KUALA LUMPUR, Sept 24 — Tan Soo Yin was born in Yong Peng, Johor and has lived all her life in Malaysia, but her wait to be recognised by the Malaysian government as a citizen will have to continue after her failed bid in the courts here today.

Lawyer Jasmine Wong, who represented the 36-year-old Tan also known as Mary, said that the High Court today dismissed the Johor-born woman's citizenship bid.

Wong explained that High Court judge Datuk Seri Mariana Yahya had ruled that it was necessary for Tan to show who her biological parents are.

"So what the judge said for Mary's case is for Section 1(e), you still need to prove and identify the biological parents,” Wong told reporters when met after the decision was delivered in chambers.

Wong noted however that Tan had already done her best in her efforts to find her unknown biological parents, including by going back to the primary school where she had studied in an attempt to get the records of her education.

Tan also could not put up any advertisements to locate her biological parents as she has no details at all, with Wong saying: "Because there's no picture of her as an infant, there's no information on her parents, so there's nothing to be advertised in the newspaper.”

But despite Tan's efforts to locate them, the High Court had ruled that these efforts to prove and identify her biological parents were still insufficient, Wong said.

While Tan's lawyers have argued that she should be recognised as a citizen as she was born in Malaysia and is not a citizen of any other country, Wong explained that the High Court was also bound by past decisions by a higher court — the Court of Appeal — in similar citizenship cases involving Malaysia-born children who do not know who their biological parents are.

"So our position, you just need to prove you were born in Malaysia and there's no requirement to show and identify the biological parents at all.

"But the courts take a different interpretation, they are bound by the principle of stare decisis, decisions made by the Court of Appeal,” she said, referring to Court of Appeal decisions where the courts decided that the jus sanguini principle — the right to citizenship by blood or lineage — should apply in such citizenship cases and would require the identification of biological parents.

In her court case filed in April 2019, Tan had, among other things, sought for a declaration that she is a citizen by operation of law under Article 14(1)(b) of the Federal Constitution as she was born in Malaysia, and via Section 1(e) and Section 2(3) of Part II of the Federal Constitution’s Second Schedule.

Section 1(e) provides that every person born within Malaysia who is "not born a citizen of any country” is a Malaysian citizen by operation of law, while Section 2(3) states that a person is to be treated as having at birth any citizenship which he acquires within one year of their birth.

Tan’s lawyer Raymond Mah had previously argued that these two provisions would mean that anyone born in Malaysia — but who does not become a citizen of any other country within one year of their birth — would be a citizen of Malaysia under the law.

But the Attorney General’s Chambers, which represents the Malaysian government, had previously argued that Tan could not automatically be considered stateless and that she is still required to prove her stateless status and to show sufficient effort to identify her biological parents.

In many of the cases where Malaysia-born children or individuals are stateless or not a citizen of any country and seeking to be declared as citizens, a common scenario is that they do not know who their biological parents are or are unable to trace or get in touch with them, as they have often been given up for adoption.

Many then find themselves in the situation of being legally adopted by or under the care of Malaysians, and yet having to apply to be recognised as Malaysians.

Wong said the High Court had today emphasised that Tan's status is currently undetermined or "belum ditentukan”, and not that of a non-citizen or "bukan warganegara”.

"According to the government's point of view, she's not yet stateless, because they haven't made a decision on her citizenship status.

"But then the question is she's already 37 years old now. How long does she need to wait for the government to make a decision on her citizenship status when we have already adduced all the proof that she was born here, she lived here all her life and there's definitely no way for her to exit the country to go to any other places?” Wong asked.

"If anyone were to look into the Hansard, they would see that the spirit and intention behind Section 1(e) is to overcome the issue of statelessness in Malaysia. And Section 1(e) should have been used for a person in Mary's shoes. There is no way that she could have obtained citizenship of any other country if she was born in Malaysia and was never allowed to leave the country,” she later added.

Johor-born woman Tan Soo Yin is seen at the Kuala Lumpur Court Complex on September 24, 2020.

A hard life of waiting and disadvantages

Tan, who was personally present in court today to hear the High Court's decision on her citizenship bid, was later seen visibly holding back tears after the court's ruling.

When met outside the courtroom, Tan was at times crying while she voiced her disappointment and sadness at being denied recognition today as a Malaysian citizen.

"I don't know, don't understand why. I think it's unfair... How to find my father and mother, how to find, I'm so old already, already 36, can they still recognise me? I also won't recognise them, I also don't know who they are. It's impossible I go and find them, where to go to find them?” she told reporters.

"I'm very sad, at my age, how long do I need to wait?” she later asked, noting that she had previously made multiple efforts to obtain the government’s approval for a MyKad.

Tan also said that she was told by her foster mother that she had been abandoned by her biological parents after she was born.

Previously, court documents by her lawyers stated that Tan was sold while still an infant by her unknown biological mother to her Malaysian foster mother, and that her birth was registered in the next month from when she was born with her birth certificate stating her citizenship status as "belum ditentukan” or undetermined.

Tan however could not get any information on her biological parents from the 84-year-old foster mother who is now suffering from dementia, while the step-siblings she was recently reunited with also did not have such information.

Pointing out that she had not done any bad or wrong things and had never left the country, Tan said she just wanted to be recorded as a citizen of Malaysia and be accorded a blue-coloured identification card for citizens known as MyKad in order to live an ordinary life and for the sake of her similarly stateless daughter.

According to court documents, Tan has been holding a green-coloured identity card for temporary residents called MyKas issued by the National Registration Department since she was 19. MyKas cards have expiry dates and require renewal every few years, and states that the holder is a non-citizen.

As a MyKas holder, Tan said she cannot do things such as open a bank account, obtain a driving licence or buy property, noting that employers who had in the past hired her had withheld her salaries or given her a lower salary as she does not have the blue-coloured identity card that Malaysian citizens hold.

Tan said she has not worked since last year due to difficulties in getting hired with her status as a MyKas holder and with prospective employers even doubting the validity of her MyKas.

After leaving home in her teenage years for Kuala Lumpur to work, Tan said she subsequently gave birth in Malaysia to a son and a daughter — both of whom she had to leave in the care of their Malaysian father's relatives as she was unable to care for them as well as her income status.

While her son has been recognised as a Malaysian citizen as he was under the care of her former husband's relatives, her daughter has however been denied citizenship status and a MyKad due to Tan's status and only has a birth certificate, she said.

Tan indicated that she was pursuing her citizenship bid in hopes that it would facilitate her daughter's citizenship bid, noting: "I myself just want to live out very ordinary days, it's not that I want to ask for anything. Now my daughter is studying, I want my child to live a good life, it's not for me.”

"She is now studying in Form 4. If she is registered as a citizen, she can continue to study, I hope she can. Now she is not registered as a citizen, how can she continue studying? How can she find work? This is her life, you know? This is our life,” she said, adding that she had previously sought a political party's aid for her daughter's citizenship status but said that there has been no results.

Tan said she has not worked since last year due to difficulties in getting hired with her status as a MyKas holder and with prospective employers even doubting the validity of her MyKas.

Limited options

Apart from going through the courts, Wong said Tan's options to finally obtain the government's recognition as a Malaysian citizen are very limited, as efforts at trying the route of citizenship by naturalisation through Article 19 of the Federal Constitution had been unsuccessful.

"She wanted to get the Article 19 application form, because she has stayed in Malaysia since birth, she wasn't even given the opportunity to submit the application form. They looked at her birth certificate, they said because there's no information about her biological parents, so they refused to give her application form, so she could not even submit it,” Wong said, adding that efforts would be pursued to obtain the Article 19 form.

Tan cannot use the Article 15 citizenship route that is only available to those aged below 21.

Under Article 19 which provides for citizenship by naturalisation, the federal government may grant a certificate of naturalisation to anyone aged 21 or above if they apply for such a certificate, provided that the applicant has lived in Malaysia for a cumulative period of at least 10 years, and is someone of good character and with an adequate knowledge of the Malay language.