By Ida Lim | Malay Mail
Esports gamer Muhammad Aiman Hafizi today won leave from the High Court to proceed with his court case to seek to be declared a citizen of Malaysia.
Aiman, who was born in Perak and will be turning 20 years old in less than two weeks’ time, has been waiting for the Malaysian government to recognise him as a Malaysian since he was a teenager.
Today was the hearing of Aiman’s application for the court to permit him to proceed to a hearing of his bid to challenge the Malaysian government’s refusal of his citizenship application.
After hearing arguments from both Aiman’s lawyer and the Attorney General’s Chambers, High Court judge Datuk Seri Mariana Yahya granted leave for Aiman’s judicial review application.
“This court is of the view, the applicant’s application firstly is not frivolous, vexatious. In fact, there is an arguable case here. But the question here is whether Article 15A can be reviewed or not, and it comes under alternative reliefs. So this court takes the stand that the court will deal with all of the reliefs at the substantive case.
“So leave is granted to the applicant,” the judge said.
Earlier, the Attorney General’s Chambers’ federal counsel Mohammad Sallehuddin Md Ali said that the government was objecting to Aiman’s judicial review application, as it was challenging the government’s special powers under Article 15A of the Federal Constitution to register citizens.
Article 15A provides for the federal government’s special powers, where it can register anyone below the age of 21 as a citizen in “special circumstances as it thinks fit”.
Sallehuddin said the government’s refusal to register an individual as a citizen using its Article 15A powers could not be challenged in court, arguing that there is an “ouster clause” under Part III of the Federal Constitution’s Second Schedule that prevents court challenges against such government decisions.
“In this case, if they are not challenging Article 15A, we are ok, because this court clearly has jurisdiction to decide whether the applicant is a citizen by operation of law; but to decide whether to register, it is for the government,” he said, stressing that it is the government’s discretion whether to register someone as a citizen.
Among other things, Aiman’s lawyer New Sin Yew highlighted that his client’s court challenge is not just based on Article 15A, noting that there are also past court judgments which stated that ouster clauses would not prevent a court from exercising its jurisdiction to hear and decide on cases.
New also pointed out that the court orders that his client was seeking to challenge the government’s Article 15A decisions were merely alternatives proposed to the court, and noted that the court could decide on such matters after a substantive hearing of Aiman’s court challenge instead of at this early stage.
In Aiman’s application, he had asked for several court orders to be declared a citizen, or alternatively to have the court quash the government’s refusal to recognise him as a citizen under Article 15A.
With the High Court’s granting of leave today, Aiman will be able to proceed with the substantive hearing of his judicial review application.
The High Court fixed August 19 for the case management of this case.
The facts of the case
On June 30, Aiman had filed his judicial review application to seek to be recognised as a Malaysian, naming five respondents namely Registrar of Birth and Death, Registrar-General of Births and Deaths, Director-General of National Registration, Home Minister and Government of Malaysia.
In his judicial review application, Aiman is seeking for several court declarations, including declarations that he is a citizen of Malaysia by operation of the law under the Federal Constitution’s Article 14(1)(b) read together with the Federal Constitution’s Section 1(a) or 1(e) of Part II of the Second Schedule.
A person born in Malaysia is a citizen by operation of law under Section 1(a) if at least one of the parents was a citizen or a permanent resident at their time of birth, or under Section 1(e) if they were not born a citizen of any other country.
He is also seeking for a mandamus order to direct the registrar and registrar-general of births and deaths to reissue his birth certificate to show his status as a Malaysian citizen within seven days of the order, and a mandamus order to direct the director-general of national registration to issue an identity card with the status of “Warganegara” or citizen within seven days of the order.
Alternatively, Aiman is seeking a court order to quash the home minister’s rejection of his citizenship application under Article 15A of the Federal Constitution, and a mandamus order to direct the home minister and Malaysian government to approve Aiman’s Article 15A citizenship application and to register him as a citizen.
According to court documents, Aiman was born on August 17, 2000 at a clinic in Taiping, Perak to an Indonesian mother and an unknown biological father, and was then given up for adoption by a Malaysian couple, with the biological mother not leaving any documents and not contactable after that.
Also according to the court documents, Aiman and his adoptive family had never been in touch or heard from his biological mother after his adoption, and they have no way to contact her and do not know where she is.
His adoptive parents registered his birth at the National Registration Department in September 2000 and later legally registered him as their adopted son, with Aiman raised in Perak and also attending schools in the same state.
When Aiman turned 12 in 2012, his adoptive parents had applied for him to be registered as a citizen under Article 15A of the Federal Constitution. But the Home Minister in 2015 rejected his citizenship application without giving any reasons.
In May 2017, Aiman’s adoptive parents again applied for his citizenship registration under Article 15A. When checking on March 1, 2019 on this second application. Aiman was told that his application had been forwarded to the home minister on August 29, 2018.
When met outside the courtroom, Aiman’s lawyer New confirmed that there has yet to be updates from the authorities on his client’s May 2017 application for citizenship registration under Article 15A.
Time is a crucial issue for Aiman’s citizenship application, as the Article 15A citizenship route only applies to those who are aged below 21.
Due to his current status as a stateless individual, Aiman has missed out on several opportunities to represent Malaysia at the regional level in esports championships and has been unable to advance his career as an esports athlete.
Aiman’s team was selected to represent Malaysia at the Southeast Asian level in the Shanghai-hosted PUBG Club Open SEA League 2019 (Spring Split) after having won second place at the national levels in the PUBG Mobile Malaysia National Championship 2019.
Although the National Esports Association of Malaysia had in August 2019 issued a letter to the home minister in support of Aiman’s application for a Malaysian passport to represent Malaysia in the championship, Aiman ultimately could not travel out of Malaysia to attend the championship as he had no passport.
Aiman’s team again won second place in September 2019 to qualify to represent Malaysia at the Southeast Asian level in a similar PUBG championship in Shanghai, China but attended the event without him, which left Aiman disappointed at being unable to compete along his team members when he had always hoped to represent Malaysia and bring glory to the country by winning the championship.
In December 2019, Aiman’s team won third place in a national esports championship involving the Call of Duty Clan Invasion game and qualified to compete at an international level in Singapore. This competition has since been cancelled by the organiser due to the Covid-19 pandemic.
When met outside the courtroom, Aiman said he is now not playing competitively in esports after his experience last year of being denied the chance to represent Malaysia abroad due to his citizenship issues.
Having passed the secondary-school leaving exam SPM and desiring to study Computer Science in local universities, Aiman is however currently unable to pursue his studies again due to his stateless status.