IPOH, Sept 10 — The High Court has set Oct 25 to decide the citizenship application of a stateless child, born to a Malaysian father and Chinese national mother in Ipoh.
Judge Datuk Abdul Wahab Mohamed made the ruling after hearing submissions from both sides today.
“I need some time to sit down and go through the case as dealing with fundamental rights and citizenship is not an easy thing,” he said.
The case involved a five-year-old girl, who may not be named and identified only as OXT, who was born on June 24, 2016, but was not granted citizenship as her parents had not been married at the time.
The couple in their late 30s registered their marriage legally at the National Registration Department in Putrajaya three months after the child was born and has been applying for her citizenship since 2017.
In September 2019, the High Court here declared OXT to be legitimate child of her parents as Malaysian law allows non-Muslim couples to legitimise child by marrying later.
The parents also obtained DNA results proving that OXT was their biological child two months later. Subsequently, the parents filed the lawsuit through the originating summons in December 2019.
Earlier in today’s hearing, Ong Yu Shin, who represented the parents, said the child must only satisfy two conditions to be recognised as a citizen under Article 14(1)(b) of the Constitution.
“The first, OXT needs to be born after Malaysia Day, which is the case here. Second, OXT needs to fall under either one of the qualifications specified in Part II of the Second Schedule.
“In our case, she satisfies two of the conditions in Part II which are Section (1)(a) every person born within the Federation of whose parents one at least is at the time of the birth either a citizen or permanently resident in the Federation and Section (1)(e) every person born within the Federation who is not born a citizen of any country otherwise than by virtue of this paragraph,” he said.
Ong also said that OXT held no other citizenship or passport of any other country.
He added that only OXT was currently stateless in the family, as her younger brother who was born on September 19, 2018 to the same parents was Malaysian.
Ong also pointed out that OXT’s case differed from and escaped the confines of another case before the Federal Court this year in which it was decided that the child was not entitled to the right of citizenship of this country.
Deputy public prosecutor Ashyraf Ashyari Kamaruzaman suggested to the court that the decision on the child's citizenship must be made based on precedent and law, and not solely on the facts of the case.
When met outside the court, Ong told reporters that the law should be read harmoniously today as the law passed in 1957 by the British says the child should follow the mother’s nationality if the child was born before marriage.
“The recognition of both father and mother has been seen equally throughout the world today. What we meant by harmonious is that there cannot be a difference between father and mother. Father should be seen as mother in this case.
“We also have a Latin principle ‘jus soli’ which says that if you are born of the soil and you are stateless then you should be recognised as Malaysian.
“Also, Malaysia is a signatory to the United Nations Convention on the Rights of the Child 1989 where the Convention said children born in the country should not be stateless. So, we should try our best to ensure the child has the benefit of citizenship.
“So, this one citizenship paper shouldn’t divide the child from the family as the rest of the family have obtained citizenship. The benefit and welfare of the child is limited especially when she enters schooling,” he said.
Ong was accompanied by lawyers Datuk Nicholas Kow, Andy Ooi Keng Liang and Intan Maisara.
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