IRHAZMI BIN ALI KASIM 1. ) PENDAFTAR BESAR KELAHIRAN DAN KEMATIAN JABATAN PENDAFTARAN NEGARA MALAYSIA 2. ) KETUA PENGARAH JABATAN PENDAFTARAN NEGARA 3. ) Ketua Setiausaha Menteri Dalam Negeri

JA-24NCvC-969-08/2023 Kand. 23 10/06/2025 12:24:18 IN THE HIGH COURT OF MALAYA JOHOR BAHRU IN THE STATE OF JOHOR DARUL TAKZIM, MALAYSIA ORIGINATING SUMMONS NO: JA-24NCVC-969-08/2023 In the matter of Order 7, 73 and 76 Rules of Court, 2012 AND In the matter of Article 19 (1) (a) (b) (c), and 2 (a), (b), (c) Part III Federal Constitution, Malaysia AND In the matter of Second Schedule, Part II, Article 14 (1) (b) read together with Section l (e) Federal Constitution, Malaysia AND In the matter of National Registration Act 1959 and Regulation 5 (3) (a) National Registration Regulations 1990 AND In the matter of Chapter VI and VIII Specific Relief Act, 1950 AND In the matter of Section 25 (2) Court of Judicature Act1964 BETWEEN S/N DrEGtOIGYUazijzuv5AnRA 1 **Note : Serial number will be used to verify the originality of this document via eFILING portal IRHAZMI BIN ALI KASIM … PLAINTIFF AND 1. REGISTRAR-GENERAL OF BIRTHS AND DEATHS 2. DIRECTOR GENERAL OF NATIONAL REGISTRATION 3. SECRETARY GENERAL MINISTRY OF HOME AFFAIRS ... DEFENDANTS GROUNDS OF JUDGMENT Introduction [1] This was an application by the Plaintiff (“P”) by way of Originating Summons (Enclosure 1) to move this Court for the following reliefs:- (a) declaration that P is a Malaysian citizen by operation of law under Article 14(1)(b) read together with 14(1)(e) of the Federal Constitution (“FC”) or in the alternative by naturalization under Article 19(1)(a), (b), (c) and 2(a), (b), (c) under Part III of the FC; (b) an order for the defendants to issue a new Certificate of Birth to P that endorses P’s citizenship as Malaysian; (c) an order for the defendants to issue a National Registration Identity Card to P as a Malaysian citizen; and (d) an order for the defendants to update P’s particulars as a citizen of Malaysia in the registers kept under s.4 of the S/N DrEGtOIGYUazijzuv5AnRA 2 **Note : Serial number will be used to verify the originality of this document via eFILING portal National Registration Act 1959 and regulations 4, 11 and 14 National Registration Regulations 1990. [2] The Defendants opposed P’s application. [3] The following are the cause papers filed by the parties: - (a) Originating Summons dated 30.08.2023 (“OS”); (b) Plaintiff’s Affidavit in-Support affirmed on 14.08.2023 (“AIS”); (c) Defendant’s Affidavit in-Reply affirmed on 21.11.2023 (“DAIR”); (d) Plaintiff’s Affidavit in-Reply affirmed on 12.12.2023 (“PAIR”) [4] Both parties had also put in their respective written submissions before this Court. [5] Having perused the cause papers, the written submissions, and after having heard arguments from both parties’ learned counsel, this Court dismissed the OS with no order as to costs. [6] Below is the Grounds of Judgment of this Court. Salient facts [7] P was born on 27.01.1989 at 10.31am at the Kuala Lumpur General Hospital. [8] P was then issued with a Certificate of Birth bearing registration No. l026266 (exhibit IA-1 in AIR). The said ertificate and the particulars S/N DrEGtOIGYUazijzuv5AnRA 3 **Note : Serial number will be used to verify the originality of this document via eFILING portal as stated therein are not disputed by the Defendants (see: paragraph 5, paragraph 11.3 and exhibit ‘ZM-3’ in DAIR). [9] A perusal of the said certificate reveals that P’s biological parents are Nurmi Bt Mukhtar as the mother and Ali Kasim Bin Sarin as the father. Both of them (hereinafter to be referred to as “parents” or “biological parents”) are recorded as of Indonesian descent. [10] From another document produced by the Defendants titled as ‘Daftar Kelahiran (Borang A)’ (exhibit ZM-4 in DAIR), it is further revealed that P’s father was recorded as having no identity documents while P’s mother was categorized as an illegal immigrant. [11] P claimed that he had attempted on numerous times to apply for Malaysia citizenship but were rejected at the counter even before P could filed the relevant documents. The Defendants however refuted this claim. [12] Plaintiff further averred that he made his first application to obtain a temporary resident card or what is commonly known as MyKAS on 30.12.2008 and this was approved on 23.10.2012 as evident from exhibit ZM-1 DAIR. The validity of the said MyKas was for a period of 5 years. [13] Subsequent to the above, the MyKAS Application Committee Panel on 12.12.2017 approved P’s application for a replacement of his MyKAS as could be seen in exhibit ZM-2 DAIR. It is also stated S/N DrEGtOIGYUazijzuv5AnRA 4 **Note : Serial number will be used to verify the originality of this document via eFILING portal therein that P’s parents are not Malaysian citizens, are of Indonesian descent and there are no identification documents concerning them. [14] The new MyKAS issued as replacement by the National Registration Department (NRD) is also valid for five (5) years and expired on 12.12.2022. [15] P averred that he did try to apply for an extension of his MyKAS after the said expiry date but was rejected by the National Registration Department. This assertion was strictly denied by the Defendants by deposing that there were no records whatsoever within their possession to show that P had indeed made such application. [16] Finally, P also admitted that he did not make any application to become a permanent resident of Malaysia because he felt that such application would cause prejudice to him since he has spent his entire 34 years in Malaysia, has married a Malaysian wife and has children who also suffered hardships due to P’s status as non-citizen of Malaysia. [17] Within such background, P claimed that he is stateless. [18] Since P’s OS was predicated on citizenship by operation of law and naturalization, this Grounds of Judgment would only discuss on the said two modes without touching on other modes for application for citizenship under the FC. Citizenship by operation of law [19] Firstly, it is trite law that citizenship by operation of law is acquired automatically at birth subject to certain qualifications. In fact, if all S/N DrEGtOIGYUazijzuv5AnRA 5 **Note : Serial number will be used to verify the originality of this document via eFILING portal the requirements are met there should be no necessity in the first place to make an application for it. Those who obtain or acquire their citizenship under this category are those who in accordance of the FC are Malaysian citizens without volition on their part, without a choice in the matter by the Federal Government of Malaysia and without oath or formality. [20] The abovesaid legal position can be found in the Federal Court decision in CTEB & Anor v Ketua Pengarah Pendaftaran Negara, Malaysia & Ors [2021] 6 CLJ 471 where it was held that: - “[49] First, the approach advanced by learned counsel defies the concept of citizenship by operation of law as being determined upon birth. At the risk of repeating, citizenship by operation of law is acquired automatically at birth either within or outside Malaysia, subject to certain qualifications without any application to be made (see R.H. Hickling, 'An Introduction to the Federal Constitution' (Federation of Malaya Information Services 1960) at p. 24). [50] Malaysian citizens who acquire this category of citizenship are those who, by virtue of the FC, are citizens without volition on their part, without a choice in the matter by the Government and without oath or (in most cases) formality (see L.A. Sheridan, Harry E. Groves, 'The Constitution of Malaysia ', (4th edn, Singapore: Malayan Law Journal 1987) and Emeritus Professor Datuk Dr. Shad Saleem Faruqi, 'Our Constitution ' (Sweet & Maxwell, Thomson Reuters 2019)).”. [21] Next, the general concept relating to citizenship has been explained by the Court of Appeal in Pendaftar Besar Kelahiran Dan Kematian, Malaysia v Pang Wee See & Anor [2017] 7 CLJ 33 to be of two elements, namely jus soli (citizenship determined by the S/N DrEGtOIGYUazijzuv5AnRA 6 **Note : Serial number will be used to verify the originality of this document via eFILING portal place or territory of birth) and jus sanguinis (citizenship by having one or both parents as citizens of the state): - “[29] In determining citizenship of a person, two concepts are commonly applied, namely the concept of jus soli and the concept of jus sanguinis. Jus soli which means 'right of the soil', and commonly referred to as birthright citizenship, is the right of anyone born in the territory of a State to nationality or citizenship. The determining factor being the place or territory where a person was born. In the case of jus sanguinis, which in Latin means 'right of blood', is 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…”. [22] Within the context of our Grundnorm, citizenship by operation of law is provided in Article 14(1) of FC which reads: - “14 (1) Subject to the provisions of this Part, the following persons are citizens by operation of law, that is to say: (a) every person born before Malaysia Day who is a citizen of the Federation by virtue of the provisions contained in Part I of the Second Schedule; and (b) every person born on or after Malaysia Day, and having any of the qualifications specified in Part II of the Second Schedule. (c) (Repealed). (2) (Repealed). (3) (Repealed).”. [23] From the facts, it is not disputed that P was born on 27.01.1989 that is after Malaysia Day (16.09.1963). That being the case, Article S/N DrEGtOIGYUazijzuv5AnRA 7 **Note : Serial number will be used to verify the originality of this document via eFILING portal 14(1)(b) FC is applicable to P no doubt. However, there are further qualifications as specified in Part II of the Second Schedule of the FC that P would have to fulfill. [24] Part II, Second Schedule FC reads: - “CITIZENSHIP BY OPERATION OF LAW OF PERSONS BORN ON OR AFTER MALAYSIA DAY 1. Subject to the provisions of Part III of this Constitution, the following persons born on or after Malaysia Day are citizens by operation of law, that is to say: (a) every person born within the Federation of whose parents one at least is at the time of the birth either a citizen or permanently resident in the Federation; and (b) every person born outside the Federation whose father is at the time of the birth a citizen and either was born in the Federation or is at the time of the birth in the service of the Federation or of a State; and (c) every person born outside the Federation whose father is at the time of the birth a citizen and whose birth is, within one year of its occurrence or within such longer period as the Federal Government may in any particular case allow, registered at a consulate of the Federation or, if it occurs in Brunei or in a territory prescribed for this purpose by order of the Yang di-Pertuan Agong, registered with the Federal Government; and (d) every person born in Singapore of whose parents one at least is at the time of the birth a citizen and who is not born a citizen otherwise than by virtue of this paragraph; and (e) every person born within the Federation who is not born a citizen of any country otherwise than by virtue of this paragraph. S/N DrEGtOIGYUazijzuv5AnRA 8 **Note : Serial number will be used to verify the originality of this document via eFILING portal 2. (1) A person is not a citizen by virtue of paragraph (a), (d) or (e) of section 1 if, at the time of his birth, his father, not being a citizen, possesses such immunity from suit and legal process as is accorded to an envoy of a sovereign power accredited to the Yang di-Pertuan Agong, or if his father is then an enemy alien and the birth occurs in a place under the occupation of the enemy. (2) In section 1 the reference in paragraph (b) to a person having been born in the Federation includes his having been born before Malaysia Day in the territories comprised in the States of Sabah and Sarawak. (3) For the purposes of paragraph (e) of section 1 a person is to be treated as having at birth any citizenship which he acquires within one year afterwards by virtue of any provision corresponding to paragraph (c) of that section or otherwise.”. [25] The aforesaid Part II, Second Schedule FC appears to provide further sub-category of persons who are born on or after Malaysia day, this time by segregating the said persons’ place of birth either in or outside Malaysia. [26] Applying the said sub-category, Section 1 paragraph (b), (c) and (d) of Part II, Second Schedule FC certainly would not be applicable to P since P was born in Kuala Lumpur, Malaysia. [27] Thus, what left to be considered is whether P has met the qualifications as set out in paragraph (a) or paragraph (e) under Section 1 of Part II, Second Schedule FC. [28] Upon proper perusal of paragraph (a) of Section 1 of Part II, Second Schedule FC, P still does not meet the prescribed criteria in the said paragraph (a) since P’s father or mother was shown in P’s Certificate S/N DrEGtOIGYUazijzuv5AnRA 9 **Note : Serial number will be used to verify the originality of this document via eFILING portal of Birth to be neither a citizen or permanent resident of Malaysia at P’s time of birth. [29] Accordingly, only paragraph (e) of Section 1 of Part II, Second Schedule FC appears to be applicable to P. This is in fact, and rightfully so, the very provision relied by P in moving this Court for a declaration that he is entitled as a citizen of Malaysia by operation of law on the basis that he is ‘not born a citizen of any country’ or commonly referred to as ‘stateless’. [30] Thus, this Court finds that although P has established from the facts that he has fulfilled the jus soli element, further investigation on jus sanguini is necessary in order to determine whether P is ‘not born a citizen of any country’. [31] In this regard, it is instructive to refer to Than Siew Beng & Anor v Ketua Pengarah Jabatan Pendaftaran Negara & Ors [2017] 8 CLJ 16 where it was held by the Court of Appeal that: - “[27] The contentious issue is in respect of the requirement of jus sanguinis in s. 1(e) of Part II of the Second Schedule of the Federal Constitution, as expressed by the phrase, "who is not born a citizen of any country". For the purposes of this requirement, the material time to determine the status of the second appellant's lineage is at the time of his birth. … [35] A plain reading of s. 1(e) "was not born a citizen of any country" refers to the relationship of the second appellant to his biological and lawful parents at the time of his birth…”. [32] On this account, P deposed in AIS paragraph 4 that: - S/N DrEGtOIGYUazijzuv5AnRA 10 **Note : Serial number will be used to verify the originality of this document via eFILING portal “4. Saya dilahirkan di Hospital Bersalin Kuala Lumpur pada 27 Januari, 1989. Melalui daftar surat beranak saya tertulis ibu dan bapa saya adalah bukan warganegara dan berketurunan Indonesia tetapi tiada sebarang dokumen pengenalan seperti nombor kad pengenalan atau nombor paspot ibu dan ayah saya dinyatakan dalam daftar surat beranak tersebut. Untuk pengetahuan Mahkamah di dalam sijil kelahiran saya menyatakan keturunan saya adalah Indonesia dan status bagi warganegara saya adalah ‘Bukan Warganegara’.”. [33] Further at paragraph 10 of the same AIS, P deposed that: - “10. Yang Arif, saya dengan rendah diri ingin memohon perhatian Mahkamah Yang Mulia ini agar dapat meneliti keadaan saya ini. Saya telah dilahirkan di dalam negara Malaysia ini pada tahun 1989 dan kini sudah berumur 34 tahun. Dalam Sijil Kelahiran saya ditulis saya sebagai ‘Bukan Warganegara’. Saya juga tidak mempunyai status sebagai warganegara Indonesia. Oleh itu saya adalah orang yang tidak mempunyai negara [‘stateless’].”. [34] Next, P also deposed in paragraph 14 AIS that he, through his solicitors, had written a letter on 02.08.2023 to the Indonesian Consulate General, Johor Bahru to ascertain whether he is an Indonesian citizen or not. The letter was exhibited in the AIS as exhibit IA-4, reproduced below as follows: - “Ruj Kami: SA/2279/JPN/03/23/3 Ruj Tuan: sila nyatakan Tarikh: 2 Ogos 2023 Konsulat Jenderal Republik Indonesia No 46, Jalan Taat Off Jalan Tun Abdul Razak 80100 Johor Bahru, Johor. S/N DrEGtOIGYUazijzuv5AnRA 11 **Note : Serial number will be used to verify the originality of this document via eFILING portal Tuan/Puan, PER: PERMOHONAN PENGESAHAN KEWARGANEGARAAN NAMA: IRHAZMI BIN ALI KASIM (SIJIL DAFTAR KELAHIRAN: I026266) Kami merujuk kepada perkara tersebut diatas. Kami mewakili Encik Irhazmi Bin Ali Kasim di dalam tindakan ini. Kami ingin memohon pihak tuan untuk mengesahkan sama ada anak guam kami, Encik Irhazmi Bin Ali Kasim adalah seorang warganegara Indonesia ataupun tidak. Sesalinan sijil kelahiran ada kami lampirkan bersama. Kami memohon jasabaik tuan untuk pengesahan dapat dibuat dan maklumbalas dari pihak tuan kami dahulukan dengan ucapan ribuan terima kasih. Sekian terima kasih. Yang benar, ………t.t……………… Shaik Adam & Co Advocates & Solicitors”. [35] This Court paused to observe that the said letter from P’s solicitors in gist merely wishes to ascertain whether P is an Indonesian citizen or not. The only reference attached in the same letter was P’s Certificate of Birth. No inquiry whatsoever were made by P or his solicitors regarding to the status of P’ parents nor was there any document attached by P or his solicitors that may at least shed some light on the identity of P’s parents to the said Indonesian consulate. S/N DrEGtOIGYUazijzuv5AnRA 12 **Note : Serial number will be used to verify the originality of this document via eFILING portal [36] Further, it is important to note that there is no actual proof of the same letter being received by the Indonesian Consulate General, Johor Bahru with no acknowledgment of receipt being attached for this Court’s consideration. [37] Although the same letter states as if it was meant to be communicated via email, there is no positive proof that the email was actually and in fact sent to the Indonesian Consulate General, Johor Bahru. Such proof is important since P claimed that no reply was forthcoming to his query. [38] Coming back to matter instant, the uncontroverted evidence before this Court is that P’s parents are of Indonesian descent at the time of P’s birth. In this regard, no disclosure was made by P in his affidavits relating to the whereabouts of his parents either now or any time earlier, nor was there any historical accounts from P’s recollections of memories relating to his biological parents made known to this Court. [39] Such lacunae in this Court’s view is unacceptable since they are supposedly explainable. P is 34 years of age as of the date of this OS. Who raised him up, didn’t he have any idea what happened to his parents all these whiles? [40] That the jus sanguini element is closely related to the issue whether a person is not born not a citizen of any country has been established and repeatedly emphasized in numerous authorities. In fact, a perusal of the written submissions by counsel for the plaintiff would suggest that the said legal position is not disputed. S/N DrEGtOIGYUazijzuv5AnRA 13 **Note : Serial number will be used to verify the originality of this document via eFILING portal [41] The only thing which appeared to be contested from the submission by P’s counsel is on the burden of proof where it was submitted that the burden is on the Defendants to proof that P is not born a citizen of any country. If such contention is true, this would certainly necessitate the Defendants to make its own inquiries or investigations and to bring evidence to Court to show that P at the time of his birth is a citizen of some other country but not Malaysia. [42] But how could that be so when the law is trite that he who asserts must proof? The onus of proof may shift its post between those who assert and those who denied, but in what circumstances? [43] To support P’s proposition that the burden is on the Defendants, reference was made by P’s counsel to few High Court decisions, namely: - (a) Siti Aisyah Yusuf v Attorney General & Ors [2023] 10 CLJ 839; (b) Farah Hani Sukor V Ketua Pengarah Jabatan Pendaftaran Negara Malaysia & Ors [2023] 1 LNS 898; (c) Tan Lee Heng & Anor V Ketua Pengarah Jabatan Pendaftaran Negara & Ors [2018] MLRHU 1836; and (d) Ong Xin Tong V Pendaftar Besar Kelahiran dan Kematian Malaysia & Anor [2022] 6 CLJ. [44] However and with due respect, this Court is in agreement with the Senior Federal Counsel that the facts in all those cases are readily distinguishable from the instant matter and that this Court is bound by the doctrine of stare decisis to apply the rulings of the Court of S/N DrEGtOIGYUazijzuv5AnRA 14 **Note : Serial number will be used to verify the originality of this document via eFILING portal Appeal in the case of Lim Jen Hsian & Anor v Ketua Pengarah Jabatan Pendaftaran Negara & Ors [2017] 8 CLJ 412 where the Court of Appeal held that the applicant would need to satisfy both the Jus Soli and Jus Sanguinis requirements in order to fulfill the requirements of Article 14 (1)(b) FC and Section 1 (e) Part II, Second Schedule FC:- “[27] Article 14(1)(b) of the Federal Constitution encapsulates the requirement of citizenship by jus soli ie, by the place of birth; while s. 1(e) of Part II of the Second Schedule of the Federal Constitution ("not born a citizen of any country") encapsulates the requirement of citizenship by jus sanguinis ie, by blood or lineage. [28] Thus, it would appear that the second appellant would need to satisfy both the requirements of jus soli and jus sanguinis in order to fulfil the requirements of art. 14(1)(b) and s. 1(e) of Part II, Second Schedule of the Federal Constitution.”. [45] In Than Siew Beng (supra) the Court of Appeal also held that such burden of proof is to be discharged by the applicant in the following tone: - “[27] The contentious issue is in respect of the requirement of jus sanguinis in s. 1(e) of Part II of the Second Schedule of the Federal Constitution, as expressed by the phrase, "who is not born a citizen of any country". For the purposes of this requirement, the material time to determine the status of the second appellant's lineage is at the time of his birth. [35] A plain reading of s. 1(e) "was not born a citizen of any country" refers to the relationship of the second appellant to his biological and lawful parents at the time of his birth. The only available documentary evidence- the second appellant's birth certificate (exh. TSB6) contained no information pertaining to the S/N DrEGtOIGYUazijzuv5AnRA 15 **Note : Serial number will be used to verify the originality of this document via eFILING portal biological parents and the relevant particulars were endorsed with "Maklumat Tidak Diperolehi". [36] Since the identity of the child's lawful and biological parents are unknown, it is not possible to determine the lineage of the second appellant that would enable the second appellant to be conferred citizenship by lineage ie, jus sanguinis. [37] Thus in our view, the second appellant has not fulfilled the requirement to be a citizen by operation of law within the meaning of s. 1(e) of Part II of the Second Schedule of the Federal Constitution. (Refer to Chin Kooi Nah v. Pendaftar Besar Kelahiran dan Kematian Malaysia (supra))”. [46] Thus, the averments made and the documents produced by P in his affidavits, in this Court’s view are insufficient to be made as a basis for P to say that he is a stateless person. P has knowledge that his biological parents are of Indonesian descent although not their citizenship status. Therefore, it is incumbent upon P to make specific inquiry to the Indonesian Consulate about his parents whether they are the citizens of Indonesia or otherwise. [47] Now, this is where the lacunae in information about P’s parents will be of concern to this Court. Had enquiry been made of the parents with further and better information supplied to the Indonesian Consulate, P would stand a better chance of knowing the citizenship status of his biological parents. [48] Conversely, had further and better particulars disclosed in Court about P’s biological parents so as to fill in the aforementioned lacunae, this Court would certainly be in a better position to S/N DrEGtOIGYUazijzuv5AnRA 16 **Note : Serial number will be used to verify the originality of this document via eFILING portal appreciate all facts relating to the jus sanguini element whether P is not born a citizen of any other country or otherwise. [49] Thus, to shift the onus of proof to the Defendants before P even produced sufficient evidence that he is not born a citizen of any country would be contrary to the trite law on burden of proof. If authorities are needed, reference can be made from the decision of the Court of Appeal in Than Siew Beng (supra) where it was held: “[29] It is a well-established principle of law that "he who asserts must prove". The burden of proof is on the appellants to establish a prima facie case on the balance of probabilities that the second appellant, "was not born a citizen of any country". [30] Such rule of evidence is enunciated in s. 103 of the Evidence Act 1950 which provides: The burden of proof as to any particular fact lies on that person who wishes the court to believe in its existence, unless it is provided by any law that proof of that fact shall lie on any particular person. [31] In the case of Ong Boon Hua & Anor v. Menteri Hal Ehwal Dalam Negeri, Malaysia & Ors [2008] 5 CLJ 42, it was held that in order to ascertain the citizenship status of the applicant, the burden is on the applicant to furnish the necessary documents, and the absence of such documents would be fatal to the applicant's claim. [32] The learned High Court Judge had referred to the burden borne by the applicant in the following terms: This Court would have to examine the factual matrix of this case and determine whether the 2nd Applicant was "not born a citizen of any country". As stated in the affidavits filed herein, the 1st S/N DrEGtOIGYUazijzuv5AnRA 17 **Note : Serial number will be used to verify the originality of this document via eFILING portal Applicant and his wife had sponsored the surgery of the biological mother of the 2nd Applicant and the 2nd Applicant was taken from his biological mother at the time of his birth at the Poliklinik. Therefore the burden is on the Applicants to show to this Court that the 2nd Applicant "was not born a citizen of any country". [33] The learned High Court Judge had also found that the appellants had failed to prove that reasonable efforts had been made to determine the identity and citizenship status of the second appellant's biological parents. The learned High Court Judge ruled that the mere publication of an advertisement in the papers to solicit information on the identity and citizenship status of the second appellant's biological parents is insufficient. In her grounds of judgment, she had stated thus: From the averment it would appear that the couple knew about the woman whom they have negotiated and finally paid for the medical bills relating to the birth. I believe there was no full and frank disclosure of facts pertaining to the identity of this woman. It would appear the Applicants had not made reasonable attempts to trace the whereabouts of the mother either from the Poliklinik and or even from the informant who could be identified and traceable in order to provide the full and frank facts about the mother.”. [50] P’s counsel also attempted to persuade this Court that the burden is on the Defendants to proof that P ‘is not born a citizen of any country’ by citing a Federal Court case of CCH & Anor v Pendaftar Besar Bagi Kelahiran Dan Kematian Malaysia [2023] 1 MLRA (Federal Court). [51] However, upon proper reading of the said authority, this Court finds that such reliance is, with due respect, totally misplaced. CCH S/N DrEGtOIGYUazijzuv5AnRA 18 **Note : Serial number will be used to verify the originality of this document via eFILING portal concerns with a case of an abandoned baby which was never the case of P. In fact, the expositions of law in CCH relates much to s.19B of Part II of the Second Schedule FC with the operative words “any newborn child found exposed in any place”. Certainly this set of facts would certainly exclude P in its applications. It is axiomatic that for a principle of law to apply there must first be in existence a substratum of facts, the existence of which is postulated by the principle, hence absent such facts, and the proposition becomes quite irrelevant [per Gopal Sri Ram JCA in Teo Hock Guan & Anor v. Johore Builders & Investments Sdn Bhd (1996) 4 CLJ 184]. [52] Further, there is another dimension which this Court viewed as highly important and relevant in ascertaining the contentious burden of proof in the matter instant. It concerns with the prima facie evidence from the contemporaneous documents that P’s parents are not the citizens or permanent residents of Malaysia at the time of P’s birth. Such prima facie evidence is established by virtue of s.33(1) of the Births and Deaths Registration Act 1957 [Act 299] which reads: - “Entry in register as evidence of birth or death 33. (1) Subject to the provisions of this section an entry or a Certificate of Birth or a Certificate of Death relating thereto purporting to have been duly certified under subsection 32(2) shall be received without further or other proof as evidence of such facts and particulars relating to such birth or death as are or were at the time of the making of such entry required by law to be set forth in such entry or certificate.” [53] Thus, by the Defendants producing the Certificate of Birth and the Daftar Kelahiran (Borang A) in DAIR, this Court holds that the burden S/N DrEGtOIGYUazijzuv5AnRA 19 **Note : Serial number will be used to verify the originality of this document via eFILING portal if any on the Defendants’ part had been discharged, thus the onus shifted to P to proof on the balance of probabilities that he is not born of a citizen of any country. [54] Thus, with such scanty affidavit evidence which left much to be desired, this Court found that P had failed to discharge his onus of proof, thus no necessity for the Defendants to be imposed with unnecessary obligations to conduct investigations on P’s parents. To do otherwise, as suggested by P, would also be contrary to reasons since P himself averred that he did not wish to apply for a permanent residence, which he presumably can, simply because he had already spent 34 years of his life in Malaysia without more. This Court is not without sympathy, but sympathy is not a valid ground for a citizenship by operation of law to be recognized. [55] For the sake of completeness, this Court would also consider whether Section 2 (3) Part II Second Schedule FC (as referred earlier in this ground of judgments) is of any assistance to P. [56] On this issue, this Court would like to refer to ST & Anor v Pendaftar Besar Kelahiran Dan Kematian Malaysia & Ors [2024] 3 CLJ 931 where it was explained and in which this Court agrees that: - “[53] In this regard, it is not sufficient to refer to s. 2(3) of Part II of the Second Schedule to merely say that the child has no citizenship of any country one year from the date of the birth of the child. That is not the purpose of the section. All that s. 2(3) does is to treat a person has having any citizenship at the time of birth which citizenship was subsequently acquired within one year from the date of birth either through: (i) any provision S/N DrEGtOIGYUazijzuv5AnRA 20 **Note : Serial number will be used to verify the originality of this document via eFILING portal corresponding with s. 1(c) of Part II of the Second Schedule or (ii) some other means. This principle was established in Tan Soo Yin where the Court of Appeal established that sub-s. 2(3) of s. 1 operates as a presumption as to the time of acquisition of citizenship and to treat any citizenship acquired within one year after birth as citizenship acquired at the time of birth. Based on this reasoning, the sub-s. 2(3) of s. 1, Part II has no application in the instant case.”. [57] What is clear from ST’s decision is that a presumption arises that any citizenship acquired within one (1) year after the birth of a person as citizenship acquired at the time of birth. This accordingly has no application to P’s case and as such does not merit attention of this court [refer also: Tan Soo Vin v Registrar General of Births And Deaths, Malaysia (Civil Appeal Court of Appeal W-01(A)-548- 10/2020 (unreported)]. Citizenship by way of naturalization [58] As stated above, P’s alternative prayer is for a declaration that he had acquired Malaysian citizenship by way of naturalization under Article 19 FC. [59] Article 19 FC provides: - “(1) Subject to Clause (9), the Federal Government may, upon application made by any person of or over the age of twenty-one years who is not a citizen, grant a certificate of naturalization to that person if satisfied— (a) that— S/N DrEGtOIGYUazijzuv5AnRA 21 **Note : Serial number will be used to verify the originality of this document via eFILING portal (i) he has resided in the Federation for the required periods and intends, if the certificate is granted, to do so permanently; (ii) (Repealed); (b) that he is of good character; and (c) that he has an adequate knowledge of the Malay language. (2) Subject to Clause (9), the Federal Government may, in such special circumstances as it thinks fit, upon application made by any person of or over the age of twenty-one years who is not a citizen, grant a certificate of naturalization to that person if satisfied— (a) that he has resided in the Federation for the required periods and intends, if the certificate is granted, to do so permanently; (b) that he is of good character; and (c) that he has an adequate knowledge of the Malay language. (3) The periods of residence in the Federation or the relevant part of it which are required for the grant of a certificate of naturalization are periods which amount in the aggregate to not less than ten years in the twelve years immediately preceding the date of the application for the certificate, and which include the twelve months immediately preceding that date. (4) For the purposes of Clauses (1) and (2) residence before Malaysia Day in the territories comprised in the States of Sabah and Sarawak shall be treated as residence in the Federation; and for the purposes of Clause (2) residence in Singapore before Malaysia Day or with the approval of the Federal Government residence in Singapore after Malaysia Day shall be treated as residence in the Federation. (5) A person to whom a certificate of naturalization is granted shall be a citizen by naturalization from the date on which the certificate is granted. S/N DrEGtOIGYUazijzuv5AnRA 22 **Note : Serial number will be used to verify the originality of this document via eFILING portal (6) (Repealed). (7) (Repealed). (8) (Repealed). (9) No certificate of naturalization shall be granted to any person until he has taken the oath set out in the First Schedule.”. [60] As opposed to citizenship by operation of law, citizenship by naturalization is something that is not of a birthright, it is conferred upon application being made by non-citizens to the authorities. [61] On this, reference is again made to the Federal Court decision in CTEB (supra) where it was held: - “[17] By operation of law, therefore entails a situation where at birth the person's status of citizenship will be so determined. It is a matter of birthright. This legal position is also as stated by Emeritus Professor Datuk Dr. Shad Saleem Faruqi, in his book 'Our Constitution ' (Sweet & Maxwell, Thomson Reuters 2019) at pp. 178 and 179. In practical terms, a birth certificate will be issued right away upon registration of such birth. While the other three categories of citizenship by registration and naturalisation require an application to the authorities upon meeting the necessary conditions imposed under the FC (see Suffian 'An introduction to the Constitution of Malaysia' (3rd edn, Pacifica Publications 2007) at pp. 330-337). [18] The segregation between these two broad classes viz by operation of law and other forms of citizenship (registration and naturalisation) is mainly this: The other categories of citizenship may be acquired through an application to the Federal Government upon the required conditions being fulfilled. Thus, unlike the operation of law citizenship, their qualifications are not S/N DrEGtOIGYUazijzuv5AnRA 23 **Note : Serial number will be used to verify the originality of this document via eFILING portal automatic at birth. They become qualified upon fulfilling the stipulated conditions.”. [62] Further reference can be made to ST (supra) where the High Court held that: - “[20] The main categories for acquiring citizenship are: (i) citizenship by operation of law provided under art. 14(1). Persons born after Malaysia Day who meet any of the qualifications specified in s. 1 of Part II of the Second Schedule are citizens. If any person qualifies, that person is a citizen without volition on his or her part and the Government including the Registrar General has no discretion in the matter; (ii) citizenship by registration provided under arts. 15, 15A, 16 and 16A. Under this category, citizenship is granted to persons who are non-citizens by the Federal Government upon application. The non-citizen must satisfy the stipulated criteria to the satisfaction of the designated Minister. A register of citizens by registration is established and maintained by the Minister under s. 10(1)(a) of Part III of the Second Schedule; and (iii) citizenship by naturalisation is provided under art. 19. Under this category non-citizens acquire citizenship by making an application to the Federal Government. The non-citizen must satisfy the criteria stipulated to the satisfaction of the designated Minister. A register of citizens by naturalisation is established and maintained by the Minister under s. 10(1)(b) of Part III of the Second Schedule. [63] A reading of Article 19 FC thus clearly shows that P would need to apply to the Federal Government of the Federation of Malaysia to acquire citizenship by naturalization. S/N DrEGtOIGYUazijzuv5AnRA 24 **Note : Serial number will be used to verify the originality of this document via eFILING portal [64] In this regard, this Court is in agreement with the submissions by the learned Senior Federal Counsel that whilst it is true that Article 19 FC provides for acquisition of citizenship, the application is to be done to the Federal Government and not to the Court. [65] In construing Article 19 FC as such, reference is made to Bindra’s Interpretation of Statutes, 7th Edition, pages 947-948: - “The Constitution must be considered as a whole, and so as to give effect, as far as possible, to all its provisions. It is an established canon of constitutional construction that no one provision of the Constitution is to be separated from all the others, and considered alone, but that all the provisions bearing upon a particular subject are to be brought into view and to be so interpreted as to effectuate the great purpose of the instrument (Old Wayne etc Association v. McDonough SI L ed 345; Doconers v. Bidwell82 (US) 244:45 L ed 1088; Myers v. United States 272 US 52:71 L ed 60, 180). An elementary rule of construction is, that if possible, effect should be given to every part and every word of a Constitution and that unless there is some clear reason to the contrary, no portion of the fundamental law should be treated as superfluous (Williams v. United States 289 US 553:77 L ed 1372; Marbury v. Madison I Cranch (US) 137:2 L ed 60; Myers v. United States 272 US 52:71 L ed 60; United States v. Buffer 297 U SI: 80 L ed 477).”. [66] Reference is also made to Loh Kooi Choon V Government of Malaysia [1977] 2 MLJ 187 where it was held by the Federal Court (as it was then) that: - “This reasoning, in my view, is based on the premise that the Constitution as the supreme law, unchangeable by ordinary means, is distinct from ordinary law and as such cannot be inconsistent with itself.”. S/N DrEGtOIGYUazijzuv5AnRA 25 **Note : Serial number will be used to verify the originality of this document via eFILING portal [67] Thus, if this court were to accede to P’s alternative prayer, that would be akin to this Court taking over the role of the executive. Such act would also akin to this Court inserting new words into the FC since this Court has no jurisdiction to confer citizenship as far as Article 19 FC is concerned. Reference is again made to CTEB where the Federal Court held that: - “[48] The fundamental rule in interpreting the FC or any written law is to give effect to the intention of the framers. The court cannot insert or interpret new words into the FC. The court may only call in aid other canons of construction where the provisions are imprecise, protean, evocative or can reasonably bear more than one meaning. I find s. 17 is plain and clear in its meaning. The court should not endeavour to achieve any fanciful meaning against the clear letter of the law.”. [68] This Court is mindful that any interference by this Court on the powers vested solely with the Federal Government under Article 19 FC would also violate the separation of powers doctrine. [69] As a matter of illustration, regards may be made to Cornelia Muslie & Anor v Ketua Pengarah Pendaftaran Negara, Malaysia & Ors [2023] 1 CLJ 66. Although that case touched more on the power to register a person as a Malaysian citizen under Article 15A FC, the High Court had indeed underlined the important principle that the courts should not usurp the powers granted to the Federal Government which this Court is in full agreement with. According to the High Court in Cornelia: - “[45] In the final analysis, the plaintiff in the present case had availed himself the remedy in art. 15A FC by applying to the Minister on 27 August 2015. His application was processed by the first defendant and forwarded for the consideration and S/N DrEGtOIGYUazijzuv5AnRA 26 **Note : Serial number will be used to verify the originality of this document via eFILING portal decision by the Minister. Article 15A FC empowers the Federal Government to register a person under the age of 21 years as a citizen in special circumstances as the Federal Government thinks fit. The power to register a person as a Malaysian citizen under art. 15A FC is entrusted solely to the Federal Government. If a declaration of citizenship is granted under art. 15A by this court, it is of the considered view that it would be stepping into the shoes of the Federal Government and would be tantamount to usurpation of the constitutional power entrusted to the Federal Government by our supreme law of the land. The intention of the framers of the FC that the decision to grant or not to grant citizenship under art. 15A FC should be left to the Federal Government is clearly embodied in s. 2, Part III Second Schedule of the FC which provides: A decision of the Federal Government under Part III of this Constitution shall not be subject to appeal or review in any court.”. [70] All in all, since there is an admission by P of his reluctance to apply for a Permanent Resident status, this Court found that it is a clear case of an abuse of court’s process by P in applying for citizenship by naturalization in the instant matter. Conclusion [71] Based on the above reasons, P’s OS was dismissed but with no order as to costs. Dated: 03 rd JUNE 2025 …………………………………………. (NOOR HISHAM BIN ISMAIL) Judge High Court, Johor Bahru S/N DrEGtOIGYUazijzuv5AnRA 27 **Note : Serial number will be used to verify the originality of this document via eFILING portal Parties: Shaik Salem@Shaik Adam bin Shaik Mohd Daud Messrs Shaik Adam & Co. Solicitors for the Plaintiff No. 20-01, Jalan Cenderasari 3, Taman Perbadanan Islam Larkin, Larkin 80350 Johor Bahru, Johor Zahilah binti Mohammad Yusoff Peguam Kanan Persekutuan Johor Solicitors for the Defendants Pejabat Penasihat Undang-Undang Negeri Johor, Aras 2, Bangunan Dato’ Jaafar Muhammad, Kota Iskandar, 79100 Iskandar Puteri, Johor. Cases referred to: 1. CTEB & Anor v Ketua Pengarah Pendaftaran Negara, Malaysia & Ors [2021] 6 CLJ 471; 2. Pendaftar Besar Kelahiran Dan Kematian, Malaysia v Pang Wee See & Anor [2017] 7 CLJ 33; 3. Than Siew Beng & Anor v Ketua Pengarah Jabatan Pendaftaran Negara & Ors [2017] 8 CLJ 16; 4. Siti Aisyah Yusuf v Attorney General & Ors [2023] 10 CLJ 839; 5. Farah Hani Sukor V Ketua Pengarah Jabatan Pendaftaran Negara Malaysia & Ors [2023] 1 LNS 898; 6. Tan Lee Heng & Anor V Ketua Pengarah Jabatan Pendaftaran Negara & Ors [2018] MLRHU 1836; 7. Ong Xin Tong V Pendaftar Besar Kelahiran dan Kematian Malaysia & Anor [2022] 6 CLJ; 8. Lim Jen Hsian & Anor v Ketua Pengarah Jabatan Pendaftaran Negara & Ors [2017] 8 CLJ 412; 9. CCH & Anor v Pendaftar Besar Bagi Kelahiran Dan Kematian Malaysia [2023] 1 MLRA; 10. Teo Hock Guan & Anor v. Johore Builders & Investments Sdn Bhd [1996] 4 CLJ 184; S/N DrEGtOIGYUazijzuv5AnRA 28 **Note : Serial number will be used to verify the originality of this document via eFILING portal 11. ST & Anor v Pendaftar Besar Kelahiran Dan Kematian Malaysia & Ors [2024] 3 CLJ 931; 12. Tan Soo Vin v Registrar General of Births And Deaths, Malaysia (Civil Appeal Court of Appeal W-01(A)-548-10/2020 (unreported) 13. Loh Kooi Choon V Government of Malaysia [1977] 2 MLJ 187; 14. Cornelia Muslie & Anor v Ketua Pengarah Pendaftaran Negara, Malaysia & Ors [2023] 1 CLJ 66; Legislation referred to: 1. S.4 of the National Registration Act 1959; 2. Regulations 4, 11 and 14 National Registration Regulations 1990; 3. s.33(1) of the Births and Deaths Registration Act 1957 [Act 299]; S/N DrEGtOIGYUazijzuv5AnRA 29 **Note : Serial number will be used to verify the originality of this document via eFILING portal