Legal Update 11 of 2017

Is a child deemed stateless if the nationality of the parents cannot be determined?   

CASE: Pendaftar Besar Kelahiran dan Kematian, Malaysia v Pang Wee See & Anor -[2017] MLJU 390

  • Pang Wee See and Yee Oii Pah ("the Applicants") were informed that there was a newborn baby ("the Child") at Taj Hospital, Jalan Ipoh, Kuala Lumpur for adoption.
  • They decided to adopt the child as they did not have any children of their own.
  • They registered the birth of the child at National Registration Department ("NRD") with their names as the biological parents of the Child ("1st birth certificate"). 
  • They then went to NRD to apply for a MyKad for the Child and were interviewed by an officer from the NRD, in respect of the accuracy of their names on the Child's 1st birth certificate.
  • Yee Oii Pah disclosed that the Child was not formally adopted. The officer then explained that they needed to formally adopt the Child.
  • The NRD then reissued the Child's birth certificate ("2nd birth certificate") which recorded the following information:
    • The Child's biological parents were recorded as "information not available"
    • The Child is registered as having been born on 8 March 2011 in Taj Hospital Jalan Ipoh, Kuala Lumpur.
  • The couple then made an application to the Kuala Lumpur High Court to adopt the Child which was later duly granted by the High Court.
  • The High Court in the Order confirmed that the Child was born in Malaysia on 8 March 2001 at Taj Hospital, Jalan Ipoh, Kuala Lumpur. 
  • Based on the Court Order, Pang Wee See and Yee Oii Pah then applied to the NRD for a new birth certificate pursuant to section 25 of the Adoption Act 1952.
  • On 13 February 2015, the NRD issued a new birth certificate for the Child ("current birth certificate"). However, the current birth certificate registered the Child as not a citizen of Malaysia.
  • Upon inquiry by Pang Wee See and Yee Oii Pah on the issue of citizenship of the Child, the NRD informed them 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. Subsequently, on 8 April 2015, the couple filed an application in court to quash the decision of NRD on the citizenship matter of the Child.
  • They had also asked for an order to compel NRD to register the Child as a citizen of Malaysia.
  • The leave was granted on 9 July 2015. Pang Wee See and Yee Oii Pah then filed the Application for Judicial review which was allowed on 1st March 2016. Hence, the present appeal by the Couple. 

  DECISION:  Appeal Allowed

  The appeal was allowed on the following grounds; 

    • The learned High Court Judge was wrong in making a finding that the couple had fulfilled the requirement under    Article 14 of   Federal Constitution which requires proof that at least one parent was born in Malaysia.
    • The learned High Court Judge was wrong in failing to take into account that the biological parents of the said Child are untraceable up to this date;
  • In this case, the couple could still apply for the Child to be a citizen by applying an invocation of    Article 15A of the   Federal Constitution, namely an application for citizenship by way of registration for consideration by the Minister. 

 

 

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