'Best gift' for 21st birthday: High Court declares Johor-born stateless woman a Malaysian
KUALA LUMPUR, May 12 — A stateless woman born in Johor yesterday received the best gift for her 21st birthday, when the High Court declared her to be a Malaysian under the country's citizenship laws.
This woman, whose name is being withheld to protect her privacy, has waited since the age of 12 — which was when she found out she was stateless — to be recognised as a Malaysian citizen.
"We are so happy that our daughter is finally recognised as a Malaysian. The timing is even better as she just turned 21 a few days ago," her parents told Malay Mail via their lawyers when contacted about the High Court's decision yesterday.
"This is the best birthday gift for her and for us as parents. We hope that this will inspire others to seek help in hard times."
The long wait for citizenship
Born in May 2002 in Sultanah Aminah Hospital in Johor Baru to a Malaysian father and non-Malaysian mother, the woman's birth was registered days later and was also issued a birth certificate which certified her birth here.
The format of her birth certificate issued in May 2002 did not state her nationality status such as whether she was a Malaysian or not, and only carried a note stating "Daftar Orang Asing, Permohonan Seksyen 13". This note on Section 13 was an indication to Malaysian authorities that she was born before her parents were validly recorded as married, but she and her family did not know this meant she was not viewed as a Malaysian by the government since birth.
She was given a Malaysian passport by the Immigration Department in December 2002 and managed to travel abroad with it, and was also able to renew her Malaysian passport in 2009 and 2015.
But in 2014, she was unable to apply for a Malaysian identity card from the National Registration Department (NRD) and was told this was because her status was "Bukan Warganegara" or non-citizen of Malaysia. This was when she found out that the NRD did not consider her to be a Malaysian, and that she was actually stateless.
She filed her first citizenship application on May 18, 2014, but was rejected by the Home Ministry through an April 13, 2018 letter without any reasons given.
Her second citizenship application was filed on July 1, 2018 when she was aged 16, but it has yet to be decided by the Malaysian government until now.
Both her citizenship applications were made under Article 15A of the Federal Constitution.
Under Article 15A, the Malaysian government has the special power to register anyone below the age of 21 as a Malaysian citizen, in such special circumstances as it thinks fit.
This means that there is an age limit of 21 for anyone who seeks to be recognised as a Malaysian using the Article 15A route.
She did not receive any decision even after her lawyers wrote to the government to enquire about her second citizenship application. This meant she is still stateless now, as she is not a citizen of any country including Malaysia.
According to court documents, she is said to be a brilliant student who excels academically and speaks the Malay language fluently.
On October 26, 2022 which was when she was already 20, this woman and her father filed a lawsuit via an originating summons, naming the three respondents as the National Registration Department's director-general, the Home Ministry secretary-general and the Malaysian government.
She sought six court orders, including a declaration that she is a Malaysian citizen, and orders for the issuance of a birth certificate and a Malaysian identification card (MyKad) stating her to be a Malaysian citizen, and compensation for breach of constitutional rights.
A general view of the Kuala Lumpur Court Complex in Kuala Lumpur August 25, 2022. — Picture by Firdaus Latif
What the High Court decided yesterday
According to the Johor-born woman's lawyer Larissa Ann Louis, High Court judge Datuk Amarjeet Singh Serjit Singh yesterday granted three court orders in favour of her client.
This includes a declaration that she is a Malaysian citizen under the Federal Constitution's Article 14(1)(b) read together with Section 1(a) of Part II of the Second Schedule of the Federal Constitution.
Article 14(1)(b) states that those who are born after Malaysia was formed and who fulfil any of the conditions in Part II of the Second Schedule are citizens by operation of law or entitled under the law to be Malaysians.
The Section 1(a) condition states that every person born in Malaysia — with at least one of their "parents" being a Malaysian or permanent resident at the time of their birth — qualifies to be a Malaysian citizen.
The two other court orders require the Malaysian government to issue a birth certificate stating the Johor-born woman's status to be a Malaysian citizen and to issue a MyKad which states her as a Malaysian citizen, with the High Court ordering both documents to be issued to her within 21 days from the court order.
Asked about the High Court's decision, Larissa said the High Court decided to follow the Federal Court's decision in a citizenship case involving a Kuala Lumpur-born stateless child adopted by a Malaysian couple (otherwise known as the CCH case), when interpreting provisions in the Federal Constitution for Larissa's client's case.
While the Johor-born woman in this case has a Malaysian father, the Malaysian government had argued she should be denied Malaysian citizenship as she is an illegitimate child, or was born before her parents married.
Citing Section 17 in Part III of the Second Schedule of the Federal Constitution, the Malaysian government argued that the woman should take on her non-Malaysian mother's nationality, instead of taking on her Malaysian father's nationality.
The Malaysian government also cited the Federal Court's majority decision by four judges in May 2021 — in another citizenship case known as CTEB, which interpreted Section 17 to mean that an illegitimate child should follow his mother's citizenship.
Section 17 applies to illegitimate persons and results in "father” or "parent” or "one of his parents” in the Constitution’s citizenship provisions being interpreted as referring to an illegitimate person’s mother.
The Malaysian government argues Section 17 should be used to interpret the word "parents" in the Section 1(a) condition to refer to the Johor-born woman's non-Malaysian mother, and that it would arguably result in her failing to fulfil the condition — of one of her "parents" being a Malaysian when she was born — to be entitled to Malaysian citizenship. The Johor-born woman's lawyers disagree with this argument.
Lawyer Larissa Ann Louis speaks during a hearing for citizenship case in Kuala Lumpur High Court January 4, 2023. — Picture by Miera Zulyana
The High Court yesterday adopted the position in the Federal Court's November 2021 decision in the CCH case, which had in turn adopted the Federal Court's minority judgment in May 2021 by three judges in the CTEB case (which involved a child with a Malaysian father and non-Malaysian mother).
The Federal Court's minority decision said Section 17 should only apply to situations where the father is unknown or unacknowledged and that it cannot be interpreted as imposing a requirement for a child — of a Malaysian father married to a foreign mother — to not be illegitimate.
The minority decision said Section 17 should not apply to the child in CTEB's case, as the Malaysian father is legally acknowledged and not in doubt, and as the child's status became legitimised by the marriage of the parents after the birth, giving its view that Malaysia's Parliament never suggested that the foreign mother's citizenship should substitute the Malaysian father's citizenship if the child was illegitimate at birth.
The Johor-born woman's lawyers had previously cited this minority decision in CTEB to argue that Section 17 does not apply to her, as her Malaysian father's identity is known and acknowledged, and as she became legitimate when her parents later married after her birth and she would then be able to take on her father's Malaysian citizenship in line with Section 1(a).
In this case involving the Johor-born woman, senior federal counsel Nur Irmawatie Daud represented the government.
With the High Court decision, Larissa was happy her client is now recognised as a Malaysian citizen.
"Turning 21 often symbolises entrance to adulthood. Today, I am glad my newly turned 21-year-old client will enter adulthood knowing that she is known and legally recognised by a country, specifically Malaysia.
"Yes, it’s worrying that stateless kids are now turning into stateless adults but I believe this case will give hope to those struggling," Larissa told Malay Mail yesterday.