KUALA LUMPUR, Aug 4 — Did you know that Malaysia’s laws protect “new born” children that are found abandoned from becoming stateless persons, and enables them to have the right to automatically be Malaysians?
But what is a “new born child”?
The Court of Appeal recently told a woman (identified only as G for privacy purposes) that she was not a “new born” child when found abandoned at around 1am at a bus station in Mentakab, Pahang in December 1997.
A doctor who examined G at that time had estimated she was aged about one year old, while G’s adoptive Malaysian mother’s police report filed two days later said she was approximately one and a half years old when found.
G has since then been adopted and raised by her Malaysian adoptive parents in Malaysia, but the Malaysian government had rejected her citizenship application three times (with her third application in 2014 rejected nearly four years later in 2018).
Now aged 29, G, who does not know who her biological parents are, is still waiting to be recognised and declared as a Malaysian citizen.
Can all abandoned children be protected from statelessness by Section 19B?
Here’s why G lost her citizenship appeal at the Court of Appeal, based on Datuk Faizah Jamaludin’s 20-page full written judgment that was agreed on June 30 by the two other judges on the panel (panel chair Datuk Azhahari Kamal Ramli and Datuk Hayatul Akmal Abdul Aziz):
G had argued that she has the right to be a Malaysian citizen under the Federal Constitution, based on Section 19B of the Federal Constitution’s Part III of the Second Schedule.
Under Section 19B, “any new born child found exposed in any place” shall be presumed to have been born there to a mother who is a permanent resident there, and the date the child was found will be treated as the child’s date of birth.
The Court of Appeal agreed that Section 19B has an “important protective purpose” as it reduces the risk of statelessness for a new born child found abandoned, but said that this should be based on how the Federal Constitution was worded.
While agreeing that G was abandoned as a child, the court said Section 19B “does not apply to every abandoned child” as Section 19B also requires the child to also be “new born”.
The court said it cannot remove the “new born” requirement from Section 19B.
How old does a child have to be to come under Section 19B’s protection from statelessness?
G argued that Section 19B’s “new born child” should be interpreted to include “a very young, abandoned child” who is unable to identify or communicate reliable information about the child’s place of birth or parents.
But the government argued that the words “new born child” should only cover a baby’s first 28 days of life, based on medical terminology.
Ultimately, the Court of Appeal did not specify how old a person should be to still be considered a “new born child” under Section 19B, but relied on the facts in the case when concluding that G was not a “new born child” when she was found.
“We do not consider it necessary in this appeal to adopt a fixed medical definition of ‘new born child’ for all constitutional purposes. It is sufficient to decide this appeal on its facts.
“A child who was about one year old, or one and a half years old according to the police report, cannot properly be described as a ‘new born child’ within Section 19B,” the judge said.
If a “new born child” in Section 19B was extended to cover a child of around one year old or one and a half years, the judge said this would enlarge the category of individuals covered by Section 19B beyond the words chosen by the Federal Constitution.
The judge had said that Section 19B had “chosen” the words “new born child”, which she described as “words of limitation”.
In other words, the phrase “new born child” would limit whether abandoned children could rely on Section 19B, based on their age.
“If Section 19B were intended to apply to every abandoned child irrespective of age, it would not have used those words,” the judge had said earlier in the judgment.
For G, the judge noted both the doctor’s one-year estimate and the one-and-a-half-year-old estimate in the police report, saying: “On either version, she was not a new born child when found.”
As for Section 19B’s provision treating the day of discovery as a child’s date of birth, the judge said this would apply for an abandoned new born child as the actual date of birth cannot be known with certainty, but not when there is already evidence to show that G had been born about one year earlier.
With G having argued that she should be a Malaysian citizen “by operation of law” or because of what the law says in the Federal Constitution, the judge said a person can only be a citizen by operation of law if they fulfil the Federal Constitution’s requirements.
“The court is not at liberty to add to, subtract from, or modify the constitutional qualifications. It cannot confer citizenship by sympathy or discretion,” the judge said earlier in the judgment.
The judge later also said the panel empathised with G’s difficult circumstances, but said citizenship by operation of law still requires constitutional requirements to be met.
In its judgment, the Court of Appeal made the observation that G still has the option of applying for Malaysian citizenship by naturalisation under the Federal Constitution’s Article 19, if the federal government is satisfied that she has met the requirements under Article 19.
As this decision was at the Court of Appeal stage, G can still try to pursue her appeal at the Federal Court, which is the highest court in Malaysia.
When contacted by Malay Mail, G’s lawyer Mohd Haijan Omar on July 30 confirmed that his client has filed for leave to appeal at the Federal Court.
Another abandoned child gets citizenship in court ruling, but government is appealing
Separately, the same Court of Appeal panel in a 2-1 ruling on June 30 decided that M, a child who was abandoned by her mother a few days after being born at a Klang clinic, is entitled to be a Malaysian citizen by operation of law.
M has been cared for by her Malaysian adoptive parents who had registered her birth within nine days after her birth and has lived in Malaysia her whole life.
Unlike G’s case that was focused on whether she was a “new born child” when found abandoned, the 17-year-old M’s case was focused on whether she was “abandoned”.
In the 23-page majority judgment for that case sighted by Malay Mail, Faizah said the evidence showed M was a “new born child” under Section 19B as she was left at the clinic within a few days of birth.
“Nothing in the language of Section 19B, or in CCH, confines the provision only to a child discovered immediately upon delivery or within a matter of hours,” the judge said, referring to the Federal Court’s November 19, 2021 decision in the CCH citizenship case on a child abandoned after birth in a Kuala Lumpur hospital and who was adopted by Malaysian parents.
Faizah said the Federal Court’s CCH ruling recognised that Section 19B could include a child abandoned at the place of birth by an unknown biological mother, clarifying that CCH does not prevent Section 19B from applying to a new born child born in a clinic and also does not limit Section 19B to only “open or physically exposed” places.
Faizah concluded that the facts showed M was indeed “abandoned” as a new born child, which meant Section 19B applies to her, and that she has met the constitutional requirements to be a Malaysian since the government had failed to rebut the Section 19B presumption.
Those facts include the biological mother leaving the child behind at the clinic after birth; the biological mother (whose true identity and nationality is unknown) not leaving any details through which she could be identified or traced; and the biological father’s identity being unknown.
When contacted by Malay Mail, M’s lawyer Eric Toh Kah Yung on July 30 confirmed that the federal government has filed for leave to appeal at the Federal Court against the ruling that the child is a Malaysian.
Recommended reading:
- Lawyer tells court one-year-olds should be considered ‘new born’ to prevent statelessness
- Court of Appeal grants Malaysian citizenship to abandoned Klang teen, rejects Pahang woman’s appeal
- Federal Court declares stateless KL-born child adopted by Penang couple a Malaysian citizen, orders issuance of new birth certificate
