Constitutional citizenship must remain a real protection against childhood statelessness

Crib Foundation is deeply concerned by two recent Court of Appeal decisions involving children who have spent substantially their whole lives in Malaysia but remain without Malaysian citizenship.

One was abandoned as a young child and has never known who her biological parents were.

The other was born in a Malaysian government hospital to a Malaysian father, grew up in Malaysia and was issued a Malaysian international passport.

Despite their very different circumstances, both failed in their claims to citizenship by operation of law.

These decisions raise a question that extends far beyond the outcome of two individual appeals:

If section 1(e) of Part II of the Second Schedule to the Federal Constitution cannot protect children in circumstances such as these, when can it realistically apply?

Section 1(e) recognises as a citizen by operation of law a person born within the federation who was not born a citizen of another country. It is one of the constitutional mechanisms through which Malaysia addresses childhood statelessness.

The Constitution promises more than a theoretical protection. Its safeguards must remain real and effective in practice.

The Federal Court has already articulated the constitutional principles that should guide that inquiry.

In CTEB v Ketua Pengarah Pendaftaran Negara, although the majority decided the appeal on a narrower ground, members of the Federal Court emphasised that citizenship is closely connected to liberty and that constitutional provisions concerning citizenship must be read contextually and purposively.

The Constitution should not be approached through “pedantic and technical rules” or reduced to a narrow grammatical exercise. It is a living constitutional instrument whose guarantees must be understood in harmony with fundamental rights.

The Federal Court subsequently adopted that broader constitutional approach unanimously in CCH v Pendaftar Besar bagi Kelahiran dan Kematian. The court held that fundamental rights and provisions must be construed as broadly as possible, while provisions limiting those rights must be construed as narrowly as possible.

Constitutional provisions must be read as a whole, with regard to their purpose and intent, and their collective meaning harmonised rather than placed in conflict.

Most importantly, the Federal Court cautioned that a constitutional provision intended to protect abandoned children must encompass their actual plight. Otherwise, “the overarching intent of preventing statelessness would be defeated or rendered illusory.”

That principle should remain the constitutional starting point.

The two recent Court of Appeal decisions concerned different routes to citizenship, but both ultimately exposed the same evidential problem under section 1(e).

In Haritharan Mugunthan, the applicant was born in Perak to a Malaysian father and a Thai mother who later became untraceable. Because his parents were not married, his claim through his Malaysian father was met by the rule, as currently interpreted, that directs attention to the citizenship of the mother. His birth in Malaysia, Malaysian father, Malaysian passport, MyKid number, education and lifelong residence were insufficient. The court held that he had not established that he was not born a citizen of another country.

In Glorya Kuppa, the applicant was found abandoned at a bus station when she was about one year old. Her biological parents remain completely unknown. The court accepted that she was abandoned, but held that the presumption in section 19B did not apply because she was not a “new born child” when found. She also failed under section 1(e) because the identity and citizenship of her biological parents could not be established.

The Court of Appeal recognised that these applicants faced real evidential difficulty. It nevertheless held that a person relying on section 1(e) must prove that he or she was not born a citizen of any country. The absence of evidence of another citizenship was not enough. In practice, that inquiry turns on evidence concerning biological parentage, nationality and lineage at birth.

Crib is concerned that the cumulative practical effect of this interpretation is that section 1(e) may now operate only within a very narrow range of cases.

Children who have been abandoned, separated from their families or left without reliable records frequently have no means of proving who their biological parents were, what nationality those parents possessed, or whether the law of another country conferred citizenship upon them at birth. Yet those are precisely the facts they must now prove before the constitutional protection can operate.

The difficulty is stark in Glorya’s case. Her biological parents are unknown. There is no person from whom she can obtain documents, testimony or confirmation of nationality. The evidential gap is not of her making and cannot realistically be cured by her.

Haritharan’s case demonstrates the problem from the opposite direction. His Malaysian father was known and recorded, and his connections to Malaysia were documented. Yet he too could not satisfy section 1(e). If the constitutional door remains closed even where part of the child’s biological lineage is known and provable, the position of a wholly abandoned child is even more precarious.

A constitutional protection against statelessness should not depend upon evidence that the very children it exists to protect can never realistically obtain.

The Federal Court confronted a closely related evidential problem in CCH. It described as “quite illogical” the expectation that adoptive parents prove the negative fact that they did not know the child’s biological parents.

The court instead placed the investigative burden on the state once the factual basis for the constitutional presumption had been established. It emphasised that the Ministry of Home Affairs and the National Registration Department possess “all the important machinery of the State” to undertake appropriate investigations.

CCH did not determine the proper interpretation of section 1(e). Its reasoning on that provision was expressly left open. Its constitutional method, however, remains directly relevant: fundamental protections must be construed broadly, evidential burdens must reflect practical reality, and constitutional safeguards must not be interpreted in a manner that defeats their purpose.

The recent decisions therefore expose an urgent constitutional gap.

Section 19B protects an abandoned child only where the child satisfies the threshold description of a “new born child found exposed”.

Section 1(a) may be unavailable where the identity or constitutional status of a parent cannot be established.

Section 1(e), as presently interpreted, may also be unavailable because the same absence of parentage evidence prevents the child from proving that no foreign citizenship arose at birth.

The result is that a child may be too old when abandoned for section 19B, unable to establish a qualifying parent under section 1(a), and unable to prove the absence of foreign citizenship under section 1(e).

A safety net that catches no one is not a safety net.

It is no answer that these children may apply for citizenship by registration or naturalisation. Those routes are discretionary and granted as a matter of grace.

Citizenship by operation of law is different in kind. The Constitution confers it as a right, from birth, so that a child who belongs to no other country does not depend on discretion to escape statelessness.

In January 2026, Malaysia appeared before the United Nations Committee on the Rights of the Child in Geneva. In its concluding observations, the committee expressed serious concern at the absence of measures to prevent statelessness among abandoned children, children whose parents are unmarried, children whose mother is unknown while the father is Malaysian, and adopted children.

It also expressed concern that recent constitutional amendments contain provisions which, in its assessment, further aggravate the situation of stateless children.

The committee urged Malaysia to ensure the consistent application of the citizenship process and to adopt immediate and long-term measures to secure access to citizenship for all stateless children or children at risk of statelessness.

The children in these two appeals fall squarely within the categories the committee identified. Malaysia’s commitments must include ensuring that children are not left without a nationality because they cannot prove facts that are inherently unknowable.

Citizenship is not simply an administrative label. It is the legal foundation upon which a child accesses education, healthcare, employment, public services and full participation in society.

When constitutional citizenship becomes practically unattainable for those most vulnerable to statelessness, the consequences extend far beyond legal doctrine.

The constitutional conversation does not end with these two appellate decisions. Crib offers this statement as commentary on the constitutional principle and its wider consequences, and does not seek to influence the outcome of any pending or prospective appeal in the individual cases.

It is imperative that, pending any further appellate clarification, the constitutional principles affirmed unanimously by the Federal Court in CCH, and reflected in the observations of members of the court in CTEB, continue to guide administrative decision-making affecting children.

These decisions therefore extend well beyond the circumstances of Haritharan and Glorya. They are likely to shape the way future citizenship applications involving abandoned, undocumented and otherwise vulnerable children are assessed by the National Registration Department and the courts.

Unless addressed, the constitutional consequences may affect an entire class of children who are unable, through no fault of their own, to produce evidence of their parentage or nationality at birth.

For that reason, Crib considers this an urgent and critical constitutional issue. The protection of children against statelessness cannot depend on whether they happen to fall within a narrow factual category or possess evidence that is inherently impossible for many vulnerable children to obtain.

Crib therefore calls for:

• Continued judicial consideration of section 1(e) through the broad, purposive and anti-statelessness approach affirmed unanimously by the Federal Court in CCH, and reflected in the observations of members of the court in CTEB
• The National Registration Department and the Ministry of Home Affairs to administer citizenship applications consistently with the constitutional principles articulated by the Federal Court in CCH, and by members of the court in CTEB, pending any further appellate clarification, rather than adopting an approach which risks rendering section 1(e) practically unavailable to the very children it was intended to protect
• Reform of investigative and evidential processes in cases involving abandoned children and untraceable parents so that the state, with its superior investigative resources, bears an appropriate role in resolving evidential uncertainty
• Legislative intervention, where necessary, to ensure that no child born and raised in Malaysia is left permanently without a nationality because he or she cannot prove facts that no child could reasonably be expected to know. – Crib Foundation

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