The Court of Appeal today unanimously dismissed two separate applications, the first by an adoptive parent and the second, by a biological father, to compel the National Registration Department (NRD) to grant their children citizenship.
A three-member bench ruled that even though the boys were born in Malaysia, it was incumbent on the applicants to prove the boys were stateless or were not citizens of other countries.
The applicants have to show evidence based on jus soli (birthright citizenship) and jus sanguinis, a principle of nationality law by which citizenship is not determined by place of birth but by having one or both parents who are citizens of the state.
Justice Badariah Sahamid said in the case of Than Siew Beng and the 18-year-old adopted child, there was a question about the boy's lineage as he was taken by the adoptive parents without them knowing his lineage.
The boy was born in a polyclinic in Ampang and was taken in by his adoptive parents who had his birth certificate issued under the adoptive parents name.
However, the NRD revoked the boy's citizenship when he applied for an IC after the department suspected something amiss.
Justice Badariah said there is no dispute that the boy was born at the polyclinic and has fulfilled jus soli requirement. However, there is a question about his lineage at the time of birth.
The judge cited the case of Ong Boon Hua where the burden is on the applicant to prove his case, and failure to do so would be fatal.
“As the adopted parents failed to prove the boy's lineage, the court agrees with the High Court's decision on a balance of probabilities - that the principle of jus sanguinis has not been satisfied,” she said.
The bench was led by Justice David Wong Dak Wah and the third member was Justice Harminder Singh Dhaliwal.
Father Malaysian but son illegitimate
The second case involved Lim Jen Hsian's application to have his seven-year-old child, born to a Thai woman, to be declared a citizen, which was also dismissed.
The couple were not married and the woman later left Lim, with the paternal grandmother taking care of the boy.
The judge said the illegitimacy of Lim's son meant that he would not be considered stateless, as he would take on Thai citizenship based on his biological mother’s origin.
“While the second appellant's father is Malaysian, because of his illegitimate status, the second appellant does not acquire the citizenship of the father; he acquires the citizenship of the biological mother who is a Thai national,” Justice Badariah noted.
“Thus on the available evidence, the appellants have failed to prove a prima facie case that the second appellant is not born a citizen of any country,” she added.
“The burden of proof has not shifted to the NRD to prove its case,” Justice Badariah said in dismissing the appeal and upholding the High Court's decision.
Lawyers N Surendran and Latheefa Koya appeared for the two appellants in both cases while senior federal counsel Habibah Harun appeared for the respondents - NRD's director-general, the Home Ministry and government of Malaysia.
Surendran said they will file for leave to appeal in the Federal Court as both applications were made under Article 14 (1) (b) Part II of the Second Schedule of Clause 1 (e) of the Federal Constitution regarding stateless children.
He added that the issues of jus soli and jus sanguinis were never ventilated in court.
The seven-year-old boy's grandmother, Lee Ah Moi, expressed sadness with the decision as her grandson is not granted citizenship despite the father being a Malaysian.
“Every time he prays to be a Malaysian before coming to court,” she said.
“As a result of today's decision, it is difficult for him to gain other benefits as we have to pay for his school education and also medical treatment,” the grandmother lamented.
She is concerned about the well-being of her grandson.- Mkini