KUALA LUMPUR, March 14 — A child who was born in Malaysia and registered by local authorities as a non-citizen has to first prove she is “stateless” before she can use a constitutional provision to be recognised as Malaysian, the High Court here was told.
Today was the hearing of the bid for Malaysian citizenship and a Malaysian identity card by the 13-year-old child who was born to a Malaysian father and Filipino mother. All three were present in court today.
High Court judge Datuk Faizah Jamaluddin suggested that the child would be considered stateless, as her birth certificate states that she is “bukan warganegara” or non-citizen and since she had not applied for citizenship in the Philippines.
Senior federal counsel Maisarah Juhari, who represented the Malaysian government, however said the girl is not considered “stateless” or a person who has no nationality, as her two biological parents including her Filipino mother was known.
Maisarah noted as example that the child would have to first seek citizenship in the Philippines before coming to the Malaysian government to seek citizenship if the Philippine government does not recognise her.
“Section 1(e) cannot be applied because she is not a stateless person,” she told the court.
The child is relying on two constitutional pathways in her bid to be recognised as a Malaysian, including Article 14(1)(b) of the Federal Constitution read together with Section 1(e) of Part II of the Second Schedule of the Constitution.
In order to be recognised as a Malaysian citizen by operation of law, Section 1(e) requires a person born in Malaysia to be “not born a citizen of any country”.
The alternative constitutional provision that the child is relying on is Article 15A of the Federal Constitution, where the federal government has the power to register any person below the age of 21 as a citizen “in special circumstances as it deems fit”.
The child’s lawyer Annou Xavier earlier noted that the Federal Constitution does not define “special circumstances” and that the granting of citizenship under Article 15A was purely at the Home Minister’s discretion, but also highlighted the January 31, 1962 Hansard which recorded parliamentary proceedings when the government tried to introduce Article 15A.
The then deputy prime minister Tun Abdul Razak was recorded as having explained the term “special circumstances” under Article 15A by saying the government will possibly register a child who probably has no parents here or who “obviously has attachment to the country” as a citizen, also saying: “This is merely to give discretion to the government in cases of hardship and in cases where the government thinks that it is in the interest of the child and the country that the child be registered as a citizen.”
Private interest vs national interest?
The High Court judge also questioned if the child, being unable to go to school, due to her lack of citizenship would fall under “special circumstances”, also suggesting it would be in the national interest for the child to be given schooling opportunity as she was born and lives in Malaysia with her Malaysian father.
“Isn’t it a matter of national interest, if this child doesn’t go to school but she becomes wayward — I’m not saying she is — isn’t that going to affect the country anyway?” the judge asked.
Maisarah argued however that the Hansard did not only refer to a person’s private right or a child’s interest but also involves national interest, also saying that the government had last year said “stateless” children would be able to go to school.
The child was born in Perak in November 2006, with the Malaysian father Lew Yee Hong and the Filipino mother later registering their marriage in Perak on January 31, 2008.
Lew then applied on February 20, 2008 for citizenship for his daughter but received no response at all, causing him to then apply for a second time on October 13, 2011 only to receive a rejection letter over a year later on December 17, 2012.
Lew then mounted a third attempt on September 9, 2013 but received a rejection almost three years later on August 5, 2016, leading him to file the lawsuit together with his child against the latest rejection.
Annou later confirmed to reporters that all three unsuccessful applications by Lew — which spanned eight years — were made under Article 15A.
Annou today highlighted in court that the government did not give any reasons for its refusal to recognise the child as a Malaysian, but Maisarah later argued that the government and the home minister was not obliged under any local laws to provide reasons.
Citing Section 2 of Part III of the Second Schedule of the Federal Constitution, Maisarah argued that the home minister’s refusal to grant citizenship under Article 15A cannot be appealed or reviewed in court, but said Lew could apply for citizenship again under Article 15A.
"It’s not for the court to step in the shoes of the government (and say) ‘No, this is special circumstances and court will grant citizenship by Article 15A’. Because Article 15A only grants power to the federal government and the minister,” she added.
Maisarah also told the court today that parties had previously tried to settle the child’s citizenship issue before the hearing today, but noted that there was “no answer yet” from the federal government or the Home Ministry.
The High Court today fixed May 2 for lawyers from both sides to provide further clarification. Lawyers who held a watching brief today are G. Manimegalai for the Bar Council, Siti Kasim for the Human Rights Commission of Malaysia (Suhakam), Nurainie Haziqah Shafi’i for Yayasan Chow Kit and Ranee Sreedharan for the Development of Human Resources for Rural Areas (DHRRA) Malaysia.
Lew and his daughter filed for judicial review on October 28, 2016 against the Home Ministry secretary-general, the National Registration Department’s director-general and the government of Malaysia, with the duo granted leave by the High Court on December 13, 2016 to proceed with the challenge where they are seeking six court orders.