Highest Court Rules In Favour of Citizenship For Child Abandoned in Malaysia

POON WEI YING

Poon Wei Ying

Legal Associate
Kuala Lumpur

It is often easy to overlook the importance of the rights that one possesses as a Malaysian citizen when one has never experienced the hardship of living in Malaysia without those rights. The hardships that a stateless individual face includes being unable to obtain a driving license, being unable to open a bank account and unable to travel to other countries.

In November 2021, the Federal Court in the case of CCH & Anor (on behalf of themselves and as Litigation Representatives of one CYM, a child) v Pendaftar Besar bagi Kelahiran dan Kematian, Malaysia (“CCH”) had taken the initial step to alleviate some of these hardships faced by a stateless individual, by declaring citizenship to a child who was abandoned as a newborn in a hospital in Cheras and subsequently adopted by a Malaysian couple.

The Federal Court arrived at this decision by interpreting Article 14(1)(b), section 1(a) of Part II of the Second Schedule read together with section 19B of Part III of the Second Schedule of the Federal Constitution.

The Federal Court also invoked the constitutional presumption in section 19B of Part III of the Second Schedule of the Federal Constitution, that once it is shown that a newborn child is found exposed or abandoned, it is presumed that the child is born to a mother who is permanently resident at the place where the finding of the child was made. Interestingly, the Federal Court also held that it shall be presumed that the date of the finding of the child is taken as the date of the child’s birth.

The Federal Court made it clear that it is for the party challenging any of the presumptions above (usually the National Registration Department and Registrar-General of Births and Deaths) to show that the child was not born of a mother permanently resident at the place where the newborn child was found; or the date of the finding of the child is not the date of the birth.

If the party challenging the application of the presumption in section 19B is not successful in rebutting the same, an abandoned newborn child would be entitled to citizenship by operation of law.

The Federal Court’s decision in CCH is therefore welcomed, as it sets precedent on how the Ministry of Home Affairs, National Registration Department and Registrar-General of Births and Deaths ought to deal with future cases in relation to abandoned newborn children. It absolves the need for adoptive parents to prove the status of the child’s biological parents or mother and protects newborn children who are abandoned by their biological parent(s) and subsequently adopted.

About the Author

Poon Wei Ying is an Associate of NKPT who graduated with First Class Honours from the Cardiff University, United Kingdom. She believes in giving back to the society and that education can change a person’s life.

Disclaimer: This post is not intended as a solicitation, is not legal advice, and is not a substitute for obtaining legal advice. You should not act upon any such information without first seeking qualified professional counsel on your specific matter.

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  • PERSONAL DATA PROTECTION NOTICE

PERSONAL DATA PROTECTION NOTICE

NADZARIN KUOK PUTHUCHEARY & TAN
ADVOCATES & SOLICITORS
PERSONAL DATA PROTECTION NOTICE

(pursuant to section 7 of Personal Data Protection Act 2010)

Nadzarin Kuok Puthucheary & Tan, Advocates & Solicitors (“NKPT”) is committed to protect your personal data and takes into consideration your rights in regards to collection, use and storage of your personal data. We treat the protection of your personal data as a high priority matter.

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*This Privacy Notice is last updated on: June 2014

 

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Thank you