KUALA LUMPUR: Does the law allow for a legally adopted illegitimate child to be legitimised and granted citizenship?

That is the question a High Court judge wants answered, in directing counsel to do more research before she decides on an application by the government to strike out a suit filed by an adopted minor seeking citizenship.

This issue is the central question in the case of six-year-old boy adopted by a Malaysian father, who is seeking a declaration that the child is a citizen of Malaysia by virtue of the adoption order obtained from the George Town Sessions Court in September 2008.

The minor, suing through his adoptive father, also wants to be declared a Malaysian by virtue of Article 14(1) or 15A of the Federal Constitution. The suit was filed against the director-general of the National Registration Department (NRD), chief secretary of the Home Ministry and the Malaysian government.

Government counsel Maisarah Juhari, who is applying for the suit to be struck out, submitted that an illegitimate child could not be granted citizenship. The minor’s lawyer Annou Xavier, however, argued that under the Adoption Act 1952, an illegitimate child will be legitimised as if the child is born to his natural parents.

High Court judge Datuk Asmabi Mohamad, who was to have delivered her decision on the striking out of the application on Wednesday, reserved judgment and ordered both parties to do more research on the case, especially with regard to the provisions in the Adoption Act.

The minor was born on May 19, 2008 to a Malaysian father and an Indonesian mother. Four months later, he was lawfully adopted by a lawyer. Based on the legal adoption order, the adoptive father applied for a new birth certificate from the NRD, which issued a new birth certificate for the minor but only gave him permanent resident status. In October 2008, the adoptive father applied to the Penang NRD to register the son as a Malaysian citizen. Two years later, the Home Ministry responded, saying the application was unsuccessful, without stating any reasons. The adoptive father then applied for a second time and was again rejected in January last year, again, without any reasons given.

The defendants also argued that the plaintiff’s application was premature as he must first appeal to the home minister.

However, Xavier’s argument is centred on the fact that once a child is lawfully adopted under an Adoption Order, then Section 9 of the Adoption Act 1952 will operate as if the “… adopted child was a child born to the adopter in lawful wedlock.” The lawyer said this meant that once a child was adopted under Malaysian adoption laws, the status of the child becomes as if the child was born under a lawful marriage.

Asmabi fixed Jan 23 for decision on the striking out of the application. — The Malaysian Insider

This article first appeared in The Edge Financial Daily, on December 12, 2014.