Can an adopted child be given Malaysian citizenship?

CHO CHIANG HUAT DAN SATU LAGI v PENDAFTAR BESAR KELAHIRAN DAN KEMATIAN, MALAYSIA [2021] MLJU 1811

• A couple (“the Parents”) of Malaysian citizen adopted a baby born and abandoned at Hospital Universiti Kebangsaan Malaysia, Cheras, Kuala Lumpur.

• The Parents then named the baby, Cho Yee Meng (“the Child”) and obtained the Child’s birth certificate dated 20.2.2004.

• The identity of the Child’s biological parents is unknown.

• In the application form for the Child’s birth certificate, the Parents stated that they are the biological parents of the Child, and acting on this information, the said birth certificate was issued.

• In 2016, upon an investigation conducted by the National Registration Department (“the NRD”), it was revealed that the Parents are not the biological parents of the Child.

• On 18.10.2016, the Child’s father made an application to NRD to remove the particulars of biological parents from the Child’s birth register by way of application for correction of errors under section 27(2) of the Births and Deaths Registration Act 1957 (“BDRA 1957”)

• On 3.11.2016, the NRD issued a new birth certificate of the child and recorded the particulars of biological parents as “maklumat tidak diperolehi”.

• On 29.11.2016, the Parents filed an adoption application at the Pulau Pinang High Court to formally adopt the Child under the Adoption Act 1952 and the adoption order was granted by the High Court.

• Next, the Parents applied to the NRD for a Certificate of Birth under section 25A of the Adoption Act 1952 and were issued with a new birth certificate for the Child.

• However, the status of the Child stated in the new birth certificate is a ‘non-citizen’.

• The Parents made an application via judicial review seeking, amongst others that the Child is a citizen of Malaysia by operation of law and for the birth certificate to be reissued.

• The High Court dismissed the Parent’s application.

• The Parent’s appealed to the Court of Appeal.

• The Court of Appeal agreed with the High Court that the Child cannot be granted citizenship because the Parents are not the Child’s biological parents.

• The adoption order and the provisions in the Adoption Act 1952 do not confer any citizenship status to an adopted child.

• The Child’s birth certificate can only be registered as a citizen if the Child is born to a Malaysian parent.