In citizenship case, lawyers argue whether Malaysia-born persons need to know biological parents’ identity or if being stateless sufficient

Lawyer Raymond Mah speaks to reporters at the Palace of Justice, Putrajaya February 14, 2019. — Picture by Shafwan Zaidon
Lawyer Raymond Mah speaks to reporters at the Palace of Justice, Putrajaya February 14, 2019. — Picture by Shafwan Zaidon

KUALA LUMPUR, Aug 5 — The High Court today heard arguments from lawyers on whether a person born in Malaysia needs to show the identity of their biological parents before the government recognises them as a Malaysian citizen, or if it would be enough to show that they did not become a citizen of any other country after being born here.

These arguments were raised during hearing for Tan Soo Yin who was born in Johor in December 1983 is currently seeking to be recognised as a Malaysian citizen. She does not know the identity of her biological parents.

Based on court documents, Tan, who will be 37 this year, was sold by her biological mother and given up for adoption by her adoptive foster mother, before her birth was registered in January 1984.

Having left home in her teenage years, Tan has been unable to get any information on who her biological mother as the 84-year-old foster mother is suffering from dementia and as her stepsiblings who she was recently reunited with do not have information about her biological parents, her lawyers said.

Tan has been holding a a green-coloured identity card for temporary residents called MyKas issued by the National Registration Department since she was 19. Such cards have expiry dates and require renewal every few years. Her MyKas states that she is a non-citizen.

According to court documents, she had on December 3, 2018 applied at the Home Ministry for citizenship but was told by ministry officials that she could not make such an application as her birth certificate did not have her biological parents’ details.

In April 2019, Tan filed an originating summons against the Registrar-General of Births and Deaths Malaysia seeking several court orders, including a declaration that she is a Malaysian citizen by operation of law as she was born in Malaysia, in line with the Federal Constitution’s Article 14(1)(b) and Section 1(e) and Section 2(3) of the Federal Constitution’s Second Schedule.

Tan also wants the court to declare that the 1984 birth certificate which registered her status as “belum ditentukan” or undetermined instead of as a Malaysian citizen violates her right as a citizen; and for the court to order registrar-general to reissue a birth certificate that recognises her as a Malaysian citizen and to issue a blue-coloured identity card or MyKad within 14 days of the orders being served.

A MyKad identification card reader in use at a POS Malaysia outlet in Bangi October 15, 2018. — Picture by Shafwan Zaidon
A MyKad identification card reader in use at a POS Malaysia outlet in Bangi October 15, 2018. — Picture by Shafwan Zaidon

Is it enough to be stateless?

Today, Tan’s lawyer Raymond Mah presented extensive arguments on how Section 1(e) of the Federal Constitution’s Second Schedule should be interpreted, arguing it should be read together with Section 2(3) of the Second Schedule.

Under Section 1(e), every person born within Malaysia who is “not born a citizen of any country” is a Malaysian citizen by operation of law.

Section 2(3) meanwhile states that a person is to be treated as having at birth any citizenship which he acquires within one year of their birth.

Mah argued that these two provisions would mean that anyone born in Malaysia — but who do not become citizens of any other country within one year of their birth — would be a citizen of Malaysia under the law.

“It is not disputed that she was born in Malaysia, specifically in Johor; that she is stateless and that she did not obtain citizenship within one year of her birth,” Mah said of his client when arguing why Malaysia should recognise her as a citizen.

As for the government’s argument that Tan needs to identify her biological parents, Mah said this is “completely irrelevant” as the constitutional provisions in Sections 1(e) and 2(3) do not expressly require the biological parents’ identity or nationality to be known.

Mah argued that all Tan had to do was to show that she did not acquire any citizenship of any countries within one year of her birth, noting: “MyKas was obviously issued to her by the government because they are of the view that she is not a citizen of Malaysia or any other country.”

Mah said that he did not think the burden should be on his client to approach each of the more than 100 countries in the world to ask if she is a citizen there.

Mah also noted that the Malaysian government should be the one to raise doubt on Tan’s assertion that she is not a citizen of any country, and said his client would approach any countries to verify any allegations by the Malaysian government that she is a citizen of any foreign country but noted that no such allegations have been made.

Unlike Section 1(a) to 1(d) where references were made to either a person’s “parents” or “father” when it came to citizenship by operation of law, Mah pointed out that Section 1(e) did not made such mentions at all.

Mah’s argument was that this meant Section 1(e) only involves jus soli or the right to citizenship by place of birth, and does not include the need to prove jus sanguini or the right to citizenship by the parents’ nationality.

Merdeka babies sleep in their cribs in Hospital Kuala Lumpur August 31, 2018. — Picture by Razak Ghazali
Merdeka babies sleep in their cribs in Hospital Kuala Lumpur August 31, 2018. — Picture by Razak Ghazali

Proving statelessness?

Senior federal counsel Maisarah Juhari however argued that Tan had failed to produce enough evidence to show that she is a stateless person or is not a citizen of any other country.

She also argued that citizenship even under Section 1(e) requires proof of both jus soli and jus sanguini — the right to citizenship by place of birth and by blood or lineage.

“They are saying she is stateless because she could not find any info pertaining to her birth parents, her allegation is that she was sold to the person who took care of her. However there is a need to prove parents and lineage here,” Maisarah told the court, claiming that there was a lack of evidence by Tan to back up her assertions of not being able to obtain information on her biological mother such as her background and nationality.

Maisarah also questioned Tan’s assertion of not being able to obtain in 2018 her personal information from a primary school that she had attended for two years due to a lack of physical records at that time, saying that there should have been a notification from the school to support this assertion.

Maisarah further argued that the burden lies on Tan to prove that she had not acquired citizenship from any other country and is a stateless person.

“It is not an automatic right to say a person is a stateless person,” she told the court.

She said the burden of proof would only shift to the government after Tan has provided prima facie evidence to show she had taken efforts to determine her origins.

“In this case, the burden has not been discharged although there is not even a single evidence that the plaintiff is born a citizen of any other country. When no serious attempt is made by the plaintiff to discover her true nationality or her parents, the plaintiff cannot rely on such assertions she has made,” Maisarah said.

She argued that Section 1(e) does not allow citizenship to be granted just because there is no evidence that an individual born in Malaysia has citizenship from other countries.

“There is a difference between a person who is not a citizen of a country and one alleging to be stateless. When you say you are not a citizen of a country, without more it does not ipso facto (by the fact itself) lead to the conclusion that one is stateless,” she argued, again insisting that statelessness is not an automatic status.

Maisarah also argued that Tan should first exhaust the alternative remedy available, which is to apply for Malaysian citizenship by naturalisation under Article 19 of the Federal Constitution.

Mah countered, saying that the Article 19 route to be recognised as a citizen is not an alternative remedy.

“Essentially our argument is citizenship by naturalisation is not equal to citizenship by operation of law. It’s not an alternative remedy. In any event, there’s authority to say the government is still obliged to consider an application under Article 14, citizenship by operation of law,” he said.

Also representing Tan today is lawyer Jasmine Wong.

The Sarawak adopted child case

A second separate citizenship case involving a child born in 2002 in Sarawak was heard in the same court today. The child who is underaged was represented by Mah and lawyer Eric Toh, while federal counsel Istisyhad Ismail represented the government.

In this case, the child dubbed L to protect his privacy, was issued a birth certificate in 2017 that recorded him as a “non-citizen”. He was lawfully adopted by Malaysian parents in 2018 and has two other siblings who were born to his adoptive parents and are Malaysians.

The lawsuit against the National Registration Department’s director-general, the home minister and the government of Malaysia is asking the court to issue several orders, namely a declaration that L is a citizen by operation of law due to his lawful adoption in Sarawak by his Malaysian parents in line with the Sarawak Adoption Ordinance’s Sections 2 and 4, as well as Article 14(1)(b) and Section 1(a) of Part II of the Federal Constitution’s Second Schedule.

L is also seeking a declaration that he is a Malaysian citizen by operation of law by virtue of his birth in Malaysia in line with Article 14(1)(b) and Section 1(e) of Part II and Section 2(3) of the Federal Constitution’s Second Schedule.

L wants the court to declare that the birth certificate registering him as a non-citizen is an unlawful violation of his rights as a Malaysian citizen, and an order for the government to reissue a new birth certificate registering him as a Malaysian citizen and an order for him to be issued a MyKad and a certificate of confirmation of status of citizenship confirming the child to be Malaysian within 14 days from the date these orders are served.

High Court judge Datuk Seri Mariana Yahya who heard both cases fixed September 24 for decision.

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