between the names of the boy and his sister.
The court documents, which indicated that his sister was also adopted, said the National Registration Department had asked the boy and his sister to surrender their first birth certificates in November 2016 to have second birth certificates issued to them.
In the boy's second birth certificate, his biological parents’ names were stated as “information not available”, while his citizenship was indicated as “yet to be determined”.
Dissatisfied with the National Registration Department’s decision, the adoptive parents filed an originating summons in the Penang High Court where an adoptive certificate was issued.
The boy subsequently applied for a new birth certificate, which was issued on Sept 21, 2017, but the third document stated that the boy is a non-citizen of Malaysia, according to the court documents.
Following the issuance of the boy’s third birth certificate, his adoptive family applied with the Penang High Court for a judicial review of the National Registration Department’s decision to not grant Malaysian ciizenship to the boy.
The Penang High Court, however, rejected the judicial review application before an appeal was made in the Court of Appeal here against the Penang High Court’s decision.
The Court of Appeal upheld the Penang High Court’s decision to reject the judicial review application before the boy’s case was finally brought to the Federal Court.