Rohingya in malaysia pdf

Skip to main content. Blog Post - New Perspectives on Asia. Media Queries. Contact H. More from this blog Blog Post. December 21, Blog Post. A Tumultuous Year in Malaysian Politicking. December 16, Has U. December 15, December 7, India must address the gambling regulation vacuum head-on. December 1, Social Media Misinformation and the Philippine Elections. November 22, The authors highlight how the ASEAN nations like Malaysia, Indonesia, and Thailand initially send back the Rohingya refugee boats away from their waters and only after massive International pressure agreed to provide temporary shelter on the condition that the International community resettles them within one year Wake, While providing an analysis on the situation of refugees in Malaysia, the Authors mention the fact that currently there are , asylum seekers and refugees in Malaysia under the registration of the UNHCR, with 44, of them being Rohingya.

Another important point mentioned by the author in this research is the de facto integration factor concerning Rohingya refugees in Malaysia. The authors mention that upon interviewing various individuals from the Rohingya community in Malaysia, it was observed that many of them were able to communicate in the local language while working for their local employers.

One of the main driving factors behind this de facto integration, as observed by the authors, is religion. Rights and security of the Rohingya refugees: The majority of the Rohingya refugees who entered Malaysia after the May boat crisis was considered illegal migrants and were detained for more than a year at the Belantik Immigration Detention Center IDC in northern Malaysia.

The report states that nearly every Rohingya refugee interviewed has expressed fear of being detained by the police or other law enforcement authorities. Although Malaysia, although having a presence of thousands of Rohingya refugees, has not signed the refugee convention, and hence the Rohingya are deemed, illegal migrants. The government and the civil society, particularly NGOs like the UNHCR and other local ones, should set up a proper mechanism to address the primary concerns such as housing, health, and livelihood.

The Rohingya crisis is a major security threat for maritime nations like Malaysia. Rohingya refugees who still have not registered themselves and are forced into an uncertain life are always at risk of being arrested by authorities. This life of precariousness can force such refugees into transnational organized crime resulting in enforcement issues for the Malaysian government.

The Rohingya are vulnerable to be recruited by militant groups to broaden their presence in Southeast Asia. The extremist organizations offer refugees the basic needs which the host country fails to provide. The author cites the instance of Amnesty International AI , which called on the government of Malaysia to immediately provide protection and legal status to the refugees Ai, This research employed a qualitative method of research.

For this research, the methods used included both primary and secondary sources, and the nature of the research was purely qualitative. The reason for adopting this research method was that there is a surplus availability of journals and articles that cover the issue of the conflict in Myanmar and the issues concerning Rohingya refugees settled in Malaysia and beyond. This research also aimed to analyze the steps taken by the civil society, the government of Malaysia, and other organizations, both governmental and non-governmental, to assist the Rohingya refugees in tackling these issues.

The primary sources of information were interviews conducted either by email or face to face with people relevant to the topic this can include government officials, members of the Malaysian civil society, members of NGOs who work for the welfare of the asylum seekers as well as interest groups formed to represent the Rohingya refugees.

In this research, the interviews conducted were open ended in nature where the interviewee answered questions asked by the interviewer that is significant concerning the research. At least four interviewees were considered enough to fulfill the requirement and obtain the required information for this research. The questions vary depending on whether the interviewee belongs to any government institution or civil society group. The material collected from these interviews was either face to face or email interviews.

Most of the material used for secondary research purpose are regarding the situation of the Rohingya refugees in Malaysia and contains diverse opinions and analysis. Through the research, the aim was to analyze the difficulties the Rohingya refugees faced and take individual stories of human beings.

From the interview, we observed various findings. The Rohingya face difficulties not only in Myanmar but also on their journey to Malaysia and also in Malaysia itself. The refugees said that they suffer from poverty due to the denial of jobs, and many of them were unable to afford medical treatment if any member of the family falls sick.

Lack of education was observed among the Rohingya refugee children, especially those orphaned and without any family or guardians. Rohingya women who were victims of domestic abuse, human trafficking, and sexual abuse, many of these women who do not have a UNHCR card cannot get any protection from the government or UNHCR.

Currently, the Rohingya numbered between , - , in Malaysia is the most significant refugee population in Malaysia and the biggest Rohingya population in any ASEAN country outside Myanmar. Many of the Rohingya refugees were tricked by human traffickers. They encouraged them to be illegally trafficked to Malaysia and presented Malaysia to them as a Muslim majority country that would accept them and grant them asylum and citizenship without any qualms.

The difficulties faced by Rohingya refugees in Malaysia: The Rohingya refugees came to Malaysia fleeing persecution and denial of fundamental human rights that every human being in this civilized world is entitled to. This contributes to other difficulties such as no employability that denies them a source of livelihood and the third being denial of proper education to Rohingya refugee children.

The second major issue they face is a denial of proper education to their children. However, as discussed below most of these rights are not accorded to the Rohingya in Bangladesh. The Naturalisation Act of was adopted during the British colonial period and Citizenship Act of was adopted during the period when Bangladesh was part of Pakistan.

After inde- pendence from Pakistan, Bangladesh adopted all of the then laws of Pakistan with the promulgation of Presidential Order No. II of XVII of VII of The draft law has already been approved by the Cabinet in February Though the government has not yet made the law public, possibly intentionally, jurists and rights activists are in agree- ment that the new law would result in increased statelessness, among other neg- ative consequences.

Jus sanguinis is citizenship based upon descent and jus soli is citizenship based upon place of birth. As noted, Bangladesh historically recognised the principle of jus soli in only a very limited fashion, as people who were residing in the territory of Bangladesh on 26 March when Bangladesh declared independence be- came citizens of Bangladesh.

Thus, the country follows the jus san- guinis principle in determining citizenship at birth. Bangladeshi citizenship laws based on the principle of jus sanguinis have made gen- erations of Rohingya people living in Bangladesh — the vast majority of whom ar- rived in the country after — effectively stateless. Consequently, a Rohingya child born to two Rohingya parents cannot be Bangladeshi citizen. However, if a child is born to parents at least one of whom is a Bangladeshi citizen, he or she can acquire Bangladeshi citizenship.

In such a situation, it is unclear whether the grant of citizenship is automatic or must be granted by the government. Marriage as a Route to Nationality Another possible route to acquiring citizenship open to Rohingya women is mar- riage to a Bangladeshi citizen.

In accordance with the Citizenship Act , a fe- male non-citizen can be a citizen of Bangladesh if her husband has Bangladeshi citizenship. Art 10 2 of the Act states that: A woman who has been married to a citizen of Bangladesh or to a per- son who but for his death would have been a citizen of Bangladesh un- der sections 3, 4 or 5 shall be entitled, on making application therefore to the Government in the prescribed manner, and, if she is an alien, on obtaining a certificate of domicile and taking the oath of allegiance in Batchelor, C.

However, there is no data on whether any Rohingya woman acquired Bangladeshi citizenship using the marriage relationship. It has been reported that such mar- riages are often not registered officially. The restriction on freedom of movement impacts on other rights, most importantly the right to seek a livelihood. In , the Bangladesh govern- ment signed a Memorandum of Understanding MoU with UNHCR; amongst the conditions in this MoU were that refugees should be restricted to the area of the camps and that refugees should refrain from engaging in economic activities.

However, for those living in the makeshift camps, stepping outside of the camp places them at risk of arrest and detention under the Foreigners Act. There is no income-generating activity available in the camps, and the majority of unregistered Rohingya are not in receipt of aid. The risk of being arrested results in them living in a constant state of fear and some unscrupulous employers take advantage of the situation by paying them less.

XXVII, If Rohingya wish to travel internationally, they must seek assistance from human traffickers or bribe corrupt officials to obtain a Bangladeshi passport. The ultimate destination for these individuals is Malaysia which hosts a large number of Rohingya and Bangladeshi people.

During the perilous journey around people died because of hunger, dehy- dration, drowning and beating by the smugglers or traffickers. These camps are essentially used as prisons where the passengers are detained and tortured until their relatives pay ransom money to the traffickers.

People in these camps die from a variety of causes including beatings, illness and starvation. Hundreds are suspected to have died in the transit camps in Thailand: indeed, there has been also above, note 19, p. As they are stateless, the only option available is to procure fake or forged documents from corrupt officials. There is no reliable data available on the number of Rohingya who have obtained Bangladeshi passports for this purpose.

Nevertheless, the Expatriates Welfare and Overseas Employment minister estimates that there are 50, Rohingya living abroad on Bangladeshi passports. Furthermore, as Rohingya qualify as both refugees and stateless, they should benefit from the protection of the right to freedom of movement. See also, Chowdhury, K. Thus according to Bangladeshi law, Rohingya children born in Bangladesh are entitled to have a birth registration certificate.

In the registered camps, the government has agreed in principle to issue birth registration certificates and has already started registration of children born in Bangladesh. Article 6. Without the certificate, the children are unable to enter local schools. Conclusion Except for the small number of Rohingya who have obtained registered refugee status, most of the unregistered Rohingya people in Bangladesh live without any legal status.

It is true that the Rohingya are safer in Bangladesh than in Myanmar. However, they still face harsh challenges in everyday life, namely restrictions on movement, livelihood opportunities, education, birth registration and the right to citizenship. The government of Bangladesh and the host community have tolerat- ed the presence of a large number of refugees despite the lack of resources; how- ever a system wherein human beings cannot enjoy basic rights and dignity cannot be acceptable.

Recommendations to the Bangladeshi Government 1. Respect the principle of non-refoulement at all times. Bangladesh has an obli- gation not to return Rohingya to a country where they face persecution. Ensure access to justice for all regardless of legal status, particularly for the unregistered Rohingya.

Provide basic services to unregistered Rohingya people in urgent need and take measures to develop the self-reliance of such persons through the devel- opment of livelihood opportunities. Ensure birth registration of all Rohingya children born in the country in ac- cordance with Bangladeshi law.

Provide citizenship to eligible children whose father or mother is a Bangla- deshi citizen in accordance with Bangladeshi law. See also Kiragu, Rosi and Morris above, note 23, p. Allow Rohingya refugees to work, where Bangladesh is in need of labour. Alter- natively, international investors could be invited to establish labour-intensive industries for instance, ready-made garments which Bangladesh specialises in around refugee camps and settlements under the practise of Corporate Social Responsibility.

The creation of work opportunities would be beneficial both for the refugees and host community. Cease the arrest and detention of unregistered Rohingya for breach of the For- eigners Act Take immediate steps to release those who remain in prison despite having served their full sentence. Allow access to education and training for all children irrespective of legal status.

Remove the ban on and facilitate resettlement of refugees. Adopt measures, including awareness raising programmes, to counter anti-Ro- hingya hate campaigns. Introduction The presence of non-citizens in Malaysia is a highly politicised and sensitive is- sue. Nevertheless, migration flows through the region have existed for hundreds of years — certainly long before the introduction of present day nation-state bound- aries. The legacy of such migration has contributed to the complexities around documentation which are now being faced by both individuals and states.

Arbitrarily deprived of citizenship in Myanmar, most Rohingya are stateless and most Rohingya outside of Myanmar are also refugees. It is estimated that there are over one million Rohingya living outside of Myanmar, many as refugees and asylum seekers with no legal status.

Malaysia has a long history of providing temporary asylum to groups of ref- ugees and asylum seekers, and Malaysia currently hosts one of the largest urban refugee populations in the world. Many Rohingya have been in Malaysia for as long as 30 years, arriving as refugees after the mass violence in Myanmar in and the forced repatriation of Rohingya from Bangladesh in the mids.

No reliable estimate of population numbers exists due to the clandestine exist- ence of asylum seekers in Malaysia, inconsistent reporting, variable data collec- tion methods and conflicting definitions of who to count.

As at the end of October , there were some 54, Rohingya refugees and asylum seekers registered 1 The first author is a representative of Asylum Access Malaysia, a Malaysian-registered NGO and part of the Asylum Access family of organisations. She undertook this research in her personal capacity and this paper does not necessarily reflect the views of APRRN.

The anon- ymous third author is an independent researcher who consults for organisations working with refugee populations in Malaysia. The number of unreg- istered asylum seekers is likely to have increased from an estimated 35, people in May to between 40, to 60, people in December according to anecdotal information provided to UNHCR from community representatives , especially in light of the influx of over a thousand asylum seekers arriving in Ma- laysia by sea during May and June of The doctrine of incorporation pro- vides that international law is automatically incorporated in domestic law un- less there is a pre-existing provision under domestic law which precludes such incorporation.

The doctrine of transformation requires international law to be adopted within domestic law via a statute or an Act of Parliament before it may be applied by the courts. Treaties The Federal Constitution of Malaysia does not contain provisions on the automatic incorporation of obligations under international treaties into domestic law. How- ever, Article 74 1 of the Constitution does provide some guidance on the capacity of Parliament to codify treaties into legislation.

More specifically, the article states that laws may be enacted in respect of: a Treaties, agreements and conventions with other countries and all matters which bring the Federation into relations with other countries; b Implementation of treaties, agreements and conventions with oth- er countries10 Based on the doctrine of transformation, even though Malaysia has ratified a trea- ty and is bound by it under international law, it has no legal effect unless adopted 8 Hamid, A.

Section 4 4 of the Human Rights Commission Act states that: [R]egard shall be had to the Universal Declaration of Human Rights to the extent that it is not inconsistent with the Federal Consti- tution.

Beyond that, one was not obliged or compelled to adhere to the Declaration. This was further em- phasized by the qualifying provisions of s 4 4 of the Human Rights Commission of Malaysia Act which provided that regard to the Declaration was subject to the extent that it was not inconsistent with the Constitution.

In this case, the courts ruled on the extent to which the Ma- laysian Federal Constitution applies in an employment contract between private parties and the applicability of CEDAW in Malaysia. The case involved an airline company, AirAsia Bhd, that was being sued by a female employee pursuant to a training agreement that was part of her employment contract.

The training agree- ment contained a clause prohibiting the respondent from becoming pregnant dur- ing the four-year training period. I Pacific Publication, stated at p. One clause required a female flight attendant to resign if she became pregnant, or face termination.

Emphasis added by the Court. Further, Kevil YL Tan and Thio Li-Ann in Constitutional Law in Malay- sia and Singapore wrote: Although CEDAW contemplates taking appropriate measure, includ- ing legal measure, against private parties which commit gender dis- crimination, the treaty is not self-executing and needs to be given effect by a domestic statute which confers a horizontal reach upon treaty norms.

In other words, without express incorporation into domestic law by an act of parliament following ratification of CEDAW, the provisions of the international obligations in the said convention do not have any binding effect. In sum, insofar as Malaysia is concerned, treaties are only domestically enforceable where they have been incorporated by statute. Ratification alone does not make the provisions of treaties ap- plicable for municipal law.

Holding that the Temuan people were not only entitled by custom to the use of their ancestral land, but that they also en- joyed proprietary right to it, the High Court quoted with approval the Australian decision of Mabo v Queensland No.

A common law doctrine founded on unjust discrimination in the enjoyment of civil and political rights demands reconsideration. It is contrary both to international standards and to the fundamental values of our common law to entrench a discriminatory rule. Subsequently the Court of Appeal affirmed the High Court ruling that the Temuan people did have native title rights over their customary lands and therefore were entitled to be compensated by the state. His Lordship continued to make an important statement as follows: As a general rule, no State can be bound by a treaty without having given its consent to be bound.

Malaysia is not a signatory to the IC- CPR, but such principles can be used to assist in the interpreta- tion of the relevant Malaysian law. To its credit, the High Court was not deterred by the absence of a specific provision of statute in Malaysia to order a DNA testing under such situations. Zamani A Rahim J in this instance instead considered how legal issues concerning parental testing were managed in other jurisdictions, such as the UK, US, France and Germany. Although the Act does not expressly refer to the CRC, it has been rooted in the core principles of the Conven- tion, namely the best interests of the child and non-discrimination.

Judge Heliliah stated: The provisions of the Convention on the Rights of the Child have not been incorporated into the municipal laws of Malaysia. It is not open therefore for the High Court to imply such a provision for that will not be interpretation. It may amount to judicial vandalism or judicial trespass. He asserted: [A]n interpretation of the Fundamental Liberties provisions that best promote our commitments to the international community is to be enjoined. To that extent as provided for in art.

The principles propounded in these conventions are highly persuasive and should provide that guiding light to help us interpret the fundamental liberties enshrined in our Constitution taking into consideration accepted norms of international law in these international con- 34 Ibid. Wahi JCA with whom Badariah binti Sahamid JCA agreed went on to say: In our view, the approach taken by the learned JC in imposing upon himself the burden of sticking very closely to the standard of interna- tional norms in interpreting the Federal Constitution is not in tandem with the accepted principles of constitutional interpretation.

Abdullah v Siti Hasnah Vangarama b. Customary international Law Similarly to treaty obligations, the Federal Constitution does not provide for the specific application of customary international law within the Malaysian legal system. The courts have in generally applied customary international law incon- sistently where there is no statutory authority within domestic legislation. Under section 3 1 of the Civil Law Act customary international law, as applied in England, is applicable in Malaysia to the extent that it does not conflict with Ma- laysian law or public policy: Save in so far as other provision has been made or may hereafter be made by any written law in force in the Federation or any part thereof, the Court shall apply the common law of England and the rules of equity as administered in England at the date of the coming into force of this Act.

If a state is able to show that it has persistently objected to a rule during formation and after the completion of its creation, that state may be exempted from the binding effect of a customary law.

The Malaysian government has historically allowed refugees and asylum seekers to remain in the country pending resettlement to a third country but maintains that it does not have the resources to host large numbers of refugees and asy- lum seekers for indefinite periods.

These principles recognise that states owe a duty to protect refugees against forced return. Malaysia has also, on multiple occasions, allowed refugees and asylum seekers to remain in the country pending a durable solution. Despite maintaining that Malaysia is not party to the Convention Relating to the Status of Refugees hereafter Refugee Convention , the government remains silent on its obligation under the principle of non-refoulement in international cus- tomary law.

It is arguable that Malaysia should be responsible under international law for violating the principle of non-refoulement in instances where a refugee is 55 See United States Committee for Refugees and Immigrants, U. However, due to the circumstances of such situations, there is no known case law on the violation of the principle of non-refoulement brought before Malaysian courts to date. Most recently, when the Anti-Trafficking in Persons and Anti-Smuggling of Mi- grants Amendment Bill was tabled before the Malaysian House of Repre- sentatives Dewan Rakyat in June , Dr Michael, Jeyakumar Devaraj, an Op- position MP proposed two amendments to the draft Bill that would have afforded some measure of protection to refugees who have been trafficked or smuggled, in particular the Rohingya.

Further, the government of Malaysia in recent Parliamentary sittings has once again reiterated its stance that Malaysia has no intention of ratifying the Refugee Convention, nor its Protocol, but will continue to allow refugees and asylum seekers to remain in the country on humanitarian grounds pending resettlement to a third country. Malaysia is a federal country: federal laws are enacted by the Parliament of Malaysia and apply throughout the land; state laws govern local governments, and Islamic law is enacted by the state legislative assembly and applies in particular states.

Each lower court must accept the decision of higher courts. It establishes a principle that a court must follow when deciding in subsequent cases with similar issues or facts.

In practice, this means that inferior courts are bound to apply the legal principles set down by superior courts in ear- lier cases. One of the main functions of the Federal Court is to determine or interpret the validity of laws enacted by Parliament or the State government.

The Federal Court also has jurisdiction to resolve disputes between states or between the Federal and State governments. Aziz, S. The Court of Appeal is bound by its own decisions subject to three exceptions as laid down in the case of Young v Bristol Aeroplane Co Ltd. There are of course further possible exceptions so long as they do not run against the established principles laid down in that case.

Islamic Law Islam is the official religion of Malaysia. This includes matters governing personal and family law of persons professing the religion of Islam, including Islamic law relating to succession, testate and intes- tate, betrothal, marriage, divorce, dower, maintenance, adoption, legitimacy, and 79 Young v Bristol Aeroplane Co Ltd [] KB Each state of Malaysia has its own Sharia Court as well as statutes to govern the implementation of matters pertaining to family law which governs Muslims.

A law report is a record of a judicial decision on a point of law which sets a precedent. The vast majority of the cases heard in court will be unreported. In general, a case is only reported if it raises a new or sig- nificant principle of law, or changes or clarifies the existing law.

In Malaysia there is no difference between an unreported and reported case, save for publication in the respective law journals.

An unreported case may be verified by the Courts if it has been cited or followed in a judgment. In any event, unreported cases remain good law unless overruled in an appeal or in a court of similar jurisdiction. Domestic Laws i. The Federal Constitution The Federal Constitution is the product of the social, economic and political devel- opments in the evolution of Malaysia as a country.

It provides for the constitutional 84 Muslim personal law including family matters such as marriage, divorce and inheritance and native personal law and custom are under the jurisdiction of the States and Legislatures. The second category is those states that made significant changes to the original draft agreed to by the Council of Rulers. The dif- ferences are particularly in the arrangement of sections, the law and the procedures, namely the states of Kelantan, Johor, Malacca and Kedah.

Currently, there is an effort to synchronise Islamic Family Law across all states of Malaysia. See Hak, N. See also, Dahlan, R. Article 4 of the Constitution provides that any law passed after Independence 31 August which is inconsistent with the Constitution, shall be void.

These include matters pertaining to Islamic law and lo- cal state administration. The Constitution may be amended following Federal law and under special considerations. There have been individual amendments to the Constitution, largely due to territorial changes, creation of Federal courts, and changes in terminology over time.

As Muslims, Rohingya who intend to marry or adopt children in Malaysia or Rohingya children who are adopted by Malaysians fall under the jurisdiction of Sharia law.

The relevant provisions will be considered below. Post-independence, the Immigration Ordinance and Regulations of and the Passport Ordinance were enacted. This was provided for in the case of Subramaniyam Subakaran v PP, where the Court found that the Immigration Act in general, particularly its provisions relating to unlawful entry, are applicable to asylum seekers and refugees.

Yet, as will be discussed in Part 4 there are exceptions whereby refugees and asylum seekers registered 92 Ibid. Conclusion The application of international law by the courts in Malaysia has been inconsist- ent. The Federal Constitution of Malaysia does not contain provisions on the au- tomatic incorporation of obligations under international law into domestic law. The courts have argued that for a treaty to be applicable in Malaysia, it must be enacted into leg- islation, as was seen in the cases of Rafizah and Beatrice.

In a recent decision by the Court of Appeal in the case of Indira however, the courts held that international treaties do not form part of Malaysian law unless they have been incorporated into domestic legislation.

Similar inconsistencies in application are evident with regards to customary inter- national law, specifically in reference to the principle of non-refoulement. Malaysia is only exempt from obligations if it has persistently objected to the customary rule since its inception. Therefore, Malaysia should be held responsible under inter- national law for violating the principle of non-refoulement in instances where a Rohingya refugee is forcibly returned.

However, initiating action against the state for violation of this principle will be a challenge. Furthermore, as Malaysia has not ratified the Refugee or Statelessness Conven- tions, refugees and asylum seekers are subject to the provisions on unlawful en- try, although, as discussed below there are certain exceptions which may apply to those Rohingya who are registered with UNHCR.

Citizenship and Nationality Laws a. Legal Status of Rohingya in Malaysia Over the past four decades, thousands of Rohingya children have been born in Ma- laysia, although the National Registration Department NRD does not have a re- cord of the number of Rohingya births which have been registered. In general, Rohingya in Malaysia are not aware of the process and perhaps the importance of civil registration and acquisition of citizenship, which can be com- plex, time-consuming, and fraught with practical and legal obstacles.

It will conclude with an analysis of the opportunities and challenges for the acquisition of Malaysian citizenship for Rohingya. Legislation on the Acquisition of Citizenship i. The Federal Constitution of Malaysia The Federal Constitution of Malaysia provides for three types of citizenship: cit- izenship by operation of law, citizenship by registration and citizenship by natu- 99 See above, note 2, p.

Article 14 1 b of the Federal Constitution provides that a child born in Malaysia is a citizen by operation of law if: i at least one of his or her parents is at the time of birth either a citizen or permanently resident in Malaysia Part II 1 a Second Schedule , or ii where he or she is not born a citizen of any other country and cannot acquire citizenship of any other country by registration within one year Part II 1 e Second Schedule.

The Federal Government may register a woman who is the wife of a citizen if her husband was a citizen on 1 October , and the marriage was subsisting at the time of the application, provided she satisfies the following conditions: two years of continuous residency prior to the applica- tion, is of good character, and is officially married according to Malaysian law.

The Federal Government may also register the children of citizens who are under the age of 21, and where at least one parent or guardian is or was at the time of their death a citizen.

Upon the application of any person over the age of 21 who is not a citizen, the Government may grant a cer- tificate of naturalisation to that person if he or she is of good character, has ade- quate knowledge of the Malay language and has had a total period of residence of not less than 10 years within the 12 years preceding the date of the application, including the 12 months immediately before the application. Any newborn child found exposed in any place shall be presumed, until contrary as shown to have been born in that place to a mother permanently resident there Second Schedule, Article 19B.

However, this right only applies for newborns. Under art 19 1 of the Constitution of Malaysia, such a grant may be made to a person over the age of 21 years if the Government is satisfied: a that he has resided in the Federation for the required periods and intends, if the certificate is granted, to do so permanently; b that he is of good character; and c that he has an adequate knowledge of the Malay language. However birth registration in and of itself does not normally confer nationality upon a child.

Mus- See above, note 10, Article According to section 4, the provisions of the Act applies to all Muslims living in the Federal Territory, and to all Muslims resident in the Federal Territory who are living outside the Federal Territory. Under the Act a marriage must be solemnised in the presence of, or with permission of a Registrar as appointed by the Ruler of the State Yang di-Pertuan Agong.

See above, note Section 9 of Adoption Act provides that all rights, duties, obligations and liabilities shall be vested in and be exercisable by and enforceable against the applicants as though the child was a child born to them in lawful wedlock. It merely provides for registration of the de facto adoption and recognises indirectly the right to custody of the adopted child.

If the application for a departmental adoption is allowed, an entry will be made in the Registration of Adoptions Register and a certificate of adoption will be issued. See also above, note Government Policies Affecting Citizenship for Rohingya i. However, community leaders have reported that NRD offices have ac- cepted marriage certificates issued by an ulama in the Rohingya community for the purposes of registration of births.

The lack of standardised procedures be- tween NRD offices across the country also results in the inconsistent application of policies and practices. For example, while the production of a certain set of doc- uments may be sufficient for the issuance of a birth certificate in one NRD office, the production of the exact same set of documents may be treated as insufficient in another NRD office, resulting in refusals to issue birth certificates.

In other cases a police report has been required as part of an application for a birth certificate for the child of a refugee. For example, whilst registration of a birth is free of charge within 60 days, the application for birth registration requires a set of docu- ments in support of the registration application, some of which incur a fee, such as the prenatal card maternity examination book , and the confirmation of the birth from the hospital where the child was born, or a certificate of home birth from a midwife or doctor.

The Immigration Department has counters at some public hospitals in Malaysia and, if the mother does not possess a UNHCR card, it is reported that some Rohingya mothers and their new-born children have been arrested. In cases where an asylum seek- er or refugee gives birth in detention, there are inconsistent approaches taken by the immigration authorities. In some instances, immigration officers will assist in obtaining the birth certificate of a child by bringing the child to the nearest NRD office, however in these cases the registration process is done in the absence of the parents.

In other instances, no assistance is rendered to the detained parent s , leading to a delayed or late registration of the child, as the parents would only be able to approach the NRD office after their release from detention.

Applicants often experience language difficulties due to a lack of Rohingya interpreters, and literacy levels amongst Rohingya are often low. Applicants often do not have a sufficient understanding of how to navigate the birth registration process in Malaysia. Furthermore, whilst both men and women can confer their Malaysian nationality to their children born in wedlock in the territory, children born out of wedlock to Malaysian fathers can only acquire Malaysian nationality through discretionary cit- izenship by registration procedures.

The details of the father will not be registered unless the parents make a joint application. See above, note , The Rakyat Post. A green birth certificate will be issued to children born out of wedlock to a Malaysian mother who is present at the time of the birth registration. Policies on Marriage Registration The Malaysian government has taken the position in the past that one factor in determining the citizenship status of children in Malaysia was the marital status of their parents.

Rohingya community leaders have asserted that they are unaware of any local religious authorities which are willing to authorise Rohingya marriages in Malaysia. There are however two exceptions. The Selangor state government has provided guidelines on the registration of marriages between Muslims who are UNHCR cardholders in the state.

Whether any condition will be possible for exemption will be considered on a case-to-case basis. The religious department in the state of Perak reportedly approved the marriage between a Rohingya man and a Malaysian woman in There have been reports of Rohingya men marrying elderly, widowed Malaysian women in the hope of obtaining permanent residency, and subsequently Malay- sian citizenship.

Upon the issuance of MyPR, there is the requirement of a minimum of 2 years continuous residency for wives of Malaysian men, for citizenship by registration Article 15 of the Federal Constitution , and a minimum of 10 years continuous This is not as a right, as an application will be made for the due consideration of the registrar before registering the marriage.

Policies on Adoption As the Federal Constitution, the Adoption Act and the Registration of Adop- tion Act are all silent with regard to the citizenship of adopted children in Malaysia, it falls to the NRD to determine the citizenship of adopted children.

Courts have held that when interpreting it, judges should keep in tandem with national ethos and adopt a liberal approach in order to implement the true intention of the framers of the Constitution.

Hence the argument of learned counsel that the Respondent should weigh conflict of consideration between immi- gration policy and the welfare of a child simply cannot arise here, since there is no room for any discretion to be employed under Article The test to be applied is whether a person qualifies all the necessary requirements of Article Once the requisite conditions under these provisions are met it is automatic that a person is a citizen by operation of law.

The Court held that an irregularity in birth records could never be a bar to a substantive claim for citizenship under Article 14 of the Federal Constitution. See Goh Liew Kee v C. Moosa B. Abdullah [] 1 CLJ on marriage. The only requirement of the Com- mon Law which I hold applied to the question whether the applicant was the legal wife of the deceased was the basic essence of marriage, namely, an agreement between the parties. The court held that the case was an abuse of court process as it was a non-justiciable matter which the court had no jurisdiction to hear.

However, there have been several cases brought to court by parents aggrieved by the decisions of the NRD to refuse the granting of citizenship to their adopted or biological children under Articles 14 and 15 of the Federal Constitution, which are now considered below.

Section 9 of the Adoption Act in effect provides that all rights, duties, obligations and liabilities shall vest in and be exercisable by and enforceable against the applicants as though the child was a child born to them in lawful wedlock. In the absence of any authorities supporting the above proposition due to the novelty of the issue, reliance was placed on the purposive approach to the interpretation of statute and the application of the Adoption Act , namely, the submission that the child is a citizen by operation of law is consistent with the purpose of the amendments to the Adoption Act The omission of such words in the Certificate of Birth is considered necessary to prevent the possibility that knowledge of the fact of being adopted would have adverse psychological effect on an adopted child who is unprepared to learn of his actual background or status.