KUALA LUMPUR, Oct 21 — The Malaysian government today objected in court to the granting of citizenship to a man who was born 26 years ago in Sabah to a Sarawakian father and a mother of uncertain nationality, arguing that he should have done more to prove that he is stateless or not a citizen of any other country.
Wong Kueng Hui was born on January 2, 1995 in Hospital Keningau, Sabah, and has waited for the past 14 years to finally be recognised as a Malaysian.
His Malaysian father died when he was 10 years old, while his non-Malaysian mother died when he was 17.
Wong had previously applied twice under the Federal Constitution’s Article 15A to be recognised as a Malaysian, but was rejected twice.
(Article 15A states that the Malaysian government may register anyone under the age of 21 as a Malaysian citizen under such special circumstances as it thinks fit.)
The first time Wong had applied was via his stepsister on September 26, 2007 when he was 12 and this was rejected almost three years later via a June 18, 2010 letter when he was 15.
He then applied for the second time through his stepbrother on June 27, 2014 when he was 19.
Wong had previously told the court that he had made frequent checks with the National Registration Department (NRD) in Sabah about his 2014 application’s status but was eventually forced to shift to Kuala Lumpur in December 2017 after being told that it was being handled by the Putrajaya headquarters, and had made frequent checks in December 2017.
It was only on March 21, 2019 when Wong contacted the Home Ministry again that he was told to collect a letter, and he had on the next day then collected the letter dated February 15, 2018 informing him that his second application had been rejected.
Wong said both he and his stepbrothers were never notified of the decision before that and that he had by then turned 24 — which is the age limit for Article 15A citizenship applications.
The Indonesian embassy had previously on June 20, 2019 confirmed that it had not found any records of both Wong and his mother in its passport database, following a request from Wong on June 17, 2019.
Wong then filed a lawsuit through a judicial review on June 20, 2019 to seek several court orders, including to be recognised as a Malaysian citizen.
The High Court had on October 21, 2019 recognised that the Malaysia-born Wong is a stateless person, declaring that he is a Malaysian citizen based on the Federal Constitution’s Second Schedule’s Part II’s Section 1(e) — a provision where those born within Malaysia and are not born a citizen of any other country are entitled under the law to Malaysian citizenship.
The High Court judge Datuk Nordin Hassan had also ordered the NRD director-general to issue a citizenship certificate or identification card to Wong.
But the NRD director-general, home minister and Malaysian government had on October 31, 2019 filed an appeal and had also obtained a stay on the High Court decision. The stay means the High Court’s decision has yet to take effect.
Today was the Court of Appeal’s hearing of the government’s appeal against the High Court’s decision which had recognised Wong as a Malaysian.
Has enough been done to show statelessness?
Senior federal counsel Mohd Izhanudin Alias, who represented the Malaysian government, said Wong is an illegitimate child as there are no records showing his parents married, arguing that Wong will have to follow his mother’s nationality due to his status as an illegitimate child.
While saying it was not disputed that Wong was born in Malaysia as stated in his birth certificate, Izhanudin cited a previous Federal Court decision as well as a constitutional provision to say that Wong as an illegitimate child should take on his mother’s nationality instead of his Malaysian father’s nationality.
Izhanudin was referring to Section 17 in Part III of the Second Schedule in the Federal Constitution, which provides references to an illegitimate person’s “father” or “parent” or “one of his parents” in the Constitution’s citizenship provisions will be interpreted as referring to the person’s mother.
In Wong’s case, Izhanudin said Wong had not done enough to determine his mother’s nationality.
“In this case, the applicant said he is stateless, but when we look at the birth certificate records, it is clearly stated firstly that the mother is of Bugis descent, and there is a number which we are not sure if it is a passport or what record,” he said, referring to an identification number recorded in the birth certificate as part of his mother’s details.
While noting that Wong had carried out a search via the Indonesian embassy in Malaysia which found no records of the passport of his mother, Izhanudin argued that this was insufficient for Wong to satisfy the “burden of proof to prove he is a stateless person”.
At this point, Court of Appeal judge Datuk Gunalan Muniandy sought clarification by noting that Wong is just a layman who does not know his mother’s origins except for the identification number, asking whether the NRD would be in a better position to determine what the serial number shows.
Citing a past Court of Appeal case where a Malaysia-born child had placed advertisements and made public announcements to find out the identity of the unknown biological mother, Izhanudin said the burden of proof is on the applicant to satisfy the Malaysian government of the facts when seeking for Malaysian citizenship.
Izhanudin said Wong had only made a search to one embassy which is the Indonesian embassy, but argued that there were other countries that have Bugis communities other than Indonesia.
Judge Gunalan then asked if it would be a fair assumption to assume Wong’s mother’s possible nationality as Sabah is located close to Indonesia and with many Indonesians living there.
Izhanudin argued that Wong had made the search for his mother’s nationality by allegedly basing it on the assumption that the mother’s identification number refers to her passport, and said that they had allegedly not checked if that number could be referring to an Indonesian identification card, further saying that the search results only showed no record of Indonesian passport but did not show whether the mother is Indonesian or not.
Lawyer asks if Wong has to ask every embassy
Wong’s lawyer Haijan Omar however argued that his client had done all that he could to find out what his late mother’s nationality was by relying on the limited information in the birth certificate, and also stressed that his client is a stateless person with no citizenship in any country and with only Malaysia to call home.
“My client has lived all his life in Malaysia since birth, there is no dispute that he was born in Hospital Keningau, Sabah, nowhere else to go,” he said, noting that Wong was taken care by an unofficial adoptive family after both his parents died.
“His father died when he was very young, that time he was a minor, he didn’t know anything, and currently even when he made the application, he didn’t have any documents of his mother, all he is armed with is his birth certificate, he goes around with his birth certificate,” he said.
Haijan argued that Wong had taken “reasonable steps” to determine his mother’s nationality by checking with the Indonesian embassy using the identification number, further asserting that the Indonesian embassy’s search results showed that the mother is not an Indonesian citizen.
While Court of Appeal judge Datuk Azizah Nawawi noted that the Indonesian embassy had only said the passport number is not registered in its database and did not state whether Wong’s mother is Indonesian or not, Haijan replied: “The Indonesian embassy acknowledged this looks like a passport number but is not registered on the record with the Indonesian embassy.”
Haijan said this supports his client’s position that he does not know what country his mother belongs to, and argued this should remain valid as the Malaysian government did not file affidavits to dispute this.
“He is just a layperson, all he was armed with is his birth certificate, that is the only identification of his mother that he knows of, he used this to check, what more could he do?
“So now, my contention is this, even Indonesia doesn’t recognise the mother as belonging to their citizen, so where does he go to? Does it mean he has to go to all embassies? That would be unreasonable, Yang Arif, all his life he lived without documents,” he said, adding that the Malaysian government did not carry out its own checks to rebut this when they had all the manpower and resources that would enable such checks.
Haijan said the Malaysian government did not via court documents tell Wong that his search with the Indonesian embassy was insufficient to prove his stateless status, and similarly did not tell him to take further steps or to check with other embassies.
“So we don’t know what else we can do, that’s why we came to court,” he said, having described Wong as being stuck in a “limbo” in terms of his bid to be recognised as a Malaysian.
Haijan said Wong could not have been a citizen of any country and is now stateless unless the court intervenes, saying: “He has proved on balance that he was not born a citizen of any country.”
Haijan ultimately argued that the High Court’s decision in favour of Wong is a correct decision that has no errors that could be appealed, and urged the Court of Appeal to uphold the High Court’s decision.
Izhanudin responded by saying that the birth certificate only stated Wong’s mother to be of Bugis descent and did not show she is an Indonesian, while saying that the Indonesian embassy’s search results did not show if there was ever a passport or Indonesian identification card with that serial number.
Arguing that the burden is still on Wong to prove he is a stateless person and that it would not be enough to just do a passport search with the Indonesian embassy, Izhanudin said Wong should have taken additional steps of searching at his birthplace or the medical facility he was born in for information about his mother.
While confirming that the NRD did not in court documents advise Wong to take further steps apart from asking the Indonesian embassy, Izhanudin said Wong should have done more to check that the identification number is neither a passport nor an Indonesian identification card and to not presume it as a passport number.
The government’s appeal today was heard by a three-judge panel chaired by Azizah, with the two other Court of Appeal judges being Datuk Che Mohd Ruzima Ghazali and Gunalan.
When contacted, Haijan told Malay Mail that the Court of Appeal has fixed November 10 for the delivery of the decision.