Stateless teenager is a Malaysian citizen, Federal Court rules

PUTRAJAYA: The Federal Court has granted Malaysian citizenship to a 17-year-old teenager who was born in a hospital in Kuala Lumpur to an unknown mother and adopted by a Malaysian couple.

Chief Justice Tun Tengku Maimun Tuan Mat, who chaired a five-member bench on Friday (Nov 19), said the youth is entitled to Malaysian citizenship by virtue of his birth within the Federation of Malaysia under Article 14(1)(b), Section 1(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 Constitution.

She said since the boy was found abandoned as a child in Hospital Universiti Kebangsaan Malaysia (HUKM) in Kuala Lumpur, it is presumed that he was born to a mother who is a permanent resident there.

As such, she added, he was born within the Federation of Malaysia and his mother is presumed to be a permanent resident in the Federation.

She granted a declaration that the teenager is a Malaysian citizen and ordered that the Registrar-General of Births and Deaths' (henceforth, Registrar-General) decision in issuing the child's birth certificate by registering him as a non-citizen in 2017 be quashed; and also directed a re-issuance of a new birth certificate to register the youth as a citizen.

Justice Tengku Maimun, who delivered the court's unanimous decision, allowed the appeal brought by the boy and his adoptive parents, reversing the decisions of the Penang High Court and Court of Appeal which did not rule in his favour.

The other four judges who presided with Justice Tengku Maimun were Federal Court judges Datuk Nallini Pathmanathan, Datuk Mary Lim Thiam Suan, Datuk Harmindar Singh Dhaliwal and Datuk Rhodzariah Bujang.

The youth, identified only as CYM to protect his identity, was abandoned by his biological mother in HUKM in 2004 and the couple subsequently adopted him.

When the boy turned 12 in 2016, the National Registration Dept (NRD) declined to issue him an identity card, noting that there were "some inaccuracies" in the boy's name and that of his adoptive parents' children.

His adoptive parents subsequently surrendered the boy's birth certificate to the NRD in order for a new one to include their correct details.

However, the boy's second birth certificate recorded the parents' information as not available and listed his citizenship status as "yet to be determined", prompting the adoptive parents to re-apply for a birth certificate.

Subsequently, in September 2017, the Registrar-General issued the birth certificate but stated that the boy was a non-citizen.

In delivering the court's decision online, Justice Tengku Maimun said this case is now precedent on how the Home Affairs Ministry, NRD and Registrar-General ought to deal with all such future cases within the context of abandoned newborns.

Justice Tengku Maimun said when confronted with an application for registration of such newborns, the burden is on the Registrar-General to undertake proper investigations to determine the status of the child's biological parents or mother.

"If it was found that the abandonment is true, the respondent (Registrar-General) is obligated by the highest law of the land in Section 19B of Part III of the Second Schedule of the Federal Constitution to recognise that newborn child's citizenship by operation of law, except where there is evidence to the contrary," she said.

She said the respondents' contention – that the boy's adoptive parents concealed facts which in turn connotes that they somehow knew the identity of the child's biological parents – was unsupported by evidence.

"Given that the child was born in the said hospital, surely the respondent (Registrar-General) has the means to verify from the hospital's admission records, the identity of the child's biological mother, if not the father,” she said.

She added that the respondent was unable to discharge their legal burden with regard to the residence of the child's mother.

Justice Tengku Maimun said the Home Affairs Ministry, of which the Registrar-General is an integral part, has all the important machinery of the state at its disposal to conduct appropriate investigations to ascertain the truth.

"In the circumstances, rather than denying the child citizenship because they were not able to gather any evidence of the child's birth and biological parents, the respondent ought to have given effect to Section 1 (a) of Part II read together with Section 19B of Part III (of the Second Schedule of the Federal Constitution).

"They had no right or discretion to do anything else, much less render the child stateless,” she said, adding that the word "citizenship" by operation of law could not be any clearer, and there is no room whatsoever for discretion.

She said that citizenship by operation of law is a right, a fundamental and constitutional one, and it leaves absolutely no room for the exercise of subjective notions or presuppositions on what is citizenship.

A team of lawyers led by Datuk Dr Cyrus Das appeared for the teenager and his parents while Senior Federal Counsels Shamsul Bolhassan, Mazlifah Ayob and Liew Horng Bing appeared for the Registrar-General. – Bernama

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