The principles of jus soli and jus sanguinis are usually applied to determine the citizenship of a person. Jus soli, which means ‘right of the soil’, explains that the citizenship is determined by the birth place of a person. Jus sanguinis, which means, ‘right of blood’ is a principle whereby the citizenship follows one or both parents who are citizens of the state.
On reading Part III of the Malaysian Federal Constitution, the provision states that every person is a Malaysian citizen by operation of law if they were:
- born on or after Malaysia Day; and
- one of the person’s parents are either a citizen or permanent resident at the time of the birth
The issue of citizenship in child adoption matters have been a grey area due to the lack of legislation providing for the citizenship status of an adopted child. In Malaysia, the citizenship status of a child generally follows the citizenship of the biological mother. In cases where the child is born out of wedlock and the biological mother is not a citizen of Malaysia, the child will automatically be rendered stateless.
Section 9 of the Adoption Act 1952 (“the Act”) provides that all rights, duties, obligations and liabilities are to be vested upon the adoptive parents once an adoption order is issued. Section 25 of the Act also provides that a birth certificate of an adopted child shall not have the word ‘adopted’. However, the Act remains silent as to the citizenship status of that child.
In the Court of Appeal case of Pendaftar Besar Kelahiran dan Kematian v. Pang Wee See & Anor, the Registrar-General of Births and Deaths appealed against the decision of the High Court who decided that an adoption order had the effect of granting citizenship to an adopted child whose biological parents could not be traced. The Court of Appeal allowed the appeal and held that an adoption order does not confer Malaysian citizenship to an adopted child although one of his adoptive parents is a Malaysian citizen. To be a Malaysian citizen by operation of law, the Court relied on the provision of the Federal Constitution that the person must be born in Malaysia and also asserted that one of the biological parents must be either a Malaysian citizen or a permanent resident at the time of the child’s birth. Since information of the biological parents of the adopted child was not available in this case, the child was not granted Malaysian citizenship.
In the case of Foo Toon Aik v Ketua Pendaftar Kelahiran & Kematian, Malaysia, the child’s birth mother was a Thai citizen who had an unregistered marriage with the birth father in Thailand. The original birth certificate of the child listed him to be a ‘non-citizen’ to follow the citizenship of the birth mother. The relationship between the birth parents broke down and the Child’s mother returned to Thailand and relinquished her parental rights to the birth father. The birth father applied for an adoption order to acquire guardianship rights over the child and when the new birth certificate was issued, the child was still listed as a ‘non-citizen’. The birth father applied for a judicial review to quash the decision of the National Registration Department of Malaysia. However, it was held that due to the unregistered marriage of the birth parents, the child cannot qualify as a Malaysian citizen by operation of law and may only acquire citizenship of his birth mother.
It can be summarised that a child will be rendered stateless when the information of the biological parents is not available and if a child was born out of wedlock to a non-citizen birth mother. Currently, a stateless child who seeks Malaysian citizenship would need to make an application under Article 15A of the Federal Constitution for consideration by the Home Ministry.
Be that as it may, the Federal Court will be hearing the appeals of three cases involving the citizenship of stateless children. The outcome of these Federal Court cases would bring a significant impact on the citizenship status of adopted children in Malaysia.
This article was written by Aileen Lau (Partner) and Natalie Ng (Intern). Aileen heads the family law practice at Donovan & Ho. She has extensive experience in both contested and uncontested divorce proceedings, and has advised clients on family law matters ranging from child custody, adoption, payment of alimonies and division of matrimonial property.