What lies ahead for a stateless child in Malaysia?

By Ida Lim
Five children were denied Malaysian citizenship despite being born in Malaysia, and had sought to be recognised as citizens under the Federal Constitution. — Picture by Yusof Mat Isa

KUALA LUMPUR, March 20 — Children who are born in Malaysia but fail to get citizenship are thrown into a complex bureaucratic and legal mess, leaving them with an uncertain future that can appear hopeless.

Stateless children in Malaysia have many different circumstances. Some are abandoned at birth, others are adopted but cannot trace their birth parents, and more are born to a foreign mother who did not register their marriage to their Malaysian spouse.

Whatever their scenario, however, these children face an arduous road ahead.

While going to the courts is the most conventional way of challenging the National Registration Department’s refusal to recognise a Malaysia-born child as citizen, failure here sets the child up for a life of uncertainty.

Countdown to 21

Lawyer Raymond Mah said children who are unsuccessful at the Federal Court may still try for citizenship under the Federal Constitution’s Article 15A, through which the federal government may register anyone below 21 in special circumstances as it thinks fit.

Such powers are granted to the home minister, whose decisions are also not subject to review, he added. Rejections are also not terminal as in the court system, Mah explained.

“If an application under Article 15A is unsuccessful, it can be resubmitted. There is no limit on the number of times an application under Article 15A can be made, until the child turns 21 years old,” he told Malay Mail Online when contacted.

Another lawyer, Simon Siah, who has handled cases of Sarawak-born children being denied citizenship, also cited Article 15A as a possible option if the child has yet to turn 21.

“However, such applications are rarely successful and as we speak, one of the [children] I am helping just got rejected,” he told Malay Mail Online.

Lawyer Annou Xavier noted, however, the practical problems with the route, saying that such applications could take 15 to 18 months to even receive a response.

One of the many cases illustrating stateless children’s desperate battle against the narrowing window of time is that of Alexander Than Keng Mun, an adopted child who lost his citizenship appeal at the Court of Appeal last Thursday.

His ordeal began when he was 12, when the NRD listed his parents as unknown in a fresh birth certificate. His adoptive parents, who had been caring for him since birth, then formalised his adoption and applied for his citizenship on June 21, 2012 after completing the adoption process.

Almost two years later, however, they received a letter of rejection to his citizenship application that was made under Article 15A. He is now 18 and his lawyers said they will be bringing his case to the Federal Court.

“The home minister reviews cases on a case-to-case basis. If the child has no criminal record or is not a threat to national security, then by virtue of Article 15A read together with the Convention on the Rights of the Child, he must be given citizenship, because Article 15A is specially for child below age of 21,” Annou argued, referring to the international convention which Malaysia had signed and which requires the best interests of the child to be a “primary consideration”.

All discretionary

Alternatively, Mah said stateless children could try applying for permanent residence status, which if successful, would allow them some rights denied to stateless individuals such as to attend public schools and obtain employment.

“A citizen is entitled to a Malaysian passport and to vote in general elections. A stateless person will not have a Malaysian passport and cannot travel out of the country, even though he may be a permanent resident,” he said.

They would, nevertheless, be able to access many of the services that citizens take for granted, such as obtaining medical treatment, opening bank accounts, leaving and re-entering the country, and legally marrying, among others.

Siah noted, however, that permanent residency is again at the discretion of the Home Ministry.

Citing Clause 1(a) of Part II of the Federal Constitution’s Second Schedule read together with the Constitution’s Article 14(1)(b), family lawyer Goh Siu Lin said legitimate children born to citizens or Malaysian permanent residents would acquire citizenship by operation of law.

Forever an alien

If all of the above fails, however, a stateless child may become permanently trapped in limbo, with no country that recognises or accepts them.

“If their citizenship remains unresolved, they will forever become an alien in our country with no records of that person in existence in Malaysia other than the Birth Certificate (if they have one).

“They also cannot get married legally. If the mother is an illegal/alien, the child will also become one. It will become a vicious cycle where the illegal/alien’s children will also become stateless and are thus remaining in Malaysia illegally,” Siah said.

While some lawyers acknowledged that aliens are legally not allowed to stay in Malaysia and that those lacking documentation would always be liable to deportation, Mah clarified that this could not be done to the Malaysia-born children.

“No, stateless children in Malaysia do not get deported as they have nowhere to be deported to. They will remain in Malaysia as stateless individuals,” Mah said.

While the courts may deny citizenship bids by Malaysia-born children due to their ostensible failure to show documentary proof that they were not born citizens of other countries, the reality is, there is no knowing if other countries would recognise them as citizens.

It is unclear if the “lucky” stateless individuals who at least have a birth certificate from Malaysian authorities can actually apply for citizenship in any other country, with Mah and human rights lawyer Honey Tan saying it would depend on the laws of those nations.

Siah said stateless individuals could apply for citizenship in other countries as long as they agree to offer citizenship, but noted that “it all boils down to the mercy of the individual government”.

“As it stands now, our Malaysian government is rather heartless to keep these stateless children stateless,” he said.

Annou noted that most of his clients do not even think of becoming citizens elsewhere and are adamant about calling Malaysia their home.

“They all want to be citizens of Malaysia, they were born here, they are raised here, their father or mother is Malaysian and they practise the Malaysian way of life. In most cases, they want to be Malaysian citizens and they don’t think of becoming citizens elsewhere,” he said.