Tan Kar Chai & Anor v Pendaftar Besar Kelahiran Dan Kematian, Malaysia & Ors

Appellant(s):

• Tan Kar Chai
• Tan Lai Ho

Respondent(s):

• Pendaftar Besar Kelahiran Dan Kematian Jabatan Pendaftaran Negara Malaysia
• Kementerian Dalam Negeri, Malaysia
• Kerajaan Malaysia

• YA Datuk Azhahari Kamal bin Ramli
• YA Dato' Faizah Binti Jamaludin
• YA Datuk Hayatul Akmal binti Abdul Aziz

• The second appellant was initially registered as a Malaysian citizen based on false information provided by a woman claiming to be the biological mother; however, a subsequent investigation revealed the child had been handed over by an unidentified woman believed to be Indonesian.
• Following the discovery of the false registration, the second appellant’s citizenship status was amended to "undetermined," leading the first appellant to legally adopt the child and apply for citizenship under Article 15A, which was rejected without reasons.
• The appellants filed a judicial review seeking declarations of citizenship by operation of law or via the first appellant's adoption order, but the application was dismissed by the High Court.

• Whether the second appellant qualifies for citizenship by operation of law under Section 1(e) of Part II of the Second Schedule, and whether the burden of proving the child was "not born a citizen of any country" was discharged.
• Whether the term "parent" in Section 1(a) of Part II of the Second Schedule includes adoptive parents, and whether the Adoption Act 1952 can be interpreted to confer citizenship status upon an adopted child.
• Whether the second appellant could rely on the presumption of abandonment under Section 19B of Part III of the Second Schedule to establish citizenship by operation of law.

• The Court dismissed the appeal, holding that Section 1(e) requires satisfaction of both *jus soli* and *jus sanguinis*; as the biological parents' identities were unknown, the appellants failed to prove the child did not acquire foreign citizenship by lineage at birth.
• The Court affirmed that "parent" in the Federal Constitution refers strictly to biological parents, and the Adoption Act 1952, as subsidiary legislation, cannot override constitutional requirements or retrospectively qualify a person for citizenship by operation of law.
• The Court ruled that the presumption of abandonment under Section 19B did not apply because the child was handed over to a third party rather than being "found exposed," and further held that the rejection of an Article 15A application is non-justiciable due to the constitutional ouster clause.