Statelessness Working Paper Series No. 2017/9 Lawful marriage of a child’s biological parents is another deep-seated restriction that curtails the ability of the safeguard to mitigate the (possible) statelessness of a child. The act of adoption by a child’s own Malaysian biological father will not set aside the barrier created by the gender-biased citizenship provision that becomes operative once it is proven that there was no lawful marriage between the child’s parents at the time of birth.28 It appears to be immaterial that a child has an estranged non-citizen mother who has separated from the child’s Malaysian father, left Malaysia permanently and completely abandoned her child in the care of the Malaysian father/ his family member.29 This child would still take her/his mother’s citizenship according to the law of the mother’s country of origin.30 The burden of proving statelessness is entirely placed on claimants applying for citizenship for affected children, something that is extremely challenging in itself given the absence of statelessness determination procedures or agreed procedures of discharging such burden to the satisfaction of the law. Several decisions concur that all available legal remedies must be explored before an application for citizenship on the basis of the safeguard can be asserted. One clear remedy is for applicants to firstly submit their applications for citizenship by registration under Article 15A of the Federal Constitution. This provision empowers the Home Minister to exercise his discretion in granting or rejecting applications for citizenship of persons below twenty-one years of age, on the basis of ‘special circumstances’. The prospect of acquiring Malaysian citizenship under Article 15A 31 appears to be uncertain, as the phrase ‘special circumstances’ is not defined anywhere in the law. As there is no fixed timeframe for the application for citizenship to be resolved, the fate of the child concerned therefore hangs in the balance pending the whole application process and court proceedings that may ensue afterwards. The court jurisprudence unveils that considerable attention has been placed on technical analyses of legal provisions. This is a cause for particular concern as the emerging pattern of the substantial portion of the decisions is one that is seriously uninformed and unguided by human rights principles and considerations, even as elementary as the principle of ‘the best interests of the child’. The prevailing position repeatedly asserted by the majority of human rights-related cases is that treaties such as CRC and Convention on the Elimination of All Forms of Discrimination Against Women (CEDAW) to which Malaysia is party have been held to have no force of law for not being enacted into local legislation.32 Constitutionally, it has been further reiterated that the Federal Constitution does not require the Malaysian courts to have judicial notice of international human rights law, including the Universal Declaration of Human Rights (UDHR) in any of its provisions.33 There have been cases where Courts have adopted a liberal method of interpretation by making reference to the position 28 Foo Toon Aik (suing on his own behalf and as representative of Foo Shi Wen, Child) v Ketua Pendaftar Kelahiran dan Kematian, Malaysia [2012] 9 MLJ 573; Lim Jen Hsian & Anor v Ketua Pengarah JPN & Ors [2016] 7 CLJ; Yu Sheng Meng (a child represented by his litigator, Yu Meng Queng) v Ketua Pengarah Pendaftaran Negara & Ors [2016]7 MLJ 628 29 This is reflected in the facts submitted by the applicant in Lim Jen Hsian & Anor v Ketua Pengarah JPN & Ors [2016] 7 CLJ. See p 594 30 See for instance the case of Lim Jen Hsian & Anor v Ketua Pengarah JPN & Ors [2016] 7 CLJ 31 Article 15A of the Federal Constitution reads, “Subject to Article 18, the Federal Government may, in such special circumstances as it thinks fit, cause any person under the age of twenty-one years to be registered as a citizen” 32 Merdeka University Berhad v. Government of Malaysia [1981] 2 MLJ 356; SIS Forum (Malaysia) v. Dato’ Seri Syed Hamid Syed Jaafar Albar (Menteri Dalam Negeri) [2010] 2 MLJ 377 at p 394 ; Beatrice AT Fernandez v SIstem Penerbangan Malaysia [2005] 2 CLJ 713; Bato Bagi & Ors v. Kerajaan Negeri Sarawak & Another Appeal [2011] 8 CLJ 766; [2011] 6 MLJ 297 33 Than Siew Beng & Anor v Ketua Pengarah Jabatan Pendaftaran Negara & Ors [2016] 6 CLJ, at p 942; Lim Jen Hsian & Anor v Ketua Pengarah JPN & Ors [2016] 7 CLJ, paras 21 & 23 9