Lawyer tells court one-year-olds should be considered ‘new born’ to prevent statelessness

PUTRAJAYA, Jan 20 — The Court of Appeal should consider one-year-old children as “new born”, in order to enable such abandoned children to automatically be Malaysians and protect them from being stateless, a lawyer argued today.

Lawyer Mohd Haijan Omar’s 29-year-old client (known only as G for privacy purposes) was found abandoned at around age one at a bus station in Mentakab, Pahang by her adoptive mother.

Today, Haijan noted that the Federal Constitution protects abandoned “new born children” from becoming stateless or becoming a person who is not a citizen of any country in the world.

This protection is done through Section 19B of Part III of the Federal Constitution’s Second Schedule, where such children who are found abandoned are presumed to have been born to a mother who is a permanent resident in Malaysia.

These children who were born in Malaysia can then automatically be Malaysians, as they will fulfill the condition of having one parent who is either a Malaysian or a permanent resident.

Haijan said the High Court had rejected his client’s bid for Malaysian citizenship, as it said she was not found abandoned as a “new born” child.

“But what does it mean by ‘new born’? Does it mean she has to have the umbilical cord? Does it mean you go by the strict definition of medical ‘new born’? That means it has to end at day 28? Because that is how it is defined — ‘new born’ means one day old until 28 days old.

“Does it mean after 28 days, if she’s found at 30 days or even three months, she cannot resort to this? The fact of the matter, she was found abandoned,” he said.

Haijan argued that the Federal Constitution should not be interpreted narrowly especially when it involves fundamental liberties.

“And it’s recognised also that Section 19B itself is a protection against statelessness. Therefore, Yang Arif, I submit that the court should interpret the word ‘new born child’ generously and broadly to include a one-year-old child,” he said.

Haijan highlighted the United Nations (UN) agency UNHCR’s Guidelines on Statelessness 2012, which said the safeguard of giving citizenship — to children born in the country to prevent them from becoming stateless — should apply to “all young children who are not yet able to” accurately communicate information on their parents’ identity or their place of birth.

“So in our case, she was found when she was one year old. There is no way we can expect her to know of her biological parents and place of birth,” he said.

Haijan said it is “unreasonable to expect a one-year-old child to inform the persons who found her” about this information, and said that means his client can only rely on Section 19B to avoid becoming stateless.

Haijan said his client was immediately brought to a doctor who certified she was about one year old, and a police report was lodged to search for her biological parents, before her adoptive Malaysian parents eventually adopted her.

But her biological parents are still unknown, with Haijan saying: “Until today, there’s no way, she cannot even begin to find out who her biological parents are.”

The government argued that ‘new born’ child in the Federal Constitution should strictly only follow the medical definition of babies up to 28 days’ old. — Picture by Sayuti Zainudin

Federal counsel Safiyyah Omar, who represents the government, however argued that including one-year-olds would be “stretching” the meaning of “new born” in the Federal Constitution.

She said Section 19B was very “precise”, and referred to the World Health Organization’s (WHO) definition of “new born” when saying it should only cover a child’s first 28 days of life.

Court of Appeal judge Datuk Faizah Jamaludin then asked whether the court was being asked to stretch the meaning of “new born”, and at what age this should end and if it would hypothetically be argued to cover even up to 10 year olds.

But Haijan said he is not asking for the word’s meaning to be stretched, and that the UNHCR guidelines means that the age will depend on whether a child has “capacity” to give accurate information on their birthplace and birth parents.

Lawyer Asyraaf Abu Bakar Hamzah today also represented G, whose three citizenship applications were previously all rejected by the government before she came to the court.

The Court of Appeal panel today is chaired by Datuk Azhahari Kamal Ramli and also comprised of Datuk Hayatul Akmal Abdul Aziz.

The Court of Appeal today also heard five other citizenship cases involving adopted Malaysia-born children who do not know their birth parents’ identity.

The court has scheduled January 26 as case management to fix a decision date for all six cases.

What does ‘abandoned’ mean?  

In one of the six cases today, lawyer Eric Toh Kah Yung noted that the High Court had rejected citizenship for the child known as M (who will turn 18 this year), because the court ruled that she was not “abandoned” at a Klang clinic due to certain facts in the case.

He asked the Court of Appeal to consider the meaning of the word “abandon” in Black’s Law Dictionary: to leave someone especially when it amounts to giving up responsibility; to give up with the intention of never reclaiming rights or interest again; and to desert or go away permanently.

He said this was what happened in his client’s case: M’s biological parents deserted and left the child upon birth at the clinic, and the biological parents did not register the child’s birth and did not come back to look for her until today, and her birth was registered within nine days by a Malaysian couple who adopted her.

This is why he said M was actually abandoned, and she should be recognised as a Malaysian.

Lawyer Chong Lip Yi also represented M and her adoptive parents, while the government was represented by senior federal counsel Syahriah Shapiee.