Citizenship and Nationality: What are "Stateless" and "Registration under Section 13" Children?

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asked on Mar 27, 2019 at 11:18
edited on Jun 21, 2019 at 22:14
Reference: Section 13 of Births and Deaths Registration Act 1957 [Act 299].


Why Malaysia-born illegitimate children with foreign mothers are stateless

Published 4 hours ago on 27 March 2019

By Ida Lim

KUALA LUMPUR, March 27 — The Malaysian government does not recognise as citizens children born out of wedlock in Malaysia to Malaysian fathers and foreign mothers, which leaves many of them stateless or without a nationality.

But why? To understand this, let’s have a quick look at the Federal Constitution. (Watch out for the plot twist below).

How to qualify for citizenship
There are a few ways where one can be a Malaysian, including naturalisation; by applying, or operation of law (which means you don’t have to apply and you automatically become a citizen).

Under Article 14(1)(b) of the Federal Constitution, every person born after Malaysia was formed is deemed a citizen by operation of law, if they fulfill any of the conditions in Part II of the Second Schedule of the Federal Constitution.

There are five conditions for citizenship in Section 1 of Part II of the Second Schedule, with three of them covering those born outside Malaysia (with one specifically on Singapore), while the remaining two are for those born inside Malaysia.

The Section 1(a) condition for citizenship applies to those born within Malaysia with at least one parent being either a Malaysian or permanent resident at the time of the person’s birth.

So when you have a child born in Malaysia to a Malaysian man and a non-Malaysian woman even if their marriage was not registered yet, you would think the child should automatically be considered a Malaysian.

But that is not so according to the government’s legal position based on current laws.

It’s because of this tiny provision called Section 17 of Part III of the Second Schedule of the Federal Constitution, where the phrase “one of his parents” or terms “parent” or a “person’s father” for an illegitimate person will be interpreted as referring to his mother. The government’s view is that provision applies to Part II of the Second Schedule above. (Remember this Section 17).

In other words, if you were born before your Malaysian father and non-Malaysian mother are legally married, the government’s stand is that Section 17 means that you will adopt your non-Malaysian mother’s citizenship from her country of origin and you will not be entitled to follow your Malaysian father’s citizenship.

On the flip side, the current legal position by the government in Malaysia is that children born locally to a non-Malaysian man and Malaysian woman before their marriage is registered will automatically be deemed a Malaysian.

In these two scenarios of marriages between two individuals of different nationalities, all that has changed is just this: The gender of the parent with Malaysian citizenship.
And this is what civil society and lawyers are calling out as laws that discriminate based on gender.

On Monday, Deputy Home Minister Datuk Mohd Azis Jamman said illegitimate children born to a Malaysian father and non-Malaysia mother could apply for citizenship via the Federal Constitution’s Article 15A, while also saying that it was the parents’ responsibility to make sure their children who are considered non-Malaysians have the relevant identification and travel documents before they turn 21.
Azis also said that illegitimate children have to bear the problems resulting from their parents’ failure to register their marriages before birth, urging Malaysians to register their marriages.

Article 15A provides for the federal government’s special powers, where it can register anyone below the age of 21 as a citizen in “special circumstances as it thinks fit”.

But Malay Mail yesterday published accounts from lawyers on the agonising reality that their clients who try to apply under Article 15A face: long wait that can go up to five years and rejections without reasons given by the government. All that while their children steadily grow closer to age 21.

Alternatives to Article 15A
So if the Article 15A route is so difficult, are there other ways where illegitimate children born in Malaysia can obtain official recognition as Malaysian citizens?

Lawyer Larissa Ann Louis said parents could alternatively apply for citizenship for their children via Section 1(e) of Part II of the Second Schedule, which says every person born in Malaysia and who is “not born a citizen of any country” would qualify to be a Malaysian.

The federal government frequently argues in court cases that those seeking citizenship must prove that they are truly stateless by showing they have not obtained citizenship from their foreign mother’s home country.

The government has also said there are no “stateless” persons in Malaysia in its records, as it only records whether a person born here is a citizen or non-citizen.
But lawyers say that their clients only want to be Malaysians and have not sought citizenship elsewhere, as they have lived their whole lives in Malaysia and are familiar with local cultures and languages.

Lawyer Raymond Mah had in the past also pointed out to Malay Mail that Section 1(e) should be read together with Section 2(3) of Part II of the Second Schedule, which he said makes it clear that Malaysia-born children who do not obtain citizenship from any other country within a year of their birth are Malaysian citizens.

For those who fail in their Article 15A applications, Mah said that there may be grounds to go to the courts to seek a declaration of citizenship under Article 14, especially when the child is born in Malaysia and is not a citizen of any other country.

“I think the obligation of parents to register their marriage is a separate issue from the problem of statelessness. In my view, JPN (National Registration Department) should apply paragraph 1(e) of Part II of the Second Schedule of the Federal Constitution in favour of the child, particularly when the child is born in Malaysia and is not a citizen of any other country. Paragraph 1(e) was intended to avoid the problem of statelessness among children born in Malaysia,” he told Malay Mail.

Mah said the National Registration Department (NRD) should apply Section 1(e) initially at the point when it issues the birth certificate, saying that the NRD “should have a process by which they can review or reconsider the status of citizenship.”

He also said the NRD should not oppose court applications based on Section 1(e) if applicants fulfill the criteria stated.

Mah said NRD should invite and consider applications for the recognition of citizenship under Section 1(e) by providing forms or avenues for such applications, but noted: “To my knowledge, they do not currently do that. Hence, the only option is to take the matter to court.”

Maalini Ramalo, senior manager of Development for Human Resources for Rural Areas (DHRRA) Malaysia which assists the public in citizenship cases, noted that stateless individuals who are children born out of wedlock, or who were adopted or abandoned at birth in practice only have the option of applying under Article 15A.

She said these categories of stateless individuals actually fit in the Article 14(1)(b) category of being entitled to citizenship and that such citizenship confirmation forms are available, but claimed that the NRD does not allow them to apply using such forms.

She said all stateless applicants with either parent being a Malaysian are instead directed to apply under Article 15A.

Other than the Section 1(e) route, Mah highlighted that the child can be entitled to citizenship by operation of law if the parents subsequently register their marriage after the child’s birth.

With a child legitimised by the subsequent marriage, Section 17 would no longer apply and the child could then take on either parent’s citizenship.

“Once the marriage is registered, the parents can legitimise the birth under the Legitimacy Act and the child is entitled to citizenship. No need to apply under Article 15A,” he said.
Lawyer Ranee Sreedharan said the Court of Appeal had in a judgment dated November 2, 2017 ruled that her client M* — who was born while her Malaysian father and non-Malaysian mother had yet to marry — had a right to citizenship by operation of law under Article 14(1)(b) of the Federal Constitution.

Ranee explained to Malay Mail the Court of Appeal’s ruling ([2018] 1 MLJ 307), noting among other things: “However, since her parents had subsequently married, Section 4 of the Legitimacy Act applied and she was legitimated from the date her parents were married, and as a legitimate person she was entitled to rely on her father’s citizenship status.”

Let’s change the law
Larissa questioned the lack of gender equality when it is insisted that illegitimate children have to take their mother’s citizenship, despite the guarantee of equality and non-discrimination to Malaysians under Article 8 of the Federal Constitution.

She believed that there should be amendments to the Federal Constitution to resolve this problem, particularly to Section 17 of Part III of the Second Schedule.
“Of course, it should state either parent and not the mother’s citizenship only. Article 8 stated equality but it’s clearly not reflected here. What more if the father is a Malaysian. He has rights too.
“And most of the cases, it’s the fathers who are citizens hence so many cases. This is the root of all unregistered marriage problems.
“Because most of the time the mother is the foreigner hence why they will say the child is NOT stateless because (they) can get from the mother. But in reality, the child has always been in Malaysia and so has the foreign mother,” she said.

Mah also suggested that the government amend the Federal Constitution, possibly by removing Section 17 of Part III of the Second Schedule, “so that the child can follow the father’s citizenship even if the parents are not married.”

Maalini from DHRRA said that the government cannot “solely place the burden” on the parents’ shoulders when it comes to addressing problems linked to children’s rights to a nationality.
“Instead, review policies and laws to bring solutions to end the plight of many young adults who have no other country to claim. To prevent future reoccurrences, enough awareness should be raised. It’s time to govern with solution,” she said.

Maalini said the government should either carry out law reforms, or completely drop the reliance on provisions that perpetuate gender inequality and cause statelessness.
She cited the example of Section 17 which bars men from transferring their nationality to their children who are born out of wedlock and with such children forced to take on the mother’s nationality, as well as the discriminatory practice for children born overseas where Malaysian fathers can register their children for citizenship under Article 14 in a “fairly streamlined process which may be completed in a few days” while Malaysian mothers are required to apply under Article 15(2) for children below the age of 21.

“Instead NRD should allow both father and mother to transfer nationality to their children born inside/outside of Malaysia on an equal basis under Article 14 of the Federal Constitution,” she said.

Lawyer Simon Siah noted that Malaysia had signed the United Nations’ Convention on the Rights of the Child, but has a reservation on a clause which deals directly with citizenship.

“I would propose that the government lift the reservation to Article 7 of the Convention of the Child Rights (CRC) on registration of nationality and name of child, and to subsequently amend Article 15A (of the Federal Constitution) to incorporate Article 7 of the CRC,” he said, adding that Article 15A could be amended to say citizenship shall be granted to whoever is born in Malaysia (regardless of whether their parents were legally married) or at the very least where either parent is a Malaysian.

Malaysia had said Article 7 would only apply to Malaysia if it is in line with the Federal Constitution, national laws and the Malaysian government’s national policies.

Among other things, Article 7 of the CRC states that a child “shall be registered immediately after birth and shall have the right from birth to a name, the right to acquire a nationality.”

Article 7 also says that signatory countries shall ensure they implement these rights in line with their own laws and international obligations, especially if failure to do so makes the child stateless.
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answered on Mar 27, 2019 at 23:11
edited Oct 4, 2019 at 16:57

Reality check for Malaysia-born stateless children on ‘special citizenship’ route

KUALA LUMPUR, March 26 — Parents have been told that they can apply for citizenship for their stateless Malaysia-born children using a special pathway under Article 15A of the Federal Constitution, but how does this play out in the real world?

Here’s a quick reality check, based on what lawyers told Malay Mail:

But first up, what is Article 15A and why is this important?
Deputy Home Minister Datuk Mohd Azis Jamman had in Parliament yesterday said children born to a Malaysian father and foreigner mother before their marriage is registered, are not Malaysian citizens, but they can apply to the National Registration Department (NRD) for citizenship under Article 15A and that such applications would be “considered” if constitutional and legal requirements are met.

Article 15A provides for the federal government’s special powers, where it can register anyone below the age of 21 as citizen in “special circumstances as it thinks fit”.

Azis also said: “It is the full responsibility of parents or guardians to handle the personal identification document and travel document with the country of origin of children who have the status of non-citizens before they become 21 years old, to avoid issues of invalidly being in this country.”
But it is not as simple as it sounds. And it really is not because the parents have not put in any effort.

The clock is running
The important thing about Article 15A is that it has a deadline of age 21 for anyone seeking to be recognised as a Malaysian.
For this citizenship pathway, that is a race against time.

Lawyers told Malay Mail of how their clients have to face the uncertainty in the wait that can drag on for years. And it often ends up in failure without them knowing why or what they could rectify or do to succeed in the next round.

Lawyer Larissa Ann Louis said her clients usually had to wait a minimum of one year for the government to reply to their Article 15A applications.

“They make it sound like you will get an answer immediately or even after a month or two or six, but the reality of the situation is there is a gap of close to even three years before they get a decision, which will most of the time be a rejection.

“By that time, they are close to 21 probably. So the parents are stuck with a decision if they should re-apply or wait or go to court,” she said.

What makes matters worse is that some parents have a late start in making such citizenship applications, with some doing so after realising the problem when applying for the identification card MyKad issued to Malaysians at age 12 or when enrolling their children in primary schools.

The rejection letters always have either “TIDAK BERJAYA” (unsuccessful) or “DITOLAK” (rejected) stated in bold, with no reasons given, Larissa said.

In a rare example, the first rejection for a client born to a Malaysian father and Filipino mother had carried the reason of unregistered marriage, but his second application was rejected with no reason given. He later obtained his citizenship after going through a legal battle.

In another case also involving a child born (in Perak in 2006) to a Malaysian father and Filipino mother, the first application in 2008 received no response, while the second application in 2011 was rejected in 2012, and the third application in 2013 rejected in 2016.

Maalini Ramalo, senior manager of non-governmental organisation Development for Human Resources for Rural Areas (DHRRA) Malaysia, said the average time for the government to reply on Article 15A citizenship applications is between two and three years.

“However, in recent times we have seen applications can stretch to more than four years awaiting response from KDN (Home Ministry).

“In thousands of cases DHRRA has assisted to date, among many Articles available for citizenship application, Article 15A has one of the lowest success rates along with Article 19 (naturalization). Further, cases are never given reasoning for the rejections,” she said.

Approval process opaque, subjective
Lawyer Raymond Mah said it is very difficult to succeed in an Article 15A application as most are rejected with no reasons given, noting: “There are no set guidelines for the approval of Article 15A applications, and the approval process is completely opaque and subjective.”

“Applicants tell us that they have to wait for two to three years (or even up to five years) to get a response to an Article 15A application. The response is typically in the form of rejection without reason. When applicants inquire as to the reason for the rejection, no reasons are supplied and they are simply invited to apply again and again,” he said.

Lawyer Simon Siah said no timeframe is given for the government to reply to Article 15A citizenship applications and applicants who call to follow up will be told to just wait.

“Article 15A is the final resort administratively. There is no other provision more powerful than this because this is the only provision for minors to obtain their citizenship based on the discretion of the minister.

“This Article 15A can even apply for children who are born of any circumstances such as if the identity of the parents is unknown,” he said.

“The minister does not even have to give the reason for rejection because the citizenship under Article 15A is his discretion alone.”

Maalini said Article 15A is not an easy route to citizenship, as it depends solely on the home minister’s discretion with no clear basis of under what “special circumstance” the approval is given.

“However, it can be a practical solution if the government has genuine intention to protect children whose parents (where) one is at least a Malaysian citizen. It is a matter of political will,” she said.

For those who failed in their Article 15A applications, Maalini noted that some choose to launch lawsuits.

“A few had opted to file cases at court but the process is lengthy and costly, with no successful precedents set at the Federal Court to date as parties opted to settle out of court,” she said.

Malaysia’s highest court almost had its chance recently to finally clarify important questions on citizenship for stateless persons, but the Home Ministry and the government granted citizenship to five applicants who filed lawsuits to be recognised as citizens just before the cases could be heard.
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answered on Mar 27, 2019 at 23:19
edited Oct 4, 2019 at 16:58

Register marriages to avoid children becoming stateless, deputy home minister tells parents

KUALA LUMPUR, March 25 — It is the duty of parents to register their marriages before their children are born to enable them to qualify for Malaysian citizenship, Datuk Mohd Azis Jamman said in Parliament today amid a resurgence of stateless woes. 

Citing Article 15A of the Federal Constitution, the deputy home minister also gave an assurance that registration for citizenship is still open to children born out of wedlock after their parents have certified their marriage.

“It is the responsibility of the parents or guardians to arrange the identification documents, of travel documents for non-Malaysian children, before their child turns 21 years old, to avoid being entangled in issues of statelessness,” he said during Question Time.

“If the father is a foreigner and the mother a Malaysian, whether their marriage has been registered or not, the child will still be a Malaysian,” he said.

However, he said the law does not currently recognise a child as Malaysian even if his father is Malaysian but his mother is of a different nationality.

Azis was answering questions to his ministry in the Dewan Rakyat this morning and was asked to elaborate on the situation of stateless children whose parents’ marriage had not been registered.

He said he was aware of many such cases in the country but reiterated that the burden is on parents to properly document their children’s births.

“The issue here is many marriages are not registered, and when it’s not registered, their child would be the one born having to bare all the issues.

“If you’re brave enough to get married, be brave enough to register and take responsibility; later on, the implications would fall on the child,” he said.
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answered on Aug 1, 2019 at 14:50
edited Oct 4, 2019 at 16:59

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answered on Aug 3, 2019 at 14:39
Discussions can be found here :-
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answered on Sep 29, 2020 at 06:44
News on Malaysian Citizenship
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