1. ) CHONG KOK WAI 2. ) WEE LEE CHENG v 1. ) KETUA PENGARAH JABATAN PENDAFTARAN NEGARA 2. ) MENTERI DALAM NEGERI MALAYSIA 3. ) Kerajaan Malaysia

Case Significance

Illustrates the narrow construction of the citizenship-by-operation-of-law provisions of the Federal Constitution as applied to an adopted child born to a foreign mother, and the alternative recourse to the Government's discretion under Article 15A.

This High Court decision at Shah Alam, delivered by Elaine Yap Chin Gaik JC, concerns the citizenship status of an adopted child. The plaintiffs, the child's adoptive Malaysian parents, sought declaratory and other relief affecting the citizenship of the child, whom the authorities treated as a non-citizen. The child had been born at a hospital in Kuala Lumpur to an Indonesian mother and an unknown father, and had later been adopted by the plaintiffs; the Indonesian mother had not registered the child's birth under Indonesian law. Invoking Article 14 and the citizenship provisions in the Second Schedule to the Perlembagaan Persekutuan (the Federal Constitution), the plaintiffs contended that the child was a citizen by operation of law.

The central question was the proper construction of the relevant limb of the Second Schedule — in particular whether the child qualified for citizenship by operation of law as a person not born a citizen of any other country. On one view (the "wide" interpretation) the failure to register the birth in Indonesia might leave the child stateless and thus a citizen of Malaysia; on the "narrow" interpretation, the child's citizenship in this context is determined solely by descent from the birth mother. The Court considered the competing constructions and the availability of an alternative route to citizenship.

The Court held, with evident reluctance, that it had to adopt the narrow interpretation: the child's citizenship for the purposes of the relevant provision was determined by descent from his Indonesian birth mother, so that the child was to be regarded as born a citizen of Indonesia and did not qualify for Malaysian citizenship by operation of law. The wider interpretation was, in the Court's view, unduly strained to achieve a purpose that could be met by other means — namely an application under Article 15A of the Federal Constitution, as the defendants' counsel acknowledged. The Court accordingly dismissed the originating summons, with no order as to costs. The judgment is a useful illustration of the narrow construction of the citizenship-by-operation-of-law provisions as applied to an adopted child born to a foreign mother, and of the alternative recourse to the Government's discretion under Article 15A.