Court of Appeal rules woman abandoned at birth entitled to citizenship

PUTRAJAYA: The Court of Appeal in a 2-1 majority decision ruled that a 23-year-old woman who was adopted by Malaysian parents, was abandoned when she was born at a private hospital, and that she is entitled to Malaysian citizenship.

Justice Datuk S. Nantha Balan who read out the majority ruling said the woman was entitled to be a citizen of Malaysia by operation of law, by virtue of her birth within the federation of Malaysia, pursuant to Article 14(1)(b), Section 1(a) of Part II of Second Schedule of the Federal Constitution, read together with Section 19B of Part III of the Second Schedule of the Federal Constitution.

He said the court also granted a certiorari order to quash the Registrar-General of Births and Deaths Malaysia's decision in issuing and signing a birth certificate of the woman as a non-citizen.

The court also granted a mandamus order sought by the woman directing the respondent (Registrar-General of Births and Deaths Malaysia) to reissue the birth certificate and register the woman as a citizen.

"We are of the view that the facts disclose that the woman was abandoned. We do not take the fact that payment was made to an unknown intermediary, detracts from the fact there was an abandonment of the baby from her biological parents.

"And as such, given the term 'exposed' the widest possible meaning and interpretation, we find the woman was abandoned and therefore qualified for citizenship.

"In the circumstances, we by the majority, find merit in the appeal. The appeal is allowed and the High Court decision is set aside," he said when delivering the decision which was agreed to by Datuk Seri Kamaludin Md Said, who led the three-judge panel.

Justice Nantha Balan further said the appellate court was bound by the Federal Court's November 2021 decision in a similar case involving a child abandoned at birth at a hospital in Kuala Lumpur, and who was later also adopted by Malaysian parents.

Besides the woman, the other two appellants are her adoptive parents aged 70 and 69.

Meanwhile, Justice Datuk Azizah Nawawi, in her dissenting judgment, said, the issue of abandonment was not pleaded nor raised in the affidavit, and as such, the respondent was not in a position to explain the issue of abandonment.

She added that the adoptive parents had made payment to the biological mother through an intermediary.

"The facts disclose an adoption, not abandonment by the biological mother. The child was not left at the hospital, but given up for adoption with the assistance of an intermediary and hospital.

"Further, in the birth certificate, the adoptive parents had claimed to be birth parents of the child and they never claimed the child was abandoned. It was only after an investigation that the respondent found that they are not the biological parents of the child.

"Therefore, I dismiss the appeal with no order as to costs," Justice Azizah said.

Justice Azizah said with regards to adoptive parents, the Court of Appeal's decision in another case, decided that adoptive parents were not biological parents within Article 14 of Part II of the Second Schedule of the Federal Constitution.

On the issue of stateless children, she referred to the Court of Appeal's decision in two other cases which held that both jus soli and jus sanguinis must be established, and this was not so in the factual circumstances of this case.

The woman and her adoptive parents are appealing against the Kuala Lumpur High Court's decision on June 2, 2020, which dismissed an originating summons (OS) of the trio for citizenship application.

In the OS, the adoptive parents were informed by a friend that there is a baby for adoption born on July 9, 1999. They were registered as the parents of the child in the birth certificate issued by the Registrar-General of Births and Deaths Malaysia.

The parents of the child had applied to NRD to register the child as a citizen of Malaysia, however, the application was rejected after a wait of three years on March 30, 2018, without any explanation, and they applied again on May 28, 2018, but the application remained pending thereafter for another three years.

It is to be noted that the biological parents of the child are yet to be determined, with all efforts to locate them so far futile, and the hospital where the child had been delivered, shut down.

During the proceedings via Zoom, the appellants were represented by counsel Ranee Sreedharan while the Registrar-General of Births and Deaths Malaysia was represented by senior federal counsel Ahmad Hanir Hambaly and federal counsel Ng Wee Li.

-- BERNAMA