Stateless girl wins in court again
Published on: Wednesday, February 16, 2022
By: Malay Mail
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With the Court of Appeal today unanimously upholding the High Court’s decision, this would mean the High Court orders for the girl to be issued a citizenship certificate and identification card would still stand.
Kuala Lumpur: The Court of Appeal unanimously decided that it was correct to declare a 15-year-old girl born in Perak — to a Malaysian father and Filipino mother — as a Malaysian citizen.Court of Appeal judge Datuk Gunalan Muniandy, who read out a three-judge panel’s brief judgment, said the High Court was correct in deciding in 2019 to recognise the girl as a Malaysian citizen.
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Gunalan dismissed the government’s appeal against the High Court’s recognition of the girl as a Malaysian citizen.
“In our judgment, the learned High Court judge had interpreted the law correctly and appreciated the facts before her in coming to the decision,” the judge said.
“We do not agree with the respondents that the judge had erroneously construed the Articles of the Federal Constitution and Second Schedule before arriving at her decision and making the orders against the respondents. Therefore in our considered view, there was no clear error of fact or law in the learned High Court judge’s judgment.
“We accordingly are inclined to conclude there are no merits in this appeal, which is hereby dismissed with no order as to costs,” the judge said in the delivery of the decision through the video-conferencing platform Zoom.
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The Court of Appeal panel was chaired by Datuk Seri Kamaludin Md Said, while judge Datuk Vazeer Alam Mydin Meera was also on the panel.
The High Court had on May 2, 2019 declared that the girl — who would be 13 that year — is a Malaysian citizen by operation of law under Article 14(1)(b) of the Federal Constitution, and directed for a citizenship certificate and identification card to be issued to her.
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With the Court of Appeal unanimously upholding the High Court’s decision, this would mean the High Court orders for the girl to be issued a citizenship certificate and identification card would still stand.
When contacted, Annou Xavier, one of the lawyers for the girl, told Malay Mail: “With today’s Court of Appeal decision, I hope the Home Ministry will issue an identity card stating ‘Warganegara’ to my client without delay.” Warganegara is the Malay term for citizen.
Senior federal counsels Liew Horng Bin and Nur Idayu Amir, who represented the Malaysian government and two other respondents, were also present at Tuesday’s Zoom session.
The girl was born in Perak in November 2006 with a birth certificate stating her status to be “Bukan Warganegara” (non-citizen). She will be turning 16 later this year, and has virtually been waiting her entire life for Malaysia to recognise her as a citizen.
The girl’s Malaysian father had made multiple attempts throughout an eight-year period from February 2008 to August 2016 ― which included years of waiting for the National Registration Department’s (NRD) to respond ― to seek his daughter’s recognition as a Malaysian citizen.
The Malaysian father had also carried out a DNA test, and the Department of Chemistry Malaysia’s July 18, 2014 report confirmed that he is the girl’s biological father.
Although the High Court had on May 2, 2019 ordered for the girl to be issued with a Malaysian citizenship certificate and the MyKad identification card, the girl did not receive these documents as the government and the two other respondents filed an appeal on May 27, 2019 to the Court of Appeal.
If the Malaysian government does not file for an appeal at the Federal Court against the Court of Appeal decision today favouring the girl, the government, NRD and the Home Ministry would have to comply with the High Court order to issue the citizenship documents to the Perak-born girl in recognition of her Malaysian citizenship.
This is a crucial point as the government had sought to rely on Section 17 in Part III of the Second Schedule of the Federal Constitution ― which 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 ― to argue that the girl should not be recognised as a Malaysian.
The government had argued that Section 17 means that the girl should follow her non-Malaysian mother’s nationality due to her illegitimate status at birth, despite her having been born in Malaysia.
The High Court judge Datuk Faizah Jamaludin however concluded that Section 17 does not apply to the Perak-born girl as she has been legitimised after her parents’ marriage was registered, and that this meant she fulfilled the conditions under Article 14(1)(b) and Section 1(a) of Part II of the Federal Constitution’s Second Schedule to be a citizen by operation of law.
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, while the Section 1(a) condition provides that every person born in Malaysia —— with at least one Malaysian or permanent resident parent at the time of their birth —- qualifies to be a Malaysian citizen.
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