AS we enter the new year, with a new government to boot, there is a crying need to turn the sad chapter on Malaysia’s lack of caring attitude to its most vulnerable populace.
I am referring to the plight of children whose citizenship status remains in limbo because of their birth origin.
These children are accorded no citizenship status and are disqualified from functioning as normal human beings deprived of access to any facility such as education, health care, employment, passport and multifarious other amenities at the same level as a Malaysian child. Let’s look at the specific troubling situations.
Child born out of wedlock
The direst is that of a child born out of wedlock, with the child considered illegitimate.
Under a provision of the Federal Constitution, the child takes on the nationality of the mother, which is all well and good as the mother will usually be the one naturally attached to the child and undertake his caring and nurturing.
The problem arises if the mother (say an Indonesian or Thai) leaves the country and cannot be traced as recurs ever so often in this country.
The child is left in Malaysia with notionally foreign citizenship, grows up in Malaysia and knows no other attachment or anybody else.
Where is the child expected to go and how does he live in this country with no citizenship status?
Our courts have held that it is just too bad. The upshot? They grow up with no rights whatsoever, eclipsed into an invisible existence. In reality, is not the child abandoned?
An enlightened Federal Court decision held that a child discovered to be abandoned (e.g, dumped in bins, public or school toilets, churches or mosques) is accorded citizenship by operation of law unless the authorities can prove otherwise.
Should not this reasoning and decision be extended to the “illegitimate” child in the situation described above?
This infirmity of the non-status of the child born out of wedlock continues even if the biological Malaysian father is prepared to take on the child as his by a formal court-sanctioned adoption.
But some court decisions say that the time at which you determine the child’s status is at the date of the application for citizenship status and as he was illegitimate at birth, that status remains and is perpetuated.
This same situation remains even if the parents subsequently marry.
Any parent can petition the court for the legitimisation of the child.
However, the child’s status remains before the application and is determined at the time of the birth – that is, he remains a non-citizen if the mother is a foreigner.
So, subsequent adoption of the child does not solve the vexed problem of the child’s non-citizenship status.
Born overseas to a Malaysian mother
There is also the problem of a child born overseas to a Malaysian mother and a foreign spouse. The child has no citizenship status.
In the same situation, the child of a Malaysian father acquires citizenship automatically by operation of law.
Patent discrimination now awaits adjudication before the Federal Court.
The newly-minted ministers in charge of the relevant portfolios – Minister in the Prime Minister’s Department (Law and Institutional Reform) Datuk Seri Azalina Othman and Home Minister Datuk Seri Saifuddin Nasution – have committed to erasing this discrimination, consonant with their declared manifestoes in the recent general election.
But as this tale narrates, the hapless child’s problem goes beyond this situation and requires the government to provide a speedy solution, perhaps through a high-powered independent commission.
After all, the child is an innocent victim and, as will be readily acknowledged, did not choose to be born in unfortunate circumstances.
Gurdial Singh Nijar a former law professor, is President of the National Human Rights Society (Hakam). Comments: letters@thesundaily.com
