Cases concerning children born in Malaysia to a mother whose identity is unknown

Our team ended the year 2021 by successfully setting a landmark precedent in the Federal Court in the case of CCH & Anor v Pendaftar Besar Bagi Kelahiran dan Kematian, Malaysia [2022] 1 MLJ 71 (“CCH”). The Federal Court held in favour of the adoptive parents who were represented by our Mr Raymond Mah, Ms Jasmine Wong and Mr Eric Toh together with Dato' Cyrus Das as lead counsel.

In CCH, the Federal Court held that the child, who was born and abandoned in a hospital in Cheras, is a citizen of Malaysia by virtue of his abandonment. As a result of the abandonment, the child is also presumed to be born to a mother who was a permanent resident of Malaysia pursuant to Article 14(1)(b) read with Part III, Section 19B, Second Schedule of the Federal Constitution.

Following the precedent set by the Federal Court in CCH, the Ipoh High Court on 28.10.2022 granted an order in favour of the plaintiff in the case of MYY v Pendaftar Besar Bagi Kelahiran dan Kematian, Malaysia (2022), represented by our Ms Jasmine Wong and Ms Rachel Ng. In this case, the child, who was born in a medical centre in Kuala Lumpur, was handed over to the plaintiff by an acquaintance. The plaintiff subsequently adopted the child under the Adoption Act 1952. The plaintiff does not have knowledge of the child's biological mother. During the course of proceedings, the defendant government disputed the child's place of birth in Kuala Lumpur. 

Even though the child's place of birth was disputed by the defendant, the High Court acknowledged the existence of the child and accepted that the identity of the child's biological mother is not known. The High Court further found that the government was unable to discharge the burden of proving that the child was not abandoned. Accordingly, the High Court held that it is bound by the decision in CCH and declared the child a Malaysian citizen. 

Cases concerning children born overseas to Malaysian mothers

On 5.8.2022, the Court of Appeal in the 2 appeals which were heard together (reported as MSAM v Ketua Pengarah Pendaftaran & Ors and another appeal  [2022] 5 MLJ 194) decided that children born overseas to Malaysian mothers (and fathers who are non-citizens) are not entitled to citizenship by operation of law. 

The first appeal (“MSAM”), represented by our Mr Raymond Mah, Ms Jasmine Wong and Mr Eric Toh with Dato' Cyrus Das as lead counsel, concerns the appellant who was born in India to a Malaysian mother while the second appeal (“Family Frontiers”) concerns the citizenship of the children of six Malaysian mothers. 

The appeal concerns two conflicting decisions of the High Court on the interpretation of Part II Section 1(b) of the Second Schedule of the Federal Constitution which states that every person is a Malaysian citizen by operation of law if they were born outside of Malaysia to a father who is a Malaysian citizen at the time of birth. 

The High Court in MSAM dismissed the plaintiff's application on the ground that the word “father” in Part II Section 1(b) of the Second Schedule of the Federal Constitution refers to a “male parent”. The plaintiff is therefore not entitled to citizenship by operation of law on the basis that her father is not a Malaysian citizen. 

In contrast, the High Court in Family Frontiers took a more liberal approach and held that the word “father” must be interpreted harmoniously to include “mother”. The High Court effectively ruled that children born overseas to Malaysian mothers are citizens by operation of law under the Federal Constitution. You can read our case update on Family Frontiers here. 

Both MSAM and Family Frontiers were heard together by the Court of Appeal on 23.3.2022 and 22.6.2022. On 5.8.2022, the Court of Appeal by a 2-1 majority decided in favour of the government and held that children who were born overseas to Malaysian mothers are not entitled to automatic citizenship. 

The Court of Appeal held that the choice and use of the word “father” by the framers of the Constitution was deliberate and context-sensitive. It was not meant to include “mother”. The Court of Appeal further held that the High Court is not well-placed in a position “to find a remedy to address the grievances of the mothers” in Family Frontiers. 

The plaintiffs in MSAM and Family Frontiers have applied for leave to appeal to the Federal Court. Both leave applications are scheduled to be heard by the Federal Court on 14.12.2022.

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