CCH & ANOR v. PENDAFTAR BESAR BAGI KELAHIRAN DAN KEMATIAN, MALAYSIA
FEDERAL COURT, PUTRAJAYA
TENGKU MAIMUN TUAN MAT CJ
NALLINI PATHMANATHAN FCJ
MARY LIM FCJ
HARMINDAR SINGH DHALIWAL FCJ
RHODZARIAH BUJANG FCJ
[CIVIL APPEAL NO: 01(f)-35-11-2020(W)]
19 NOVEMBER 2021
[2021] CLJ JT (16)

Abstract:
Fundamental rights and provisions must be construed as broadly as possible while provisions which limit those rights must be construed as narrowly as possible. The broadest possible interpretation of the word 'found exposed' in s. 19B of Part III of the Second Schedule of the Federal Constitution ('FC') is to accord it a meaning to include a child abandoned at the place of birth by the birth mother whose identity is unknown. The word 'exposed' must encompass the plight of abandoned new born children. Once it is shown that a new born child is 'found exposed', or abandoned, (i) the child is presumed to have been born to a mother who was permanently resident at the place where the finding was made; and (ii) the date of the finding is taken as the date of the birth. Therefore, a child born at a hospital in Malaysia and later abandoned by his/her birth mother is presumed to be born to a mother permanently resident in the Federation. The child then fulfils the requirement of s. 1(a) of Part II read together with s. 19B of Part III of the Second Schedule of the FC, and is therefore entitled to citizenship by operation of law.

CONSTITUTIONAL LAW: Citizenship – Citizenship by operation of law – Malaysian citizen couple adopted abandoned child – Child born in hospital in Malaysia – Identity of birth mother unknown – Birth certificate stated child as non-citizen – Whether child born in Federation – Whether born of at least either one parent who was citizen or of parent permanently resident in Federation – Whether child entitled to citizenship by operation of law by virtue of s. 1(a) of Part II read together with s. 19B of Part III of Second Schedule of Federal Constitution – Concept of jus soli and jus sanguinis

WORDS AND PHRASES: 'any newborn child found exposed in any place' – Section 19B of Part III of Second Schedule of Federal Constitution – Child born in hospital in Malaysia – Identity of birth mother unknown – Birth certificate stated child as non-citizen – Whether child born in Federation – Whether words 'found exposed' include child abandoned at place of birth by birth mother whose identity is unknown – Whether child born to mother permanently resident at place where finding was made – Whether birth mother presumed to be Malaysian – Whether child entitled to citizenship by operation of law by virtue of s. 1(a) of Part II read together with s. 19B of Part III of Second Schedule of Federal Constitution