Arif Hanafi Nor Hazani, Abdul Hakim Ahmad Turmizi, Nurul Husna Zaini, Khairunnajwa Rahmat Fauzi
Mahasiswa Fakulti Syariah dan Undang-undang

Malaysia has lately encountered several issues pertaining to restrictions on citizenship, which can be aggravated when competing concerns are prioritized over the child’s rights and best interests. As important as it is to secure the rights of the local citizens and preserve internal security and safety, the interests of the unprotected should not be trammelled. One of the groups of the vulnerable children affected by the conundrum are foundlings, or children found abandoned without information of parental backgrounds and whereabouts.

Part III of the Federal Constitution primarily sets multiple pathways for children to gain citizenship, mainly by operation of law, registration, and naturalization as provided by Article 14 to Article 19. The right to nationality for foundlings in particular is captured in Clause 19B of Part III of the Second Schedule of the Federal Constitution, under which ‘newborn child’ is the term used in the provision to address their citizenship right. Unless proven otherwise, a child found without parents shall be presumed to have been born to a mother with permanent resident status and by virtue of Article 14, the child would be a citizen automatically/by operation of law. Due to the absence of the birth information of the child, the day the child was found shall be the date the child was born.

In essence, the current law allows abandoned children to acquire citizenship automatically through legal procedures. However, there’s a proposed change in the law. The government wants to replace the embedded entitlement of citizenship by operation of law with citizenship by registration for foundlings. This will certainly exacerbate the existing plight of foundlings. Many may not realise that the practical implementation of the process of acquiring citizenship for the foundlings is already bogged down with difficulties because the National Registration Department (NRD) is not currently registering foundlings as citizens automatically. If the automatic citizenship is replaced with that based on registration, certain complications are expected to arise. Not all abandoned children are raised in welfare homes. The lack of legal and procedural understanding among adoptive parents, especially those with low education background might result in some children being stateless, lacking any official citizenship.

The removal of the provision will further prejudice the foundlings as they cannot supply their parents’ citizenship information to claim nationality under other provisions. Even if the child was born to foreign parents within the territory, the lack of available evidence to verify the required information will always be the stumbling block to meeting application requirements. Unless the principle of presumption applies, it is highly likely that a foundling may not be able to gain citizenship through the application process. Many states have long implemented the rule of presumption where a foundling shall be deemed to have been born in their territory unless proven to the contrary. Among these countries are the United Kingdom, Sweden, Egypt, Spain, Denmark, and Kuwait. Malaysia itself has this rule through Clause 19B of Part III of the Second Schedule of the Federal Constitution although it is restricted to only a ‘newborn child’. According to the UK committee, the child may be up to twelve months old and as for Canada, the foundlings shall have that privilege until seven years old.

While Section 19B of the Federal Constitution treats a discovered newborn child as to have been born to a mother with permanent resident status, Section 1(a) of Part II of the Second Schedule grants automatic citizenship by operation of law when a parent is a citizen or permanent resident at the time of birth. With another proposal aiming to get rid of Section 1(a) of Part II of the Second Schedule, not only the proven child of a permanent resident is affected by this but the foundlings as well.

Although Article 15A of the Federal Constitution may be invoked to claim the nationality of the foundling, it is highly discretionary. Looking at many cases of applications under Article 15A, the rate of successful claims has been very low. The heart-wrenching impact is that the affected children are forced to grow up effectively as stateless for having citizenship that is undetermined. In the case of Lew Yee Hong @ Liew Yee Hong & Anor v Ketua Setiausaha, Kementerian Dalam Negeri & Ors [2020] 8 MLJ 62, the application for a declaration of citizenship under Article 15A of the Federal Constitution was rejected by the Federal Government. The applicant sought for such declaration for his daughter, who was born before his marriage could be registered. By referring to the cases of Kuluwante and Madhuvita, Judge Faizah Jamaludin decided that it is the sole prerogative of the Federal Government to grant citizenship under Article 15A of the Federal Constitution. Hence, the decision not to entertain the application was held justifiable. In another case of Nalan a/l Kunji Kanan & Anor v Secretary General of Ministry of Home Affairs, Malaysia & Ors [2017] MLJU 1808, the definition of ‘special circumstances’ shall be determined within the scope the Minister himself may consider as special circumstances.

Foundlings without citizenship may be deprived of immediate access to public facilities including education, healthcare, and employment. Growing up as a stateless, foundlings have only the slightest chance of gaining access to government schools. Alas, the only alternative to a proper education is through private schools, which anyone knows is hardly affordable for many. As adults, they must be legal and have a permit to be recognised as an employee in this country. The prospect is highly uncertain if the child grows up as a non-citizen, especially without proper legal status.

The foundlings should continue to be protected because none of them deserves to be rendered a subject of abandonment and bear the painful consequences of not having a nationality. As concerned Malaysian students, we urge the Malaysian government as the ultimate duty bearer to step up and forward to truly safeguard the interests and well-being of foundlings as they do not have parents or anybody else to pass on citizenship that will unlock the key to access their rights as a child and as a human. We are blessed to celebrate our 66 years of independence. In bringing Malaysia to greater heights, let us be responsible and compassionate Malaysians. Our sovereignty will not be undermined by protecting these innocent souls.