A RECENT submission by the Attorney-General’s Chambers on the matter of citizenship has sparked interest.

Someone who does not have citizenship is called a stateless person. A stateless person is defined under the 1954 Convention Relating to the Status of Stateless Persons as someone who is not recognised as a national by any state under the operation of law.  It is to be noted that Malaysia is not a signatory to the convention. 

This brings us back to the question of why citizenship matters. To begin with, nationality or citizenship is a fundamental human right.

Being stateless deprives children of their right to education, healthcare services, employment, and more.

Malaysia is a signatory to the United Declaration of Human Rights (UDHR) and the Convention on the Rights of the Child (CRC). However, the government has placed a reservation under article 7, on the registration of the child’s birth and on the right to acquire a nationality. 

Article 7(1) 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 and as far as possible, the right to know and be cared for by his or her parents.”

Article 7(2) of the same convention states that it “State Parties to ensure the implementation of these rights in accordance with their national law and their obligations under the relevant international instruments in this filed, in particular where the child would otherwise be stateless.”

This is similarly found in Article 9(2) of the Convention on the Elimination of All Forms of Discrimination against Women, “where States Parties shall grant women equal rights with men with respect to the nationality of their children.”

Having said that, cases of whether a child should be granted the right to nationality or not, by the operation of law, remains a conundrum. 

For a child to be conferred a nationality by the operation of law, there are a few criteria that one needs to meet. This boils down to the jus soli (birthplace) and jus sanguinis, (the right to blood). It’s a settled principle, and it is clearly an adopted principle that lies under Article 14 (1)(b), of the Second Schedule, Section 1(a) of Part II of the Federal Constitution

The case that comes to mind is, in the case of CCH & Anor v Pendaftar Besar bagi Kelahiran dan Kematian, Malaysia [2022] 1 MLJ 71 (FC). In this case, the main crux of the discussion was whether Malaysian parents could confer their adopted child a Malaysian nationality via the operation of law. 

It was held that the child was entitled to be conferred citizenship via the operation of law since he had fulfilled the requirements under Article 14(1)(b) s1(a) of Part II read with s19B of Part III. 

Having said that, for a person to be conferred citizenship by the operation of law, the person must at least satisfy two criteria, in which they must show that they fall under the ambit of article 14(1)(b), which states that citizenship is to be granted to every person born in the federation on or after Malaysia Day, and having any of the qualifications specified in part II of the second schedule. 

Moving on, part II of the second schedule is subjected to the provisions of part III of the constitution.

Citizenship is to be granted to every person born within the federation of whose parents one at least at time of the birth either a citizen or permanent resident in the federation; and every person born outside the federation whose father is at the time of the birth a citizen and either was born in the federation or is at the time of the birth in the service of the federation or of a state; and every person born within the federation who is not born a citizen of any country.  

Part III is a supplementary provision to close the gap if there are questions arising from parts I and II. It’s not necessary to invoke it unless necessary.  

When one can prove the criteria above, the question of jus soli and jus sanguinis would presumably be established. If jus soli is proved, then it is presumed that jus sanguinis has also been established. It is not necessary to show the existence of both, nevertheless proving one will be sufficient. 

Thus, it is again stressed that statelessness is against fundamental rights, and the decision in CCH’s case has shown how the conundrum can be overcome, especially in this pressing issue.  

Nevertheless, this once again boils down to how one interprets the provision embedded in the Federal Constitution. – July 4, 2022.

* Matilda George reads The Malaysian Insight.

* This is the opinion of the writer or publication and does not necessarily represent the views of The Malaysian Insight. Article may be edited for brevity and clarity.