Who bears the burden of proof in citizenship cases for abandoned children?

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The Burden of Proof Rests on the Authorities in Abandoned Child Citizenship Cases

In cases concerning the citizenship of abandoned children, the responsibility for disproving the presumption of eligibility rests with the National Registration Department (NRD) and the Malaysian government. This means the authorities must demonstrate that the birth mother was not a permanent resident, rather than requiring the child or their adoptive parents to prove a negative fact, especially when the mother's identity is unknown. The Court of Appeal's ruling in the case of a Seremban-born girl, identified as LS, affirmed this principle, establishing that such children are protected against statelessness.
Section 19B Presumption Favours the Child

The legal framework, specifically Section 19B of Part III of the Second Schedule of the Federal Constitution, creates a presumption that an abandoned newborn was born to a mother who is a permanent resident. This provision is designed to safeguard abandoned children from statelessness, thereby enabling them to satisfy the constitutional requirements for acquiring Malaysian citizenship. The Court of Appeal's decision underscored that the focus of Section 19B is on whether abandonment occurred, not on the specific method by which the birth mother relinquished the child.
Abandonment Extends to Intentional Surrender

The Court of Appeal clarified that a child is still considered abandoned, even if the birth mother intentionally surrendered the child to a responsible adult or a safe intermediary before permanently disappearing. This ruling overturned a High Court decision that had previously dismissed LS's citizenship application, finding she had not been "abandoned" because she was entrusted to a care home operator. The appellate court held that an intentional surrender, coupled with the birth mother's permanent disappearance, can indeed constitute abandonment under the law.
Government's Failure to Rebut Leads to Citizenship Grant

In LS's case, the Court of Appeal concluded that she had been abandoned as a newborn. As the NRD and the Malaysian government failed to rebut the constitutional presumption established by Section 19B, the court declared LS to be a Malaysian citizen. The court also ordered the NRD to reissue LS's birth certificate as a Malaysian citizen and to issue her a MyKad within 14 days, affirming her right to citizenship.

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Who bears the burden of proof in citizenship cases for abandoned children?

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