Every other month we read of abandoned children, or those whose parents neglected to register their birth, in a quagmire when the time comes to attend school. Instead of tying their hands up in red tape, the authorities should use the discretionary power in Article 15A of the Federal Constitution to grant these children citizenship, reports SHAILA KOSHY.
IF this were a fairytale involving a foundling, the child is assured of a happy ending. But this is the real world; where laws and bureaucracy rule, where you can’t go to school if you don’t have a birth certificate and can’t take any public examinations if you don’t have an identity card.
The right to education in a government school in Malaysia is only accorded to children who are citizens.
While there are some principals who bend the rules and allow these children to attend school, they are still prohibited from taking the UPSR, forget the PMR, SPM or STPM, says Shelter Home executive director James Nayagam.
But education is the right of every child; it is the foundation on which a child’s future is underpinned.
Take away that opportunity and we prejudice the child’s chance of discovering her full potential and pursuing her ambitions.
What is a child supposed to do when everyone she knows is in school, except herself? How do you make a child of six understand it is not her fault?
For all its shortcomings, the education system, does give young children and teenagers some sense of security and belonging, as it tries to impart knowledge and good values.
But a child who is not in school is automatically cut off from all school societies, youth organisations and uniformed groups that source members from schools.
That child is definitely not going to get a call-up to the National Service and be exposed to its schemes to foster patriotism.
We could wash our hands like Pontius Pilate but we would still be guilty of damning such children to an early life on the street, the precursor to a life of prostitution for girls and crime for boys, and a huge social problem for Malaysia.
The lack of citizenship status is also an impediment in relation to a foundling’s prospects for employment as non-citizens are required to have valid employment permits to work here,” says Vivien Chen.
“A stateless foundling who aspires to be a judge, lawyer, architect or engineer would have little chance of her dream being realised without the requisite citizenship”, said the Universiti Malaya law lecturer.
Also, such a child will not have the right to vote in a general election or to travel overseas and return.
This is an appalling state of affairs for innocent children who did not ask to be born, abandoned or declared stateless.
A survey by the Malaysian Indian Welfare Club (Sri-Surthi) five years ago revealed there were 5,000 Indians, especially children, without birth certificates in the country.
Negri Sembilan MIC chief Datuk T. Rajagopalu, then club legal adviser, had said in a news report on March 1, 1999, that the majority of these children were aged between two and 18 and were unable to get a formal education at government schools.
There are also mothers who discover their children do not have birth certificates, only after they have left their abusive husbands.
Then there is the very different category of children who have one or both parents who are illegal immigrants and who do not know where they were born.
On Aug 1, 2002, Universiti Malaysia Sabah Head of Ethnography Research and Development Unit Prof Dr Azizah Kassim was reported in The Star as saying 28% of illegal immigrants in the state were children below the age of 14, that many of these children had no documents and were not in school.
Two years down the road and there is no further news of what the state government there intends to do, following the statement by the then chief minister that it was studying the position of stateless children.
In a 1998 Unicef report The Progress of Nations, Justice Unity Dow of Botswana, underscored the importance of registration of birth:
“A birth certificate may just be a simple piece of paper but that piece of paper is crucial.
“Registration of birth is the State’s first acknowledgement of a child's existence. It represents recognition of a child’s significance to the country and of his or her status under the law. This ticket to citizenship opens the door to the fulfilment of rights and to the privileges and services that a nation offers its people”.
And yet, there are so many children of all races here without that document.
Under the Malaysian constitution, citizenship may be acquired by operation of law, registration or naturalisation.
The first is acquired automatically as the Federal Constitution provides for acquisition of citizenship by birth within Malaysia, says Chen.
“In general, as long as one of the child’s parents is a citizen or a permanent resident, a child born in Malaysia can acquire citizenship.
“If the child is born overseas, the father must be a citizen and must either have been born here or, at the time of the child's birth, have been in the service of the Federation or of a state. Alternatively, the birth must be registered”.
What happens to children with no record or proof of place of birth or parentage?
Under the constitution, Chen says that a newborn is presumed to have a mother who is a permanent resident here, until otherwise proven.
But in the absence of a definition for “newborn”, abandoned toddlers lose out unless the authorities can trace details of their birth or parentage. Such children would be “stateless” even if they have lived here all their life, she adds.
“It is not easy to trace a child's roots”, says Nayagam.
“An application for a birth certificate can take seven to nine years; we need to find witnesses to the birth, like the midwife if it was a home birth.
“Even if we did, the child could have been born in a squatter settlement that has since been demolished and the original residents scattered.
“Living in Malaysia without any identification documents is to open oneself to exploitation by unscrupulous people”.
The option of naturalisation is available to a foundling when he or she reaches 21 year, but it is in the crucial growing years where the benefits of citizenship is needed.
Chen points out the possibility of granting citizenship to these children using the provision for the registration of specified categories of people under Article 15.
“In general, these persons are wives and children of citizens and persons born in the Federation before Merdeka Day.
She says that Article 15A, which provides for a special power to register children, makes no reference to the requirement for birth within Malaysia or citizenship of parents.
Article 15A merely states: Subject to Article 18, the Federal Government may, in such special circumstances as it thinks fit, cause any person under the age of 21 years to be registered as a citizen.
Chen argued that a foundling satisfied the requirements of “special circumstances” for the discretionary power to grant citizenship to be exercised.
She adds that when he was asked what “special circumstances” meant, during the second reading of the Constitution (Amendment) Bill, then Prime Minister Tun Abdul Razak had given the example of “a child that probably has no parents here, or who obviously has attachment to this country”.
In a paper on the citizenship laws of Malaysia in 1978, former High Court judge and currently adjunct professor at Universiti Malaya Datuk Visu Sinnadurai had noted that the government had complete discretion on the use of Article 15A.
Asked whether the government could invoke Article 15A for these children, he said: “It has the discretion and it should certainly look into using Article 15A”.
A child's parents may chose to deprive themselves of a relationship with their own blood or ignore their obligation to register the birth; that's no reason for the government and society to deprive that child of a chance of a good life.
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