Home minister 'has the final say' on stateless children

The fates of stateless children born in Malaysia ultimately lie in the hands of Home Minister Ahmad Zahid Hamidi.

Lawyer Annou Xavier, who has handled a number of cases involving citizenship for stateless children, said the home minister has final say on citizenship, as per certain provisions of the Federal Constitution.

"Under Article 14 and Article 15A of the Federal Constitution, the end result and final power (to grant citizenship) rests in the minister concerned. And that is the home minister," Annou told Malaysiakini yesterday.

Article 14 deals with citizenship by operation of law as subjected to certain provisions, while Article 15A outlines the special power to register children, that is the "federal government may, in such special circumstances as it thinks fit, cause any person under the age of 21 years to be registered as a citizen".

Annou (photo) said that usually, after stateless children have failed in their application for citizenship through the National Registration Department (NRD), he would recommend that they take the matter to court.

While they can try to reapply through the NRD again, he said, it would take an additional 12 to 18 months to wait for the results, in addition to the initial 12 to 18 months from their first application.

Annou was referring to two types of stateless children in this case, where one of their parents is a foreigner and where a child who was born abroad has been adopted by Malaysian parents.

He also pointed out that in the case of adopted foreign children, there is a possibility that Section 9 and Section 25A of the Adoption Act 1952 legitimises the child, though they would still need to apply for citizenship.

Easier threshold

In taking the matter to court, Annou said, he would urge the court to apply Article 14 and Article 15A of the Federal Constitution.

"Why Article 15A? Because it is a very specific provision for those below the age of 21, where the threshold to apply for citizenship under Article 15A is much lesser and much easier compared Article 14," he explained.

Unlike Article 14, Article 15A does not specify the conditions that need to be fulfilled to be granted a citizenship, he said.

Under Article 14, he said, there are certain thresholds that have to be fulfilled in order for a person be granted citizenship, such as a technicality that says citizenship normally follows the mother.

"What happens if your mother is a foreigner?

"Because, from birth, the child has eaten nasi lemak, drank teh tarik, eaten all Malaysian foods and wants to be a Malaysian citizen, so why on earth would he want to be a citizen of another country, even though the mother is a foreigner?" Annou questioned.

Despite having precedents, he said, there is no predicting how the judges would rule in such cases.

"In many of the cases I have handled, sometimes the High Court judges grant the citizenship and in some cases they don't grant the citizenship.

"Of course, the judges will say that the discretion (to grant citizenship), at the end of the day, lies with the minister concerned," he said.

Process too lengthy

If they lose the court case, Annou said, he will usually do one of two things: he can either appeal, which might take a lot of time and will be costly, or he can ask the judge for a court order so he can go back to the NRD and reapply for citizenship.

"But again, the parents will have to wait another 12 to 18 months," he said.

He lamented that the time taken for this whole process is problematic, as not only can the children not enjoy the benefits conferred by citizenship during this period but also, once they reach 21 years old, they can no longer apply under Article 15A.

What about children born to unmarried parents, where one is Malaysian and the other is a foreigner?

"Most of the time when the court disallows the application (for the child's citizenship), they say you're not married, so some of them (the parents) get married after the child is born.

"But in some instance, the courts still dismiss the application," he said.

If there appears to be a lack of a standard protocol involving the granting of citizenship to stateless children born in Malaysia, he said it boils down to the discretion of the home minister.

Annou also pointed out that Malaysia signed the Convention of the Rights of the Child in 1995, where Article 7 states that a child shall be registered immediately after birth and shall have the right to acquire a nationality.

"In other words, if a child is born in Malaysia, he has the right to acquire a nationality to follow that of his parents.

"Malaysia ratified that convention in 1995, which means we should give effect to our citizenship laws as found in the Federal Constitution, as found in Article 15A," he said.

Well drafted, but misintepreted law

Meanwhile, fellow lawyer Latheefa Koya said Clause 1(e) of Part II of the Second Schedule of the Federal Constitution is supposed to protect people from statelessness.

Clause 1(e) states that a person is a Malaysian citizen by operation of law if they are "born within the federation who is not born a citizen of any country".

What this means, she said, is that as long as children have birth certificates to prove they were born in Malaysia and there is no way to track down the details of their biological parents, then the child should be granted citizenship.

"Actually, the Federal Constitution on citizenship is one of the most well-drafted clauses, but it is how it is being interpreted.

"So what is the policy? Read it (the law) in the most strictest fashion or give benefit of doubt to the child?" Latheefa asked.

On March 16, the Court of Appeal unanimously dismissed two separate applications, one by an adoptive parent and another by a biological father, seeking to declare their children as Malaysian citizens.- Mkini