Court Of Appeal Affirms Marriage Rights Of Stateless Persons

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The Court of Appeal has upheld a landmark ruling today, affirming that stateless persons have the right to marry, as there is nothing under the Law Reform (Marriage and Divorce) Act 1976 requiring a national identification card to do so.
Lawyer New Sin Yew, who appeared for the respondents in the case involving three generations of stateless persons from Perak, confirmed the panel’s verdict when contacted by Malaysiakini today.
He added that the individuals, who were children and grandchildren of Kamaladevi Kanniappan, had become stateless due to her inability to register her marriage to a Malaysian man.
Lawyer New Sin YewDespite having Malaysian grandparents, Kamaladevi was not recognised as a citizen because her mother, Letchimee, had only had a birth certificate and not an IC up to her death.
“The recognition that stateless persons have the right to marry under our law is extremely important because marriage, as in the present case, prevents intergenerational statelessness.
“Without such a right, the child of a Malaysian father and a stateless mother would not be able to inherit the father’s citizenship and remain stateless.
“That problem would persist in the female lineage of the family. This Kafkaesque problem is entirely avoidable but for blind bureaucracy,” he said.
Citizenship upheld
New confirmed that the Court of Appeal panel, chaired by Justice Nazlan Ghazali, had upheld the Malaysian citizenship of Kamaladevi and her affected lineage, as ordered by the Taiping High Court last year.
The lawyer further said that the Court of Appeal also found that the stateless individuals are also citizens by operation of law because the matriarch of the family was a Malaysian citizen.
The verdict this morning was made in dismissing the government's appeal against the High Court’s decision, as they found no “appealable errors” in the judgment.
Court of Appeal judge Nazlan GhazaliNazlan, in reading out the panel’s verdict, said every person has the right to have their marriage solemnised and registered under Section 27 of the Act, as reported by Malay Mail.
“There is nothing in the Act which imposes any requirement that an identity card is a prerequisite to the registration of marriage or which prohibits the registration of marriage of a stateless person.
“This state of affairs (in Kamaladevi’s case) is unfortunate, and citizenship by operation of law ought to be automatically acquired at birth.
“In our view, on the specific and peculiar circumstances of this case, given the totality of the evidence, the respondents had on balance of probabilities proven that they fulfilled the requirements of Section 1(a) of Part II of the Second Schedule of the Federal Constitution, that one of the parents is a Malaysian citizen.
“Accordingly, the respondents are citizens by operation of law under Article 14(1)(b) read together with Section 1(a) of Part II of the Second Schedule of the Federal Constitution,” he said.
Presiding with him today were Justices Azizah Nawawi and Azhahari Kamal Ramli.
Protect child’s interests
Syariah lawyer Nizam Bashir pointed out that, despite the verdict in Kamaladevi’s case, it may not be the same for Muslim foreign couples who were married abroad and reside in Malaysia, even though the law says it is not a prerequisite to have a national identity card to register a marriage here.
“Oddly enough, state syariah marriage registries do not permit registration of marriages between foreigners where neither of the spouses is Malaysian.
“That’s the policy they apply even when the federal family law does not prohibit marriage that is registered abroad… even if the couple are not Malaysian.
“But the question stands. For example, in cases of failure to pay a child’s alimony. With such policies, how could we go to the syariah courts and ask the judge to order the father to pay alimony to the child, if the parents’ marriage is not recognised here?
“For me, it doesn’t matter whether the couple are Malaysian or not, because in reality, we need to focus on the child’s best interests, which, if it is not taken care of, would be very prejudicial to the child,” he told Malaysiakini.
Nizam added that the legal system must recognise and protect a child’s interest in some way. - Mkini

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