1. ) LIEW SZE YIT 2. ) DOUGLAS LIEW v 1. ) PENDAFTAR KELAHIRAN DAN KEMATIAN 2. ) PENDAFTAR BESAR KELAHIRAN DAN KEMATIAN 3. ) KETUA PENGARAH PENDAFTARAN NEGARA 4. ) MENTERI DALAM NEGERI 5. ) KERAJAAN MALAYSIA

Case Significance

Illustrates the boundary between a claim to citizenship by operation of law under Article 14(1)(b) of the Federal Constitution and the discretionary registration route under Article 15A, and that recasting a failed discretionary application as an entitlement by law may be an abuse of the judicial review process.

This High Court decision at Kuala Lumpur, sitting in its Special Powers Division, concerns an application for leave to commence judicial review in a citizenship dispute. The first applicant was the father and the second applicant his child, who sued through the father as litigation representative. The child had been born in Kuala Lumpur in 2012 to the father, a Malaysian citizen, and a mother who was an Indonesian national; the parents were not married and the mother had since abandoned the child, whose paternity by the father was confirmed by DNA. The child had been classified as a non-citizen since birth. An earlier application to register him as a citizen had been rejected, and the applicants sought a declaration that the child was a citizen by operation of law under Article 14(1)(b) of the Federal Constitution read with the Second Schedule, together with mandamus to re-issue his documents.

The Attorney General objected on three grounds: that there was a fatal misalignment between the decision challenged and the reliefs sought; that there was no arguable case under Article 14(1)(b); and that the application circumvented Article 15A of the Federal Constitution and abused the judicial review process. The court examined the constitutional provisions and the manner in which the application had been framed.

The court accepted the objections. It was persuaded that there was no arguable case under Article 14(1)(b), and that the applicants had repackaged what was in substance a failed exercise of ministerial discretion under Article 15A — under which citizenship may be registered as a matter of discretion — into an alleged entitlement by law, asking the court to "create a decision" where none existed. It held the framing of the application to be an abuse of the judicial review process, and dismissed the application for leave with no order as to costs. The judgment illustrates the boundary between a claim to citizenship by operation of law and the discretionary registration route.