1. ) HARI KRSHNAN A/L S.K. PUVANESWARAN 2. ) MEGHANA A/P POOVANESWARAN v 1. ) KETUA PENGARAH JABATAN PENDAFTARAN NEGARA 2. ) MENTERI DALAM NEGERI MALAYSIA 3. ) Kerajaan Malaysia

Case Significance

Illustrates that citizenship by operation of law under Article 14(1)(b) of the Federal Constitution, read with the Second Schedule, depends on the status of a child's biological parents at birth and not that of adoptive parents, the court dismissing a couple's citizenship claim for their adopted child.

This High Court decision concerns a claim by a married couple for a declaration that their adopted child is a citizen of Malaysia by operation of law, and it turns on the interpretation of Article 14(1)(b) of the Federal Constitution read with the Second Schedule. The plaintiffs, who had decided to adopt after the second plaintiff's medical condition made pregnancy unlikely and attempts at in-vitro fertilisation had failed, took in a newborn child in about July 2010 whose birth mother, following an out-of-wedlock birth, had declined to raise the child and had been unwilling to be recorded as the biological parent; the plaintiffs registered the birth and later sought citizenship for the child by operation of law. To protect the child's welfare, the court did not disclose the child's name and referred to the child only as such. The court held that Article 14(1)(b), read with section 1(a) of Part II of the Second Schedule, confers citizenship by operation of law on a person born in the Federation one of whose parents is, at the time of the birth, a citizen or permanently resident in Malaysia, and that the phrase "at the time of the birth" refers categorically to the child's biological parents; the provision contains no reference to adoptive parents, even Malaysian adoptive parents. Following the decision in Pang Wee See, the court held that the plaintiffs, as adoptive parents, could not confer citizenship on the child under this constitutional provision, because the requirement is directed at the status of the biological parents at birth. The court accordingly dismissed the originating summons, making no order as to costs. It observed that the constitutional test looks to whether, at the moment of birth, a biological parent held the requisite status of citizen or permanent resident, a factual matter fixed at birth that the subsequent devotion of adoptive parents, however genuine, cannot alter or supply. The judgment illustrates that citizenship by operation of law under Article 14(1)(b) depends on the status of a child's biological parents at the time of birth, not that of adoptive parents, however longstanding the adoptive care.