Monday, December 6, 2021

Apex court declares stateless child a citizen in rebuke to home ministry

It says the child, now 17, is entitled to citizenship by operation of law.

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The apex court today ruled that a child born in Kuala Lumpur and adopted by a Malaysian couple in Penang in no longer stateless but considered a citizen by operation of law, in a landmark judgment to be taken as precedent on how the government should deal with all such cases in the future.

A five-man panel led by Chief Justice Tengku Maimun Tuan Mat said in a unanimous decision that the boy, now 17 and identified only as CYM to protect his identity, is a citizen of Malaysia by virtue of his birth within the federation of Malaysia, pursuant to Article 14(1)(b), Section (1) Paragraph (a) of Part II of the Second Schedule of the Federal Constitution, read together with Section 19B of Part III of the Second Schedule of the Federal Constitution.

“Since the child was found abandoned in the location aforementioned, it is presumed that he was born to a mother permanently resident there,” Tengku Maimun said in the summary judgment.

“It follows that he is taken to fulfil the requirements of Section 1(a) of Part II read with Section 19B of Part III as he, having been born at Hospital Universiti Kebangsaan Malaysia, was born within the federation and his mother is presumed to be permanently resident in the federation.

“In the premises, it is our judgment that the child is quite simply entitled to citizenship by operation of law by virtue of Section 1(a) of Part II read with Section 19B of Part III.”

CYM was abandoned at birth and later adopted by the couple who, according to the facts of the case, were under the impression that they had formally adopted him.

A birth certificate was issued on Feb 20, 2004 but in April 2016, when CYM turned 12, the National Registration Department (JPN) declined to issue him a MyKad.

The officer who inspected the birth certificate was said to have noted differences in the surnames of CYM and his sister TYS, whom the couple had earlier adopted as well.

The couple surrendered the birth certificate and were issued a new one stating the amended details on Nov 3, 2016. However, the second birth certificate recorded the parents’ information as “not available” and the child’s citizenship status as “yet to be determined”.

The couple then filed an originating summons at the High Court in Penang and were granted an adoption order on July 20, 2017. They subsequently applied for a new birth certificate and were issued a third one on Sept 21, 2017 stating the child’s citizenship status as “non-citizen”.

Their initial arguments in court were rejected by the High Court and Court of Appeal, who followed earlier precedents holding that Section 1(a) must be construed with regard to the words “at the time of birth”.

The courts also held that the word “parents” means biological parents and could not be stretched to mean “adoptive parents”.

The couple then appealed to the Federal Court which ruled among others that there was nothing to suggest that they were lying about the fact of abandonment.

It also set aside the previous judgments by the High Court and Court of Appeal, saying they should not be relied on as precedent in the future.

It said that the case would now be precedent on how the home ministry, JPN and Registrar-General of Births and Deaths deal with all such future cases within the context of abandoned newborn children.

“The home ministry, of which the respondent (Registrar-General of Births and Deaths) is an integral part, has all the important machinery of the state at its disposal to conduct appropriate investigations to ascertain the truth.

“The respondent has not discharged its legal burden to rebut the presumption of permanent residence of the child’s mother in Section 19B. Further, the respondent did not directly address or respond to any of the positive averments made by the appellants regarding how the child was found abandoned, thus leaving those averments admitted,” it said.

Instead of denying the child citizenship because it was unable to gather any evidence of his biological parents, it said, the respondent should have given effect to Section 1(a) of Part II read together with Section 19B of Part III.

“They had no right or discretion to do anything else certainly much less render the child stateless,” it added.

“In this regard and with respect, we are minded to observe that citizenship by operation of law is a right – a fundamental and constitutional right. It leaves absolutely no room for the exercise of subjective notions or presuppositions on what citizenship is.

“The words citizenship ‘by operation of law’ could not be any clearer, and there is no room whatsoever for discretion.”

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