In Malaysia, the citizenship of a person is determined by the principles of jus soli and jus sanguinis. Jus soli, which is Latin for “right of the soil”, indicates that citizenship is determined by the birthplace of a person. Jus sanguinis, which means “right of blood”, is a principle whereby citizenship follows one or both parents who are citizens of the state.
With regards to the law governing adoption, there exists two parallel systems in Malaysia, one governing the adoption of Muslim children and the other of non-Muslim children. The adoption of non-Muslim children is governed by the Adoption Act 1952 while the adoption of Muslim children is governed by the Registration of Adoptions Act 1952 and Syariah laws.
However, the Adoption Act 1952 does not address the citizenship of adopted children. The Act is not competent as a legal instrument to confer citizenship by operation of law on an adopted child under Article 14(1)(b) read with section (1) (a), Part II, Schedule of Federal Constitution. As a result, the nationality of adopted children in Malaysia is determined by the National Registration Department (NRD) in the exercise of its administrative function of registering orders granted by the Malaysian courts.
The issue of citizenship in child adoption is a grey area due to the lack of legislation providing for it. In Malaysia, the citizenship status of a child generally follows the citizenship of the biological mother. In cases where the child is born out of wedlock and the biological mother is not a citizen of
Malaysia, the child will automatically be rendered stateless. A close reading of Section 9 of the Adoption Act 1952 provides that all rights, duties, obligations and liabilities are to be vested upon the adoptive parents once an adoption order is issued. Section 25 of the Act also provides that a birth certificate of an adopted child shall not bear the word “adopted”. However, the Act remains silent on the citizenship status of that child.
A point to be stressed here is that an adoption order does not confer Malaysian citizenship on an adopted child although one of his/her adoptive parents is a Malaysian citizen. To be a Malaysian citizen by operation of law, the Court relies on the provision of the Federal Constitution that the person must be born in Malaysia and also asserts that one of the parents must be either a Malaysian citizen or a permanent resident at the time of the child’s birth. In the event information on the biological parents is not available and if the child is born out of wedlock and the biological mother is not a citizen of Malaysia, Malaysian citizenship will not be granted and the child will be stateless.
The court on many occasions has refused citizenship to adopted children. This has left the aggrieved parents to subsequently apply to the Home Minister for citizenship for their adopted child, as his decisions are discretionary and beyond judicial review. Thus a stateless child who seeks Malaysian citizenship would need to make an application under Article 15A of the Federal Constitution for consideration by the Home Minister. In essence, Article 15A is a powerful provision as it allows minors to obtain citizenship at the discretion of the Home Minister. While debates may continue about the procedures of the application, in the end it relies on the interpretation of “special circumstances” viewed by the minister.
Thus, it is very important that parents should follow the proper procedures when registering their children’s births or adopting a child to avoid the issue of statelessness. One of the reasons adopted children can be deemed stateless is because their birth certificates are not properly registered. In some cases, it was found that the adoptive parents were wrongly registered as the biological parents. The consequence would be suffered by the adopted children: due to the incorrect registration of birth, their future could be lost in limbo as they would be regarded as stateless children. One must remember that in Malaysia, citizenship is a privilege not a right.
DR NOR HAFIZAH MOHD BADROL AFANDI
Civil Law Department, International Islamic University Malaysia
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