STATELESS CHILDREN IN MALAYSIA AND THE PRINCIPLE OF LEGITIMATE EXPECTATION
Dina Imam Supaat, PhD Senior Lecturer,
Faculty of Syariah and Law, Universiti Sains Islam Malaysia
KUALA LUMPUR INTERNATIONAL BUSINESS, ECONOMICS AND LAW CONFERENCE 2015
WHO?
A stateless is anyone who is not considered a naLonal by any State under the operaLon of its law.
De jure stateless can be defined as those who are not regarded as naLonals of the state under its law.
De facto stateless people are those who are unable to prove their ciLzenship of any parLcular state despite of the existence of valid documentaLon and thus being denied enjoyment of human rights and protecLon which was afforded to the other naLonals of the state.
HOW?
Statelessness can happen:
where a state simply cease to exist while the people fail to get ciLzenship in their successor states;
when there is changes in ciLzenship laws;
when individuals renounce one naLonality without having acquired another;
or from failure to register a child at birth
FIGURES
40,000 stateless people throughout Malaysia
More than 40% are children
Rohingyan refugee children and undocumented children of Philippines and Indonesian migrants.
Small number of children of the Malaysian plantaLon labours
IMPACT OF STATELESSNESS
The absence of the legal idenLty
Denial of health care Illiteracy
Poverty Vulnerable to violence, abuse and exploitaLon
Subject to detenLon and deportaLon
NegaLves impacts on the children psychology
LEGAL PROTECTION UNDER INTERNATIONAL LAWS
Birth RegistraLon Healthcare EducaLon
Right to Life Right to Social Security
Freedom of Thought,
Conscience and Religion
Freedom of Expression and Freedom of
Peaceful Assembly
MAIN ISSUE
The domes)c law does not contain any protec)on for stateless children
Malaysia ra)fied the UNCRC that provide protec)on to all children without discrimina)on.
The UNCRC has not been given effect-‐ no enabling act.
Can stateless children rely on the principle of legi)mate expecta)on to claim their rights under the UNCRC?
THE PRINCIPLE OF LEGITIMATE EXPECTATION
Concerns the rela)onship between public administra)on and the individual.
Expecta)ons raised as a result of administra)ve conduct may have legal consequences.
The principle therefore concerns the degree to which an individual’s expecta)ons may be safeguarded in the face of a change of policy which tends to undermine them
ORIGINS OF THE PHRASE Lord Denning M.R. in Schmidt v Secretary of State for Home Affairs [1969] 2 Ch. 149. Two US ci)zens travelled to the United Kingdom for study purposes. The )me limit on their permits had expired and an extension had been refused by the Home Secretary without affording them a hearing. The Court of Appeal held that it was unnecessary to allow the applicants an opportunity to make representa)ons. A hearing would have to take place only where a person had some right or interest or, Lord Denning added, “some legi7mate expecta7on, of which it would not be fair to deprive him without hearing what he has to say”. Such a legi)mate expecta)on would arise, Lord Denning con)nued, if the applicants’ permits had been revoked before the )me limit had expired. In such a case the applicant “ought, I think, to be given an opportunity of making representa)on; for he would have a legi)mate expecta)on of being allowed to stay for the permi[ed )me”.
JP Berthelsen v Director General of Immigra9on, Malaysia & Ors. [1987] 1 MLJ 134
• The decision to cancel the permit was an execu)ve discre)on which as far as merit is concerned remains outside the purview of the courts.
• While this discre)on is one for the execu)ve, it remains discre)on to be exercised according to law.
• Fundamental in this respect is the opera)on of the rules of natural jus)ce, and they include the common law procedural safeguards: the doctrine of legi)mate expecta)on and the duty to act fairly
Minister of State for Immigra7on and Ethnic Affairs v. Teoh (1995) 128 A. L. R. 353.
The noteworthy ground of Teoh’s judgment that significant to be discussed of in this research is that the Australia's ra)fica)on, in 1990, of the United Na)ons Conven)on on the Rights of the Child (1989) had given rise to a legi)mate expecta)on in the respondent’s children that his applica)on for resident status must be considered in a manner that was consistent with the terms of the Conven)on. The judge in delivering his judgment point out that in the absence of any statutory or execu)ve indica)ons to the contrary, the mere act of ra)fica)on was an adequate founda)on for a legi)mate expecta)on.
WHAT ARE THE ELEMENTS RENDERING EXPECTATIONS TO BE LEGITIMATE OR REASONABLE?
A regular course of conduct which has not been altered by the adop)on of a new policy;
Express or implied assurances made clearly on behalf of the decision-‐making authority within the limits of the power exercised;
The possible consequences or effects of the expecta)on being defeated, especially where those consequences include economic loss and damage to reputa)on, providing that the severity of the consequences are a func)on of jus)fied reliance generated from substan)al con)nuity in the possession of the benefit or a failure to be told that renewal cannot be expected; and
The sa)sfac)on of statutory criteria.
The expecta)on by the stateless children in Malaysia of their en)tlement to the similar rights and protec)ons afforded children who are ci)zens is reasonable and legi)mate as it falls within the second limb of the four principal elements: Express or implied assurances made clearly on behalf of the decision-‐making authority within the limits of the power exercised.
Therefore by ra)fying the CRC, the Malaysian government has made a posi)ve statement to the world at large that the execu)ve government and its agencies will act in accordance with the Conven)on and thus render the appropriate protec)on to those stateless children.
SCOPE OF PROTECTION UNDER THE PRINCIPLE OF LEGITIMATE EXPECTATION
Where there is no legal right being taken away but a legiLmate expectaLon that a certain state of affairs will conLnue (or perhaps will occur for the first Lme) and it does not, there may sLll be a right to be heard before that decision is taken.
Where there would not normally be a free-‐standing right to be heard under (a) above because no legiLmate expectaLon is taken away, but a legiLmate expectaLon of being heard is created by a promise or pracLce of being heard.
A legiLmate expectaLon which does not give rise to a right to be heard. It generates a right to substanLve fairness, not procedural fairness.
The third species of legiLmate expectaLon needs to be used with most care. Several guidelines need to be adhered to as the principle generates a right to substanLve fairness.
There should be such unfairness as to amount to an abuse of power. If a statement has created a legiLmate expectaLon that a certain decision will be taken or that it will be taken on the assumpLon that a certain fact is true, it will oken be unfair and an abuse of power to resile from it. The court will impose the requirement of fairness on the public body concerned.
The elements giving rise to a legiLmate expectaLon must be present. The main elements are that the body concerned made a representaLon which was clear, unambiguous and devoid of relevant qualificaLon; that the applicant was within the class of people to whom it was made or that it was otherwise reasonable for him or her to rely on it and that the representee relied on it to his or her detriment.
The representaLon must be made only those people who have authority (either actual or ostensible) in accordance with the law of agency to make such representaLons. However, the courts may take the simpler and perhaps more just view that if the applicant acted reasonably in relying on a representaLon because the person was senior enough and came into contact with the public and so might be expected to make such representaLon that is sufficient to trigger the legiLmate expectaLon.
The legiLmate expectaLon has to be saLsfied by the public body concerned unless an overriding interest jusLfies departure from it. It is for the court to decide whether there is an overriding reason for frustraLng the legiLmate expectaLon. This is because the key principle here is that of fairness. The raLonal pursuit of a public interest may nevertheless be so unfair to an individual as to amount to an abuse of power. At that point the courts should step in to prevent such abuse.
A legiLmate expectaLon cannot operate to prevent a lawful change of policy. The only legiLmate expectaLon is that the applicant will be treated in the light of the policy as it happens to be from Lme to Lme.