Appellate court rules Sabah-born man is Malaysian citizen, after 15-year wait as stateless person

 

Wong Kueng Hui, who is now 27, had waited for the past 15 years to be recognised as a Malaysian citizen.

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KUALA LUMPUR, Jan 19 — In a majority decision today, the Court of Appeal ruled that a stateless man born in Sabah to a Malaysian father and a mother of uncertain nationality is entitled to Malaysian citizenship.

Wong Kueng Hui, who is now 27, had waited for the past 15 years to be recognised as a Malaysian citizen. 

Wong was born on January 2, 1995 at Hospital Keningau, Sabah. His Malaysian father died when he was 10 while his mother died when he was 17. Wong has been trying to ask the Malaysian government to recognise him as a Malaysian since the age of 12.

Court of Appeal judge Datuk Che Mohd Ruzima Ghazali today delivered the majority decision in Wong’s favour, saying that the High Court was correct in deciding in 2019 that Wong is entitled under the law to be a Malaysian.

The National Registration Department director-general, home minister and Malaysian government had in 2019 filed an appeal against the High Court decision in Wong’s favour.

Che Mohd Ruzima today examined the two arguments given by the Malaysian government in its appeal, including an “ouster clause” in the Federal Constitution’s Second Schedule’s Part III Section 2 that provides that government decisions in citizenship matters cannot be appealed or challenged in court.

Noting that the ouster clause operates unless there is procedural impropriety, the judge said that errors by the government can be challenged through judicial review.

“It is clear when there are errors in law by the authorities, that can be challenged through judicial reviews. And with that, we find the first ground does not have merits to be given consideration,” the judge said when delivering the majority decision online this morning through the video-conferencing app Zoom.

The government’s second argument claims that Wong is allegedly an illegitimate child — or who was allegedly born when the parents were not legally married — and that he should then follow his mother’s citizenship status as an illegitimate child.

The government had also previously argued that Wong had failed to prove he is not a citizen from his mother’s country and that he would therefore not be qualified to be a Malaysian citizen.

Having dismissed the government’s first argument, the judge also went on to dismiss the government’s second argument.

“After examining the records of appeal, we find there was no error in the decision made by the High Court judge. The undisputed evidence shows Wong was born in Hospital Keningau, as the result of a marriage between the biological father who is a Malaysian and a mother whose citizenship status is not known,” he said.

“We agree with the High Court judge that the respondent (Wong) has done what is possible to determine the citizenship status of the mother. As the mother’s citizenship status is not known, therefore the respondent’s status is also the same. The High Court judge did not err in fact or law when ruling that the respondent’s status is stateless.

“Therefore we agree that the respondent has fulfilled the Federal Constitution’s Article 14(1)(b) read together with the Federal Constitution’s Second Schedule’s Part II Section 1(e) to be granted the status of citizenship by operation of law,” he said when agreeing with the High Court that Wong is entitled to Malaysian citizenship.

The judge then delivered the majority decision to dismiss the appeal by the NRD director-general, the home minister and the Malaysian government, and gave no order as to costs.

The majority decision that was read by Che Mohd Ruzima was agreed to by Court of Appeal judge Datuk Gunalan Muniandy.

Court of Appeal judge Datuk Azizah Nawawi, who had chaired the three-judge panel, meanwhile, gave a dissenting judgment.

Azizah said the facts showed that Wong’s biological mother died when he was 17, stating: “This is not a case where the respondent (Wong) has no knowledge of the birth mother at all.”

Noting that Wong had in fact made enquiries with the Indonesian embassy in Malaysia, Azizah said: “So the respondent knew the mother was from Indonesia.”

“As such, it cannot be said that it is proven that the respondent (Wong) is stateless. I will therefore allow the appeal with no order as to costs,” she said in briefly giving her dissenting views.

Wong himself had attended the Zoom session this morning when the majority and minority decisions were delivered.

Wong was represented today by his lead lawyer Mohd Haijan Omar together with Sharifah Alawiah Syed Alwee, while senior federal counsel Mohd Izhanudin Alias and federal counsel Arina Azmin Ahmad Marzuki from the Attorney General's Chambers represented the Malaysian government and the two other appellants.

When asked by Malay Mail for comments from him and his client, Haijan said: “Well, he’s overjoyed with tears. We have won two tiers of court so we sincerely hope that the government is not going to appeal further to Federal Court.”

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-malaymail