PUTRAJAYA, Sept 11 — Three Malaysia-born children were today allowed to pursue their final bid to be recognised as citizens instead of continuing their lives as stateless persons.
The Federal Court granted leave for the three boys to proceed with their appeal against the Court of Appeal’s previous rulings to uphold the government’s decisions to deny them citizenship.
Justice Tan Sri Hasan Lah, who led the Federal Court panel today, had earlier noted that there was a Court of Appeal ruling which was different from the decision in the three cases today.
“Because there are conflicting decisions in the lower court on this issue, settle it once and for all,” he said during the hearing for leave to appeal.
The government, which was represented today by senior federal counsels Shamsul Bolhassan and Maisarah Juhari, subsequently said it did not object to the trio’s leave application.
The other two Federal Court judges on the panel today are Tan Sri Zainun Ali and Tan Sri Abu Samah Nordin.
Seven legal questions
For the first case involving a teenager who was born in Malaysia to unknown biological parents and adopted by Malaysians, one of his lawyers — Datuk Cyrus Das — informed the judges that both government lawyers “have graciously agreed that leave be granted” for all seven legal questions in their case to be decided by the Federal Court.
Raymond Mah also represented the teenage child in the first case that was filed in court against the Registrar-General of Births and Deaths in 2015. The Federal Court today granted a request by Cyrus for the boy’s name and his adoptive parents’ name to not be published in news reports or elsewhere.
Cyrus later explained to reporters that his client’s lawsuit amounted to a “claim” for the child’s constitutional rights.
”A child born in Malaysia, adopted by a Malaysian couple who are themselves Malaysian citizens would under the Second Schedule of the Federal Constitution be entitled to be classified as a citizen by operation of law,” Cyrus said, further noting that the Adoption Act’s Section 25A had stated that the particulars in the new birth certificate — such as the adoptive parents being named as the child’s parents — shall be conclusive evidence of the adopted child’s status.
The High Court had last March decided that the government should grant citizenship to the adopted child whose biological parents are untraceable, but the Court of Appeal had this April 6 reversed the decision.
One legal question for two boys
As for the two other cases which were represented by lawyers Datuk Seri Gopal Sri Ram, Latheefa Koya and N. Surendran, the Federal Court granted the leave application for appeal along with the same legal question.
The single legal question that was posed is “whether the principle of jus sanguinis or reference to blood or lineage is a requirement under Section 1(e) of Part II, Second Schedule of the Federal Constitution”.
In other words, it revolves around whether jus sanguinis — the legal principle where citizenship is reliant on lineage and determined by the parents’ citizenship — should be used to determine citizenship status for a person who is born in Malaysia and not born a citizen of any country.
When met later, Surendran told reporters that the single legal question overlaps with the questions in Cyrus’s case, saying: “That is the central issue for both our cases and theirs.”
The Court of Appeal had this March 16 dismissed the citizenship bids in these two cases as it said they had failed to prove they were truly stateless — namely by a boy who will turn 19 this month and who was adopted by Malaysians; and a boy who was born to a Malaysian father and a Thai mother and who will be seven next month.
Lawyer Goh Siu Lin held a watching brief for the Association of Women Lawyers, while lawyer Annou Xavier held a watching brief for the Bar Council, the Human Rights Commission of Malaysia (Suhakam) and Yayasan Chow Kit.
Two related lawsuits
Earlier during the hearing, it was also brought to the judges’ attention that there was another similar case in the Shah Alam High Court also represented by Mah.
When met later, Mah told reporters that the case filed this year at the Shah Alam High Court had identical facts, also involving a boy who was born in Malaysia with his birth parents unknown and adopted by Malaysian parents.
He said the Shah Alam High Court had last Friday decided to exercise its powers to refer constitutional questions directly to the Federal Court for it to decide, adding that the exact same seven legal questions that were posed in that case would be sent to the apex court.
Ranee Sreedharan held a watching brief today as she is the lawyer for a stateless child in the case with the Court of Appeal decision that conflicts with the decisions in the three cases today.
In the case represented by Ranee and filed on March 11, 2016 against the Attorney-General and the Registrar-General, the girl who was born to a Malaysian father and non-Malaysian mother lost her citizenship bid at the Shah Alam High Court.
But in a Court of Appeal decision this March 28, the three-man panel composed of Justices Datuk Tengku Maimun Tuan Mat, Datuk Kamardin Hashim, Datuk Mary Lim Thiam Suan unanimously ordered the Registrar-General to register the child who will be turning 12 this November as a citizen of Malaysia.
Ranee confirmed to reporters that the government has since filed for leave of appeal at the Federal Court against her client’s successful citizenship bid at the Court of Appeal.
Ranee’s case involves the same constitutional provisions on citizenship by operation of law that were raised in the three cases — the Federal Constitution’s Article 14(1)(b) and Sections 1(a) and 1(e) of the Second Schedule’s Part II.
Two of these legal provisions state that every person who is born in Malaysia and who is not born a citizen of any country will become Malaysian citizens, while Section 1(a) requires at least one of the parents to either be a Malaysian citizen or permanent resident at the time of the person’s birth.