Stateless teen declared a Malaysian

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, said the child was 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.

She said since the child was found abandoned in Hospital Universiti Kebangsaan Malaysia (HUKM), it was presumed that he was born to a mother who is a permanent resident and as such, the child was born within the Federation of Malaysia, and that his mother was presumed to be a permanent resident in the Federation.

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

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

The other judges were Federal Court judges Datuk Nallini Pathmanathan, Datuk Mary Lim Thiam Suan, Datuk Harmindar Singh Dhaliwal and Datuk Rhodzariah Bujang.

The child, 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 Department (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 correct facts of the parents.

However, the boy’s second birth certificate recorded the child’s parents information as “not available” and listed the child’s citizenship status as “yet to be determined”, prompting the child’s adoptive parents to reapply for a new birth certificate.

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

In delivering the court’s decision online, Justice Tengku Maimun said the case was now a precedent on how the Home Ministry, NRD and Registrar-General of Births and Deaths 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 was on the Registrar-General of Births and Deaths 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 of Births and Deaths) 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’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 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, adding that the respondent had not been able to discharge their legal burden with regard to the residence of the child’s mother.

Justice Tengku Maimun said citizenship by operation of law was a fundamental and constitutional right, adding that it left absolutely no room for the exercise of subjective notions or presuppositions on what citizenship is.

A team of lawyers led by Datuk Dr Cyrus Das appeared for the boy and his parents while senior federal counsel Shamsul Bolhassan, Mazlifah Ayob and Liew Horng Bing appeared for the Registrar-General of Births and Deaths. — Bernama

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