Statelessness & Citizenship Review
2019
1(1)
they were successful in obtaining citizenship for the child. 5L has represented
several other persons in similar situations. 128 These cases highlight how a lack of
proper documentation and adoption intersect to create administratively stateless
persons.
Finally, some persons who were eligible for citizenship by virtue of their
long-standing residence since pre-independence also were children who were
adopted in plantations by persons who were not their biological parents. 129 The
dual reason of being a descendant of a plantation worker and being adopted
complicates a case to ask for citizenship.
THE MIRAGE OF A FLOOD: DE FACTO CITIZENS IN MALAYSIA
The identification of the six categories of stateless persons in Malaysia help us to
understand who are stateless persons. This exploratory study suggests that
persons who fall within five of the six categories are persons born in Malaysia
and have long-standing residence in Malaysia thus indicating a genuine and
effective link with the country. Further, the study also suggests that persons in
the five of the six categories may also have at least one lawful parent that is a
Malaysian citizen, another factor suggesting genuine and effective link to
Malaysia. This suggests that the five of the six categories of stateless persons
consist of people who did not cross borders, are not foreigners and are not
migrants but rather persons who have genuine, effective and substantial links to
Malaysia.
There may be legal preoccupation with how the Federal Constitution can be
interpreted so as to not open the floodgates to migrants so to speak. 130 The
argument that interpreting the law as it is plainly stated would open the
floodgates has no merit for three reasons.
A
The Law of Interpretation — Public Policy is Irrelevant Here
The first is an interpretation reason. Where the text of the Federal Constitution is
not clear or express, public policy issues such as whether or not a particular
interpretation may lead to unintended consequences may play a role. However,
where legal text is clear and express, there is no need to consider public policy.
Legal practitioners should follow what is stated, and the law is clear for the five
categories of stateless persons in Malaysia.
B
Majority of Stateless Persons Have Genuine, Effective and Substantial
Links
The second reason is that there is no flood beyond the gates. This paper does not
do the work to resolve the number of people that are stateless in Malaysia, which
has been a contested subject of debate in public and political discourse. 131
Instead, the research suggests the number is irrelevant. The focus, as this initial
128
129
130
131
Appendix Table 3, Interview with 5L.
Appendix Table 3, Interview with 12NGO.
Appendix Table 3, Interview with 5L.
See, eg, Eric Paulsen, ‘Time to Resolve Malaysian Indian Statelessness’, (Lawyers for
Liberty, 25 April 2012) <http://www.lawyersforliberty.org/time-to-resolve-malaysianindian-statelessness/>.
122