PUTRAJAYA: The Federal Court today said the government and home ministry had no right to deny any child’s bid to obtain citizenship once they fulfilled all legal requirements.
Chief Justice Tengku Maimun Tuan Mat, in her judgment over a teenager’s bid to obtain citizenship, said the government ought to give effect to the provisions in the Federal Constitution related to citizenship application.
“They have no right to do anything else, and certainly not to render the child stateless.
“In this regard, we are minded to observe that citizenship by operation of law is a right — a fundamental and constitutional one.
“It leaves absolutely no room for the exercise of subjective notions or presuppositions on what is citizenship,” she said in allowing the boy’s citizenship application.
In this case, the 17-year-old was abandoned as a baby by his biological mother at Hospital Universiti Kebangsaan Malaysia (HUKM) in January 2004.
A couple subsequently adopted the boy and named him “CYM”. The couple provided all the information to the National Registration Department (JPN) in order for the department to issue a birth certificate to the boy.
However, when the teenager turned 12 in 2016, JPN refused to issue an identity card for him, stating that there were “some inaccuracies” in the boy’s name and that of his adopted sister.
Due to these “inaccuracies”, the couple then surrendered the boy’s birth certificate to JPN, and a second birth certificate was issued to him.
In the second birth certificate, JPN recorded that his parents’ information was “not available” and his citizenship status had “yet to be determined”.
The couple had in 2017 formalised the boy’s adoption process in the Penang High Court and reapplied for a new birth certificate.
However, in the third birth certificate, JPN recorded the teenager’s citizenship status as “non-citizen”, effectively rendering the boy a stateless child.
Tengku Maimun said there was no dispute that the boy was abandoned after he was born at HUKM.
“This fact was acknowledged in the Penang High Court adoption order and in his third birth certificate.
“However, the senior federal counsel for the ministry argued that the adopted parents had actively concealed the fact that the identity of the biological parents is known or discoverable but was kept hidden.
“There is nothing in the evidence, as far as we have examined it, to suggest that the adopted parents were lying about the fact of abandonment,” she added.
Tengku Maimun said under Section 19B of the Second Schedule in the Federal Constitution, the burden of proof lies with the government to show that the child’s birth mother was not a permanent resident here.
“Surely the home ministry has all the machinery to verify from the hospital’s admission records the identity of the child’s biological mother, if not the father.
“Therefore, as the record stands, the respondent has not been able to discharge that burden of proof,” she said.
Tengku Maimun said in dealing with similar cases in the future, the government needed to take notice of today’s ruling.
“When confronted with an application for registration of such newborn children, the burden is on the government to undertake proper investigations to determine the status of the child’s biological parents or mother.
“If, after investigation, it is found that the fact of abandonment is true, they are obligated by the highest law of the land to recognise his or her citizenship application by operation of law,” she added.
Aside from Tengku Maimun, the five-member Federal Court bench who heard the teenager’s case comprised Nallini Pathmanathan, Mary Lim, Harmindar Singh Dhaliwal and Rhodzariah Bujang.
The teenager was represented by lawyers Cyrus Das, Raymond Mah, Eric Toh and Jasmine Wong while senior federal counsel Shamsul Bolhassan, Liew Horng Bing and Mazlifah Ayob appeared for the government.