Key Points
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Research suggests abandoned babies in Malaysia are granted automatic citizenship under Section 19B, but challenges exist in documentation and legal processes.
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It seems likely that many face hurdles like lack of identity documents, affecting access to education, healthcare, and employment.
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The evidence leans toward success stories, like Hashimah’s, showing legal advocacy can secure citizenship, but statelessness remains a significant issue.
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Migration options for stateless individuals are limited, with uncertain prospects for citizenship in other countries.
Introduction to Citizenship for Abandoned Babies
Abandoned babies in Malaysia face a complex journey to secure citizenship, which is crucial for accessing basic rights. Under Malaysian law, they are generally granted automatic citizenship to prevent statelessness, but the process isn’t always smooth. Let’s break this down into key areas to understand their situation better.
Legal Framework and Process
The law, specifically Section 19B of Part III of the Second Schedule of the Federal Constitution, presumes that an abandoned newborn’s mother was a permanent resident where the child was found, granting automatic citizenship. This was reaffirmed in 2024 when the government dropped plans to amend this, maintaining the status quo. However, proving this status can involve legal battles, as seen in court cases like CCH & Anor v Pendaftar Besar bagi Kelahiran dan Kematian, Malaysia (Highest Court Rules In Favour of Citizenship For Child Abandoned in Malaysia), where the Federal Court ruled in favor of citizenship.
Reported Cases and Illustrations
Reported news shows the scale of the issue, with about 100 babies abandoned annually, many found dead in distressing locations like rubbish bins or drains. A success story is Hashimah, who, after being stateless for 39 years, gained citizenship in 2022 with legal help (KL-born woman, abandoned as a baby, finally gets Malaysian citizenship at 39). This contrasts with cases where babies remain undocumented, facing lifelong challenges.
Challenges and Plight
Even with legal provisions, abandoned babies often struggle with documentation, affecting access to education, healthcare, and jobs. Stateless individuals face social stigma, limited healthcare access (no subsidies), and inability to travel, as highlighted by UNHCR reports (Ending Statelessness in Malaysia). For those who fail to obtain citizenship, life is marked by exclusion and poverty.
Migration and Other Options
For stateless individuals, migration is a limited option. They might try to claim citizenship in neighboring countries like Indonesia or Bangladesh, but this is challenging without documentation. Applying for asylum elsewhere, like Canada or Australia, is possible but uncertain, with no guaranteed citizenship, making it a last resort rather than a solution.
Detailed Analysis of Abandoned Babies and Citizenship Under Malaysian Law
This portion of our article provides a comprehensive examination of the topic, offering detailed legal analysis, reported cases, and exploration of challenges and options. Here, all aspects of the query are addressed, including citizenship processes, success stories, and migration prospects.
Background and Context
Abandoned babies in Malaysia represent a significant social and legal challenge, with statistics indicating an average of 100 cases annually, many resulting in the death of the infant. These babies are often found in distressing circumstances, such as rubbish bins, toilets, drains, or graveyards, reflecting the desperation of their circumstances. The issue has been a persistent concern, with 424 cases reported in 2021, of which 283 involved babies found dead, according to police reports (In Malaysia, an average of nine babies reported abandoned in a month, half found dead). This highlights the urgency of addressing both the immediate welfare and long-term legal status of these children.
The focus on citizenship is critical, as it determines their access to education, healthcare, employment, and other fundamental rights. Malaysia’s legal framework aims to prevent statelessness, but the process is not without challenges, especially given the lack of parental documentation and the bureaucratic hurdles involved.
Legal Framework and Citizenship Process
Under Malaysian law, abandoned babies are granted automatic citizenship to ensure they are not left stateless. The key provision is Section 19B of Part III of the Second Schedule of the Federal Constitution, which states that if a newborn is found exposed or abandoned, it is presumed that the child was born to a mother who was permanently resident in the place where the child was found. The date of finding is taken as the date of birth, and the burden of proof lies on anyone challenging this presumption to show otherwise. This is supported by Article 14(1)(b) and Section 1(a) of Part II of the Second Schedule, which outline citizenship by operation of law.
Recent developments in 2024 saw proposed amendments to citizenship laws that would have revoked automatic citizenship for foundlings and stateless children, sparking significant controversy. Critics, including former deputy law minister Ramkarpal Singh, argued that such changes would be regressive and contradict Malaysia’s commitment to reducing statelessness, as well as international obligations under the United Nations High Commissioner for Refugees (UNHCR) goals (Hold off on citizenship law amendments affecting foundlings and abandoned babies, ex-deputy law minister Ramkarpal says). However, in March 2024, the government decided to drop these plans, maintaining the status quo under Section 19B, as reported by MalaysiaNow (Government drops plan to deny automatic citizenship to foundlings, stateless children). This decision was seen as a victory for human rights advocates, ensuring a safety net for abandoned babies.
The process of obtaining citizenship, while automatic in theory, can involve practical challenges. For instance, the lack of parental documentation means that authorities must rely on the presumption under Section 19B, which can be contested, leading to legal battles. The case of CCH & Anor v Pendaftar Besar bagi Kelahiran dan Kematian, Malaysia in November 2021 is a significant precedent, where the Federal Court ruled in favor of citizenship for an abandoned child by interpreting these provisions, emphasizing that the burden of proof lies with the challenging party (Highest Court Rules In Favour of Citizenship For Child Abandoned in Malaysia). This case set a standard for future legal proceedings, protecting adopted abandoned children and clarifying the Ministry of Home Affairs’ responsibilities.
Reported Cases and Illustrations
To illustrate the scale and nature of the issue, consider the following reported incidents:
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In 2021, Bukit Aman reported 424 cases of baby dumping, with 283 babies found dead, often in residential areas, mosques, or toilets, highlighting the desperate circumstances (In Malaysia, an average of nine babies reported abandoned in a month, half found dead).
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A specific case in March 2010 involved a newborn baby girl found abandoned in a rubbish dump at a shopping mall in Ipoh, Perak, discovered by a cleaner (Growing problem of abandoned babies in Malaysia).
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Another incident on Valentine’s Day 2010 saw the charred remains of a baby found in a rubbish bin in Kuala Krai, Kelantan, underscoring the tragic outcomes (Baby Abandonment in Malaysia).
These cases reflect the societal and personal struggles driving baby abandonment, with many infants not surviving to face the citizenship process. However, there are success stories that offer hope. Hashimah, abandoned as a baby in Kuala Lumpur, lived stateless for 39 years before securing citizenship in 2022, supported by Lawyers for Liberty. Her case, decided by the High Court, was based on the 2021 Federal Court precedent, demonstrating the power of legal advocacy (KL-born woman, abandoned as a baby, finally gets Malaysian citizenship at 39). Another example is a 17-year-old child, also stateless and adopted, who won citizenship through the same legal route, as noted in the same report.
Legal Challenges and Lifetime Implications
Despite the legal framework, abandoned babies face numerous challenges in obtaining and maintaining citizenship. The lack of documentation is a primary hurdle, as these children are found without parents, making it difficult to establish identity or parentage. This can delay birth registration and the issuance of identity documents, which are essential for accessing education, healthcare, and employment. Adoptive parents may also face bureaucratic delays, especially if they are not Malaysian citizens, requiring them to navigate complex legal processes to secure citizenship for their adopted children.
Statelessness exacerbates these challenges. Without citizenship, individuals are denied access to national schools, limiting educational opportunities. They can access public healthcare but are excluded from subsidized rates, increasing financial burdens. Employment is another barrier, as stateless individuals cannot obtain work permits, often resorting to informal or exploitative work. They also face social stigma, living on the fringes of society, and are unable to travel due to the lack of passports or travel documents.
International conventions, such as the 1954 UN Convention Relating to the Status of Stateless Persons, which Malaysia has not ratified, highlight the global recognition of these issues. However, Malaysia’s policies, like the Zero Reject Policy for education, still require one parent to be a citizen with an identification card, excluding stateless children without such documentation (Statelessness in Malaysia – Report). This underscores the need for domestic legal reforms to align with international standards.
Plight of Stateless Individuals
For those who fail to obtain citizenship, the plight is severe. Statelessness affects not only abandoned babies but also children of mixed-nationality marriages, indigenous peoples, and migrants, with an estimated 117,070 stateless people in Malaysia by the end of 2023, according to UNHCR (Stateless Hub – Malaysia). The consequences include:
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Challenge
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Impact
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Lack of Education Access
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Barred from national schools, limiting future prospects
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Healthcare Limitations
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Access public healthcare but no subsidies, increasing financial burden
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Employment Barriers
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Cannot obtain work permits, often resort to informal or exploitative work
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Travel Restrictions
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Lack of passports or travel documents, restricting movement
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Social Stigma
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Viewed as outsiders, facing discrimination and marginalization
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Legal Limbo
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Trapped in uncertainty, unable to claim rights from any country
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This table illustrates the multifaceted impact of statelessness, emphasizing the importance of citizenship for a full life. The story of undocumented children in Sabah, where one in three people struggles for legal identity, exemplifies these challenges, affecting access to education, healthcare, and opportunities (Documenting the Undocumented: The Struggle for a Legal Identity).
Migration Options and Prospects
For stateless individuals unable to secure citizenship in Malaysia, migration is a limited and complex option. Many have ties to neighboring countries like Indonesia, Bangladesh, or Myanmar, from where their parents or ancestors originated. In theory, they might regularize their status or claim citizenship there, but this is challenging without documentation, especially for those born in Malaysia with no connection to their parents’ home countries.
For truly stateless individuals—those without any claim to another nationality—obtaining citizenship elsewhere is extremely difficult. Countries like Canada, Australia, and some European nations have refugee resettlement programs, but these are typically for recognized refugees fleeing persecution, not stateless individuals per se. Stateless persons would need to apply for asylum or seek refugee status, a process that is lengthy, uncertain, and often unsuccessful, with no guaranteed outcome. For example, the Netherlands has a procedure for determining statelessness, allowing applications for citizenship after three years’ legal residence, but this requires legal presence and documentation, which many lack (Statelessness | Dutch citizenship).
Given these barriers, migration is not a viable solution for most stateless individuals from Malaysia. The focus should remain on securing citizenship within Malaysia, where they were born and have lived, to ensure access to rights and opportunities.
Conclusion and Call to Action
The issue of abandoned babies and their citizenship in Malaysia is a complex interplay of legal, social, and humanitarian dimensions. While the current legal framework under Section 19B provides for automatic citizenship, practical challenges persist, requiring legal advocacy and societal support. Success stories like Hashimah’s demonstrate the potential for change, but for those who remain stateless, the consequences are profound, affecting every aspect of their lives.
It is imperative for society to address this issue with compassion and determination. By raising awareness, advocating for supportive policies, and ensuring alignment with international conventions like the 1954 UN Convention, we can protect the most vulnerable. Let us strive to create a Malaysia where every child, regardless of their circumstances of birth, has the right to a nationality and the opportunities that come with it.
Disclaimer
This article was prepared for educational and / or informational purpose. Please do not act on its contents without first consulting with a licensed lawyer. Please do not assume that this article is a substitute for legal advice from a qualified lawyer.