KUALA LUMPUR, Jan 6 — The High Court in Shah Alam declared a 10-year-old stateless girl, whose biological parents are unknown and is now the adopted child of a couple in Kuala Lumpur, as a Malaysian yesterday.
The High Court ordered the authorities to give the girl a new birth certificate recognising her as a Malaysian, declaring her current birth certificate which recorded her as a non-Malaysian as unlawful.
The girl’s adoptive parents’ lawyer Sharmini Thiruchelvam told Malay Mail that High Court judge Datuk Khadijah Idris had found that the child was born within Malaysia and was a “newborn baby found exposed” or who was found abandoned, after having considered all the evidence produced in court.
According to Sharmini, the High Court also said this finding of the child abandoned at birth in Malaysia “triggered the presumption” that the child was born to a mother who is a permanent resident in Malaysia, in line with Section 19B of Part III of the Second Schedule of the Federal Constitution.
Sharmini said the High Court also found that the Registrar-General of Births and Deaths Malaysia — who was sued by the adoptive parents — had failed to rebut the presumption that the child was born to a mother of permanent resident status, as no evidence was produced to show that the girl was born to a mother who is not a permanent resident in Malaysia.
Sharmini said the High Court then gave a court order to declare that the child is a Malaysian citizen by operation of law, based on the Federal Constitution’s Article 14(1)(b) and the Federal Constitution’s Second Schedule’s Part II’s Section 1(a) and also the Second Schedule’s Part III’s Section 19B.
Article 14(1)(b) states that those who fulfil any conditions in the Second Schedule’s Part II are entitled to be Malaysian citizens, with one of these conditions being Section 1(a) — being born in Malaysia with at least one Malaysian parent or at least one permanent resident parent.
Section 19B provides that “any newborn child found exposed in any place” shall be presumed to have been born there to a mother who is a permanent resident of that place until the contrary is shown, and the date of the child being found is to be taken as the child’s date of birth.
Since the High Court yesterday found the girl to be born abandoned in Malaysia to a mother presumed to be a permanent resident of Malaysia, this means she fulfilled the Section 1(a) condition — of being born in Malaysia to at least one parent who is permanent resident — to be entitled to be a Malaysian citizen.
According to Sharmini, the High Court yesterday also granted three other court orders which her clients had sought, including a declaration that the 2017 birth certificate — which registered the girl as “Bukan Warganegara” (non-citizen) instead of a Malaysian citizen — is an “unlawful violation of the child’s rights as a citizen of Malaysia”.
The High Court also ordered the Registrar-General of Births and Deaths to reissue the child’s birth certificate and register her as a Malaysian citizen within 14 days of this court order being served, and also ordered that the court order can be served via registered post to the National Registration Department.
Malay Mail is withholding the identities of the child and her adoptive parents, with the girl to be known only as ‘A’.
What happened in this case
On June 14, 2022, the adoptive parents filed a lawsuit through an originating summons at the High Court in Shah Alam against the Registrar-General of Births and Deaths in Malaysia, seeking to have the girl declared a Malaysian citizen.
Based on court documents, the married couple is a Malaysian woman and a non-Malaysian man.
The adoptive mother in a court affidavit said the child was born in a hospital in Kuala Lumpur in 2013, and that a woman had on or around the date of the child’s birth told her that the biological mother wanted to give the child up for adoption.
Other court documents showed the adoptive mother as having said that the woman — who is her acquaintance and not the biological mother — had given the child to her for adoption and that the woman had said the biological mother did not want to take care of the child.
The adoptive parents in 2015 filed an application in the Sessions Court in Shah Alam to legally adopt the girl, and the court in 2017 allowed the girl to be legally adopted by the couple and ordered for a new birth certificate to be issued.
But this new birth certificate issued in 2017 registered the girl as a non-citizen of Malaysia.
While Malaysian authorities had not recognised the girl to be a Malaysian, the adoptive parents had said that the child was not a citizen of any other country. This means that she is stateless, since she is not a citizen of any country.
Following the High Court’s decision yesterday, the girl would no longer have to be stateless.
Federal counsel V. Khrisna Priya represented the Registrar-General of Births and Deaths.
Based on court documents, the Registrar-General of Births and Deaths via the federal counsel had among other things argued that Section 19B does not apply to the facts of the child’s case, as it argued that the adoptive parents had failed to prove that ‘A’ falls under the category of a child abandoned at birth and as the adoptive parents had taken her from the woman.
The adoptive parents had through their lawyers said they had never met the biological parents when they took the child from the woman, and that the woman is not ‘A’s biological mother or biologically related to A. The adoptive parents said the biological parents’ identities are unknown.
Their lawyers argued that this clearly showed that A was abandoned by her biological parents to the woman who offered her up for adoption to the adoptive parents, and argued that this is why Section 19B applied to the girl’s case.
Following those submissions by both sides, the High Court then decided that the girl was entitled to be a Malaysian citizen.
Previously, the Federal Court’s five-judge panel had in November 2021 delivered a landmark decision on Section 19B, which it said was intended to avoid statelessness to cover the “harsh realities of life” for newborn children “left abandoned near dumpsites, baby hatches, public or school toilets, places of worship and so on”.
The Federal Court had also said Section 19B should be given the broadest possible interpretation to include a child abandoned at the place of birth by the birth mother whose identity is unknown and to cover the plight of such abandoned newborn children, as it would otherwise defeat the purpose of preventing statelessness.
