CCH & Anor v Pendaftar Besar bagi Kelahiran dan Kematian, Malaysia

Parties (including notable third parties)

CCH and ADY (anonymised initials) (Appellants); Pendaftar Besar bagi Kelahiran dan Kematian, Malaysia (the Registrar-General of Births and Deaths of Malaysia) (Respondent)

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Summary of Facts

The case concerns whether a child who was abandoned at birth and later adopted is entitled to Malaysian citizenship by operation of law. The Appellants are the child's adoptive parents, and the Respondent is the Registrar-General of Births and Deaths of Malaysia (The Registrar-General).

In January 2004, the Appellants adopted the child (referred to as ‘CYM’) and represented themselves to the Registrar-General as his biological parents, believing they had formally adopted him. The Registrar-General issued a first birth certificate accordingly.

In April 2016, when the child turned twelve, the Appellants applied for a MyKad (a national identity card for Malaysian citizens aged 12 and above) for him. The National Registration Department declined to issue it and, after an investigation, determined that the Appellants were not the biological parents and that the child had never been formally adopted. The Appellants surrendered the first birth certificate, and in November 2016, the Registrar-General issued a second birth certificate recording the parents as ‘not available’ and the child's citizenship as ‘yet to be determined’.

Dissatisfied with the lack of detail in the second birth certificate, the Appellants sought legal advice and were advised to formally adopt the child.  They were able to do this after obtaining a court adoption order on 20 July 2017. Armed with this order, they reapplied to the Department for a new birth certificate. On 21 September 2017, the Registrar-General issued a third certificate, which changed the child's citizenship status from ‘yet to be determined’ to ‘non-citizen’ and changed the certificate colour from citizen-coding to non-citizen-coding.

The Appellants' primary grievance was that the child was rendered a non-citizen of Malaysia and, as his biological parents' identities and citizenship status were completely unknown, left effectively stateless.

The Appellants filed for judicial review seeking declarations that the child was a citizen by operation of law under the Federal Constitution, to quash the third birth certificate, and to compel reissuance of a certificate registering the child as a citizen. The High Court dismissed the application, prompting this appeal.

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Legal Arguments

Legal Arguments by the Appellants

The Appellants first contended that the child was entitled to citizenship under section 1(e) of Part II of the Second Schedule to the Federal Constitution (which addresses citizenship for persons born in Malaysia who would otherwise be stateless). They argued that this provision should apply because the child was abandoned at birth and there was no proof that he was a citizen of any other country.

Second, the Appellants argued that the child should be granted citizenship under section 1(a) of Part II (which confers citizenship by operation of law on every person born within the Federation of whose parents one at least is either a citizen or permanently resident in the Federation). They contended that the word ‘parents’ in that section should be construed liberally to include adoptive parents, particularly given that the Adoption Act 1952 confers full legal rights on adoptive parents and extinguishes all legal connection to biological parents.

Legal Arguments by the Respondents

In response, the Registrar-General refused to accord citizenship under either provision.

Regarding section 1(e), the Registrar-General maintained that there was no credible evidence of the citizenship status of the child's biological parents, and that to satisfy the provision, an applicant must show that the birth parents are not citizens of any other country.

Outcome

The Court held that the child was entitled to citizenship under section 1(a) of Part II (citizenship for those born in Malaysia to a parent who is a citizen or permanent resident) read together with section 19B of Part III (presumptions for abandoned newborns). Section 19B is a ‘supplementary’ provision designed to close gaps when a child's parentage is unknown.

The Court interpreted ‘found exposed’ broadly to include a child abandoned at birth by a mother whose identity is unknown. A narrower interpretation, the Court warned, would mean ‘the overarching intent of preventing statelessness would be defeated or rendered illusory’ (paragraph 54). Once abandonment is shown, two presumptions arise: firstly, the child is born to a mother permanently resident at the place of finding; and secondly, the date of finding is the date of birth. The presumption ‘automatically serves to complete’ the citizenship requirements unless the contrary is shown (paragraph 61). The burden of proving the contrary falls on any challenger.

The Court emphasised that ‘citizenship by operation of law is a right – a fundamental and constitutional right. It leaves absolutely no room for the exercise of subjective notions... there is no room whatsoever for discretion’ (paragraph 72).  The Respondent ‘had no right or discretion to do anything else certainly much less render the child stateless’ (paragraph 71). The Court also declared that this case is now precedent for authorities dealing with abandoned newborns: if abandonment is true, the Respondent is obligated by the highest law of the land to recognise the child's citizenship by operation of law, except where evidence to the contrary exists.

The Court granted a declaration that the child is a citizen by operation of law, an order of certiorari to quash the third birth certificate, and an order of mandamus to reissue the birth certificate registering the child as a citizen.

International, Regional and Domestic Instruments and Provisions Cited

Source	Instrument name	Provisions cited
Domestic	Federal Constitution of Malaysia	Article 5(1) (right to life and personal liberty); Article 14(1)(b) (citizenship by operation of law); Second Schedule, Part II, Section 1(a) (citizenship for persons born in the Federation to at least one parent who is a citizen or permanent resident); Second Schedule, Part II, Section 1(e) (citizenship for persons born in the Federation who would otherwise be stateless)
Domestic	Adoption Act 1952	Section 9 and Section 25

UNHCR Statelessness Guidelines cited

This case does not cite UNHCR Statelessness Guidelines.

Available commentary

Jamie Chai Yun Liew, 'CYM v Malaysia: Landmark Decision for Adopted Stateless Children has Little Traction Beyond Apex Court' (2023) 5(1) The Statelessness & Citizenship Review 100.

• According to the author, the Federal Court's decision is significant for two reasons:
  • Firstly, the use of a purposive approach to interpret the Constitution. The author highlights that the Court held that in interpreting a fundamental right, ‘the court should give their widest possible meaning’ while ‘having regard to the purpose and intent of those provisions and harmonise their collective meaning’. In doing so, the Court acknowledged that citizenship laws were crafted to guard against statelessness.
  • Secondly, the Federal Court provided a practical approach to evidentiary requirements. The Court went further by finding a presumption that an abandoned child is ‘born to a mother permanently resident’ in Malaysia, with the evidentiary burden shifting to the State to rebut that presumption. The author states that ‘[t]his shift towards a wide and flexible interpretive approach of the Constitution, coupled with the presumption... demonstrates a willingness of the Federal Court to acknowledge that adopted children are kin and therefore automatic citizens of Malaysia by operation of the law’ (page 103).
• The author also identifies ongoing challenges despite this decision:
  • Firstly, the author suggests that ‘in crafting a presumption that the biological mother is a permanent resident, the decision gives the biological mother prominence when examining whether an adopted child is a citizen’. The author's preferred approach is that a factual finding on the biological mother's identity should be irrelevant when it comes to abandoned and adopted children (page 103).
  • Secondly, the author cites public reports that registrars and lower courts have refused to accept the Federal Court's decision on the matter of the citizenship of abandoned children.
• The author concludes that ‘the limited ability of stateless persons to harness this decision to obtain citizenship shows the shortcomings of only relying on legal reform or favourable legal interpretation for lasting change’ (page 104).

Kian Leong Tan, 'Case Commentary: CCH and Anor v Pendaftar Besar bagi Kelahiran dan Kematian, Malaysia' [2021] 4 Malayan Law Journal ccxxiv.

• The author argues that the Court's refusal to address the section 1(e) (the statelessness prevention clause) pathway has diminished the decision’s practical utility. He describes this as ‘a missed opportunity; that creates an absurdity in the law where it is now better for a child to have been abandoned and without knowledge of their birth parents than to have known but been subsequently abandoned by their biological mother’.
• The author notes that the Court recognised both the difficulty of proving a negative fact and the state's superior investigative resources. This is a shift away from the previous approach that placed the entire burden on applicants.