Media should educate people on ‘proof of identity’


Media should educate people on ‘proof of identity’.

There are many people in M’sia living in the legal twilight zone.

Law is about regulating human relationships.

In this case, the young man in the news link has to find the law by providing proof of descent so that the state will give him proof of identity i.e. M’sian identity based on blue MyKad (M’sia Kad Akuan Diri) or Identity Card (IC).

There’s case law at the Federal court stating a DNA Test done at a gov’t hospital can be used as proof of descent from a citizen under operation of law.

The law knows the mother but not the father if the parents do not have a certificate of marriage. The court can be educated on the father through the DNA Test.

In Germany, there’s case law which states that the husband of a woman, under a certificate of marriage, is in law the father of her child. The court will not accept a paternity test which proves the husband is in fact not the biological father of the woman’s child.

The Federal Constitution does not allow anyone to be deprived of citizenship if he or she does not have alternative citizenship or will be rendered stateless.

The Federal court has case law on stateless. No one in M’sia can claim to be stateless unless confirmed by another gov’t which has links, direct or indirect, with the said person.

If confirmed stateless, the person concerned can approach the Federal court, according to the case law.

The Director General (DG) at the National Registration Dept (NRD) has prerogative and discretionary powers.

He will not exercise such powers unless requested by an Applicant.

No court will interfere in the prerogative and discretionary powers of gov’t, and management, unless abuse can be proven.

There’s case law — Raja Azlan Shah — which states that prerogative and discretionary powers are not unfettered if abuse can be proven.

The court will only consider abuse cases very reluctantly, and rarely, if at all.

In law, the onus is on the Applicant to prove that he or she is eligible to get and entitled to hold a personal document provided by the gov’t.

If he or she fails, the said document does not exist in law, and if it existed, ceases to exist as if it never existed.

Any “mistake” by the gov’t, in giving a document to a person who is not eligible to get it and not entitled to hold it, is not considered a “mistake” but based on fraud and/or misrepresentation by the Applicant.

However, the gov’t may not go there and prosecute the “accused” as it may open up Pandora’s Box. The RCI Report on illegal immigrants in Sabah with MyKad refers.

Having said that, there was a recent case in Sabah where an “Indonesian” teacher serving in a gov’t school for 12 years was fined, jailed, and ordered to be deported, after the NRD told the court, “tiada dalam sistem” (not in the system), a reference to the MyKad the accused held. “Tiada dalam sistem” is the standard response of the NRD whenever a MyKad is referred to it.

The teacher was married to a local and had children with him.

The court, probably by looking at the face of the accused and detecting the accent, “knows” when to refer a MyKad to the NRD.

Banks can verify the authenticity of MyKads i.e. the physical specimen but not whether they are legal i.e. whether the holder is eligible in law to get it and entitled to hold it.

Generally, those who hold “tiada dalam sistem” MyKads in Sabah allegedly have “Malay” MyKads which are governed by the Definition of Malay in Article 160(2) of the Federal Constitution.

Malay, under the Definition, is confined to Muslim including converts born or domiciled in S’pore or Malaya by Merdeka (independence on 31 Aug 1957), the cutoff point to be classified Malay, and their descendants.

These Muslim must habitually speak Malay and practise Malay culture, customs, and traditions. The Constitution is silent on what constitutes Malay culture, customs and traditions.

The Definition of Malay in Article 160(2) is confined to S’pore and Malaya. S’pore has its own Definition of Malay under Article 152 whereby a Malay, since 1965, can still remain Malay after leaving Islam.

The Definition of Malay is not race, according to case law in the High Court of Malaya, but anthropology (presumably the Archipelago). If so, it’s a contradiction in terms, as Islam originated outside the Archipelago.

Also, if it’s about anthropology, Muslim from outside the Archipelago should not be classified Malay.

Of course, a Malay from S’pore or Malaya can move to Sabah but there are not that many if Federal gov’t servants are excluded. These gov’t servants serve six years and can’t wait to return to Malaya.

Generally, even wild horses can’t drag people in S’pore and Malaya to Sabah and S’wak. Many, it’s rumoured, threaten to commit suicide, when faced with the prospect of being transferred to Sabah and S’wak.

The transfer is seen as humiliation, as a sort of punishment for “sins” of commission and omission.

In the old days, before Sabah and Sarawak came together with Malaya in Malaysia on 16 Sept 1963, workers in Malaya were invariably “threatened” that they would be transferred to Gua Musang, a remote, isolated Orang Asli location in Kelantan in the northeast of the peninsula.

One section under Article 2 of the Nationality Law states that a child can obtain Japanese citizenship if “born in Japan and both of the parents are unknown or are without nationality.”

The Supreme Court ruling stated that the provision was intended to allow for the obtaining of Japanese citizenship to prevent having stateless residents as much as possible. It also judged for the first time that one condition for obtaining Japanese citizenship is if both parents are unknown.

Author: fernzthegreat

Joe Fernandez holds a honours degree in management, majoring in economics, and has opted from academia in law to being a jurist. He was trained professionally on the job as a journalist. He's a longtime Borneo watcher, keen on the history and legal aspects of Malaya's presence in Sabah and Sarawak. He teaches the English language privately and has emerged as a subject matter expert in public examination techniques.

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