PUTRAJAYA: Thousands of parents will now look forward to a Federal Court ruling on whether their stateless children can obtain Malaysian citizenship through a court order.
This follows today’s decision by a three-man bench led by Hasan Lah to allow leave applications by three sets of parents who wanted their appeals to be heard on the position of stateless children.
The fundamental question before the apex court is whether the blood or lineage is a requirement under the Federal Constitution in determining the citizenship of a child.
In all the three cases, the Court of Appeal rejected citizenship applications simply because the mother was a foreigner even though the children were born in Malaysia.
Justice Hasan, who allowed the merit of the case to be heard, said this issue must be settled “once and for all due to conflicting decisions from the lower courts”.
A Court of Appeal bench had ordered the government to issue citizenship to a child who was born to a Malaysian father and mother from Papua New Guinea.
However, the government is appealing against that decision.
In another case filed this year, the High Court in Shah Alam had referred the matter straight to the Federal Court as constitutional issues were involved.
In this case, the biological parents were unknown but the child was adopted by Malaysian citizens.
The National Registration Department (NRD) refused to grant citizenship as the birth certificate stated the child was not Malaysian (bukan warganegara).
In today’s applications, the Court of Appeal on March 16 dismissed separate bids for citizenship by two boys born in Malaysia, after ruling that they failed to prove they were stateless or were not citizens of other countries.
In the case of Malaysian Lim Jen Hsian’s six-year-old son, the court ruled the child could not be granted citizenship despite being born in Malaysia.
“There is no dispute that documentary evidence confirms the second appellant (Lim Zu Yi) was born after Malaysia Day in the federation on Oct 6, 2010 at Hospital Tung Shin.
“However, the issue is also whether or not he has satisfied the requirement that he is not born a citizen of any other country under Article 14(1)(b) of the Federal Constitution,” Court of Appeal judge Badariah Sahamid said when reading out the brief grounds of judgment.
The child was born to Lim and a Thai mother, who were both not legally married at the time of his birth.
The judge said the resulting illegitimacy of Lim’s child meant that he would not be considered stateless, as he would take on Thai citizenship based on his biological mother’s origin.
In the case of Than Siew Beng’s adopted son, Alexander Than Keng Mun, who was born in an Ampang clinic 19 years ago, the court found that it was not possible to determine the teenager’s lineage as there was no information in the birth certificate regarding his biological parents.
The court said that this meant both Than and his adoptive son had not shown that the latter was not a citizen of any other country.
The third case is similar to the one filed in the High Court in Shah Alam and referred to the Federal Court.
The Federal Court today allowed the application by lawyer Cyrus Das, who represented the child and the father, that the media and other interest groups withheld their identities.
Lawyer Annou Xavier, who held a watching brief for the Malaysian Bar and Human Rights Commission, said Malaysia had ratified the Convention of the Rights of the Child in 1995.
“This shows Malaysia and other nations that agreed to abide by the agreement are serious in looking into the best interest of the child so as not to render any minor as stateless,” he told reporters outside the court.
He said the NRD did not recognise the child as Malaysian because Section 17, Part 3 of the constitution stated that the minor’s citizenship followed the mother of an illegitimate child.
Das said the approval for leave to appeal today would allow the aggrieved parties to claim their constitutional right.
“A child born in Malaysia and adopted by Malaysian couples would, under the constitution, be entitled to be classified as citizen under operation of law,” said Das, who is also a former Bar Council president.
He said Section 25 (a) of the Adoption Act 2001 stated that particulars in the birth certificate should be conclusive evidence that a child is a Malaysian.
Lawyer N Surendran, who appeared with counsel Gopal Sri Ram, said the applicants had to seek legal redress because the executive arm of the government refused to give due recognition to the children.
“Any ruling now by the Federal Court will have an impact on stateless children,” said the lawyer, who is also Padang Serai MP.
He said the government had no statistics but the numbers could run into thousands.
Surendran said he raised the issue of the stateless children not being given recognition in the last Dewan Rakyat sitting but Deputy Home Minister Nur Jazlan Mohamed cited the Court of Appeal ruling made on March 16.
“What we need is a change of policy by the Home Ministry. Application for citizenship should be approved for deserving cases,” he said.
He said the child should not be made a victim and denied registration as citizen due to poor documentation.