Adoption order does not confer citizenship, High Court rules

Couple loses bid to have adopted son declared a citizen by operation of law.

PETALING JAYA: A court has held that an adoption order issued by a lower court concerning a man almost 10 years ago did not confer on him a right to citizenship.

Lau Jhun Guan, 22, and his adoptive parents had applied to the Johor Bahru High Court for a declaration that he was a Malaysian citizen by operation of law.

He also sought a court order compelling the government to issue a birth certificate and an identity card reflecting his status as a citizen.

Dismissing the application, judicial commissioner Shamsulbahri Ibrahim said that while an adoption order conferred the adoptive parents certain rights and obligations over a child, its “operability and interpretation should not be stretched to supplement the provisions of the (Federal Constitution) in matters relating to citizenship”.

“There is no mention made of the rights of citizenship in the Adoption Act and no corresponding provision in the (constitution) that deems adoption confers the right to citizenship,” Shamsulbahri said in an 18-page written judgment issued on March 11.

He said that under the second schedule to the constitution, a person must not only be born in Malaysia but that at least one of his parents “at the time of (his) birth” must have been a Malaysian citizen or a permanent resident.

“Upon careful perusal of the cause papers in this present action, there was a serious doubt about (Jhun Guan’s) place of birth,” he said.

There is also no cogent evidence that his biological parents were Malaysian citizens at the time of his birth, he said.

Shamsulbahri noted that some important particulars in Jhun Guan’s original birth certificate were “either false or doubtful”.

He said the first applicant, Jhun Guan’s adoptive father, Lau Tek Peng, had admitted to giving incorrect information about Jhun Guan’s biological parentage in his original birth certificate.

He noted that in 2012, Jhun Guan and his parents went twice to the national registration department (JPN) to apply for an identity card.

Both applications were rejected due to “doubts” about whether Tek Peng and his wife, Sing Wei Joo, were the child’s biological parents.

A subsequent investigation by JPN at the time uncovered that Jhun Guan was not the biological son of Tek Peng and his wife as claimed at the time his original birth certificate was applied for.

“Instead, (Tek Peng) admitted that he took (Jhun Guan) from a woman who happened to work at the same workplace with him,” said Shamsulbahri.

There was no detailed information about the woman except that Tek Peng said she hailed from Sarawak, he said.

Jhun Guan’s parents then applied to the sessions court for an adoption order, which was issued on May 20, 2013.

Based on that adoption order, Jhun Guan was issued with a birth certificate in November of the same year which identified him as a non-citizen.

Shamsulbahri also rejected the contention that Jhun Guan was an abandoned child and was, therefore, entitled to citizenship by operation of law pursuant to Section 19B of Part III of the second schedule to the constitution.

The judicial commissioner said that before a child can be considered “abandoned”, the discovery must first be reported in accordance with Section 9 of the Registration of Birth and Death Act 1957.

“Secondly, any person who wants to take an abandoned child into his custody must notify the protector of the child as required by Section 35 of the Child Act 2001,” he said.

However, he said, all important particulars relating to Jhun Guan’s birth were “either false or doubtful”.

“It is trite that the introduction of Section 19B of Part III of the Second Schedule to the Federal Constitution is to grant citizenship by operation of law to a newborn child found exposed within Malaysia,” he said.

Nevertheless, he said, the court bore the responsibility of preventing this avenue to citizenship from being abused.

Given the rise in human trafficking cases, the court must exercise “great caution” and apply the provision only in “clear cut and genuine cases”, he said.

“I sympathise with (Jhun Guan) as this is not his fault. The door to be a Malaysian citizen is not yet closed (to) him. He may acquire citizenship by naturalisation under Article 19 of the Federal Constitution,” he said.