Citizenship Law: Inequality in Disguise?

SUARA MANDIRI Issue #3

“Citizenship is man’s basic right for it is nothing less than the right to have rights.”

- Earl Warren

Statelessness is an ever-growing problem, where every year, a total of at least 70,000 stateless children are born in the 20 countries with the highest stateless populations. This is a growing epidemic, with at least 1 stateless infant born every 10 minutes on the planet. More often than not, stateless children are deprived of proper access to education, healthcare, marriage and job opportunities throughout their lives. The COVID-19 pandemic further compounds such access, especially in terms of healthcare – including access to vaccination. In Malaysia, the situation is no different in terms of conferring citizenship, where the law only permits fathers (and not mothers) to pass on citizenship to their children. This article attempts to address the problematic nature of citizenship laws in Malaysia and highlight several suggestions for rectification.

Discriminatory Nature of Citizenship Laws: Unequal Treatment of Mothers

In conferring Malaysian citizenship by operation of law, the Federal Constitution provides the passing of nationality by a father to his child under Article 14. Further, Second Schedule (Part II) seeks to also include a similar privilege for children born outside of Malaysia. This however does not apply equivalently for Malaysian mothers with children born abroad[1] despite the existence of a genuine and substantial link between said children and this country, by virtue of their Malaysian mothers. These children are not granted citizenship by operation of law as they would with Malaysian fathers, as Malaysian mothers may only confer citizenship to their children born outside of the Federation via registration under Article 15(2) of the Federal Constitution.[2] The explicit usage of the term “father” twice in Second Schedule (Part II) of the Federal Constitution for the conferment of citizenship by operation of law creates a narrative that Malaysian citizen mothers are unequal to Malaysian citizen fathers. It clearly discriminates Malaysian women with children born abroad or is living abroad with future plans of conceiving.

In redirecting this issue of discrimination to the existing fundamental rights under Part II of the Federal Constitution, there is a clear contravention of Article 8(1) which provides that all persons are equal before the law and are entitled to equal protection of the law. The usage of the term “father” in Second Schedule (Part II) also contradicts Article 8(2) as it prohibits, inter alia, discrimination on the basis of gender. As a result of such discrimination, Malaysian women are forced to go the extra mile in applying for their children’s citizenship and face the issues that accompany the long process such as rejection due to procedural inconsistencies as well as misinformation by authorities at home and aboard.[3] In contrast, Malaysian men will only have to notify and register the birth of his child at the nearest Malaysian embassy where his wife had given birth.[4] This coincides with the sexist views that are deeply held by the authorities, stemming from the glorification of patriarchal links in Malaysia.

The harsh realities experienced by Malaysian women in dealing with the citizenship of their children are often swept under the rug as this issue is uncommon and rarely affects the masses. However, the consequence of such discrimination has significant negative impacts on the quality of life of the child. For instance, in the case of Sofia, a Malaysian citizen who gave birth to her son in the Philippines following an international project she was assigned to in that country, was left appalled when she was informed that she must apply for citizenship through Article 15(2) and her son would not be granted citizenship by operation of law[5]. Despite her efforts in making an application dated back in November 2017, there has been no updates on the application until now. Her son has to reside in Malaysia on a short-term visa despite having a Malaysian mother. There is no justifiable excuse for our law’s second-class citizen treatment of Malaysian women. The perpetuating inequalities prove that current laws do not recognise Malaysian women as equal citizens and is still largely subservient to the archaic patriarchal system.

How Have Officials Responded to Malaysia’s Problematic Citizenship Laws?

Regretfully, Malaysia is still 1 of 25 countries that restrict women from passing on their nationality to their children, and 1 of 50 countries that limit the same for women’s foreign spouses.[6] This comes in clear contravention with the vows made by the government in upholding the promotion of gender equality and as a signatory to the Convention on the Elimination of All Forms of Discrimination against Women (CEDAW), particularly Article 9(2): “State Parties shall grant women equal rights with men with respect to the nationality of their children.” The apparent elements of gender-based discrimination in the interpretation and application of the Federal Constitution with regard to Malaysian citizenship laws are clearly indicative of a more insidious, deeply-rooted problem: the continual and uncritical clinging of institutions of democracy, such as the executive and the judiciary, to outdated patriarchal attitudes. This  is further proven by the lack of sympathetic regard for the hardships faced primarily by women and the children in their care.

There have been a few instances of note where the problematic nature of citizenship laws was addressed by government officials:

In 2019, former Women, Family and Community Development Deputy Minister Hannah Yeoh lent her support to the Malaysian Campaign for Equal Citizenship, initiating meetings with the Home Ministry and the Foreign Ministry to push for not only constitutional amendments (supported by DAP) that would give women equal rights to men in passing on their nationality to their children, but also a streamlined application process that would enable women to apply for citizenship more easily during the interim period.[7] Then Home Minister, Muhyiddin Yassin, was notably absent in such discussions and also silent on the campaign.

Within the same year, the Ministry of Home Affairs (KDN) amended the SOP’s required in citizenship applications to better accommodate Article 15 of the Federal Constitution. For instance, the inclusion of a child’s welfare as a factor to be taken into account when applications for citizenship are being vetted.

In 2020, the Deputy Home Minister Datuk Seri Ismail Mohamed Said responded dismissively to the issue, claiming that children born abroad were not entitled to automatic conferral of citizenship due to the possibility of dual citizenship, and reasoned that it was a priority to protect the security and sovereignty of the country.[8]

At the end of 2020, the Home Minister, Datuk Seri Hamzah Zainudin announced in Parliament his plans to offer a 1-year window for stateless persons to bring documentary proof in order to be registered as Malaysian citizens. He went on to defend government officers from accusations of administrative delays by placing the blame on stateless applicants without proper documentation. However, this was criticised by advocates such as Development of Human Resources for Rural Areas (DHRRA) Malaysia. DHRRA Malaysia pointed out that a majority of stateless persons are trapped in their situation precisely because they do not possess the proper documentation to substantiate their applications and would less likely be able to even procure said documents within a year. Moreover, there are also other challenges that allegedly deter applications such as illiteracy, language barriers, and the requirement for the presence of 2 witnesses, at least 15 years older than the subject in order to initiate late birth registration.[9]

Klang MP Charles Santiago, Kulai MP Teo Nie Ching and Petaling Jaya MP Maria Chin Abdullah have taken it upon themselves to highlight the seriousness and scale of the issue in Parliament, particularly on how citizenship laws are lopsided against mothers, that young people were disproportionately impacted, and the heightened vulnerability of families affected. Segambut MP Hannah Yeoh has proposed a straightforward solution: to grant citizenship to every child (adopted or otherwise) with a Malaysian parent, regardless of the parent’s marital status, gender or the child’s place of birth.[10]

Evidently, there is some measure of political will among opposition parties to enact legislative changes and reform citizenship laws, but not from the executive itself. Alas, MPs are currently limited in their capacity to table bills for constitutional amendment not least due to the Emergency declaration made by the PN government, which has shut down Parliament and state legislative assemblies until such a time as decided by the Yang di-Pertuan Agong.

Devaluation of Malaysian Citizenship?

It is often argued that any changes in the law of citizenship will cause migrants and foreigners to gain an equal advantage furnished to an average Malaysian citizen. However, this argument has no merit for three main reasons. Firstly, individuals that struggle with statelessness often possess genuine and substantial links to Malaysia by virtue of either their birth parent or their birth in the Federation. This alone creates a sufficient link for them to be conferred citizenship and acquire rights as a Malaysian.[11] Hence, the individuals in question are not entirely foreigners with no significant link to this country. Secondly, the concern on opening the floodgates to foreigners and migrants is rebutted with existing built-in restrictions embedded in Malaysian citizenship laws. Further, migrants and foreign nationals are not eligible for automatic citizenship if they are not born in Malaysia or even if they have a Malaysian parent.[12] Thus, such a concern can be invalidated as the only way they may acquire citizenship is by naturalisation under Article 19 of the Federal Constitution. On top of that, the protection of citizenship still exists with the subsistence of the Bumiputera status recognised under Article 153 of the Federal Constitution. This security of position will continue to be available unless amended by way of Article 159(5) of the Federal Constitution. In summary, Migrants and foreign nationals are not conferred with the same status and privileges given to Bumiputeras. Hence, this exclusivity creates a safeguard for the value of Malaysian citizenship. 

Recommendations to Improve Current Citizenship Laws in Malaysia

As the issues raised are largely premised upon the discrepancies of laws pertaining to citizenship in Malaysia, much can be done to improve our laws on this. Firstly, Malaysian women should be able to confer citizenship to their children and partners on a similar basis to Malaysian men, especially for children born overseas during the Movement Control Order (MCO) period. This would serve as a temporary measure before full equality is bestowed as enshrined in our citizenship laws.[13] It is pertinent to highlight that Malaysian women, particularly those who are pregnant, would face difficulties when entering our country to give birth, especially during this MCO period. This is problematic because children whose Malaysian mothers gave birth overseas are not automatically Malaysian citizens upon registration, unlike children born overseas to Malaysian fathers, thus possibly rendering these children non-citizens of Malaysia. Furthermore, when it comes to Malaysian mothers, it is close to impossible for their non-citizen husbands to follow them to Malaysia at this period, given the strict restrictions imposed by Malaysian authorities within the country’s borders.

Apart from that, Malaysia, as a signatory of the Convention on the Rights of the Child (CRC), should follow the convention as closely as possible. Article 7(1) provides that the child shall be recognised immediately after birth and shall have the right to a name, the right to acquire nationality, and, to the greatest extent possible, the right to recognise and be cared for by his or her parents.[14] Article 7(2) goes on to say that States Parties must ensure that these rights are implemented in compliance with their national law and their responsibilities under applicable international instruments in this area, especially where the child will otherwise be stateless. Furthermore, the government should be able to address the issue of stateless children in Malaysia by enforcing Article 15A of the Federal Constitution.[15] This would be a step forward in ensuring children's right to nationality as under this Article, the Federal Government can, in exceptional circumstances, register any individual under the age of 21 as a citizen. Since conferring nationality or citizenship is a discretionary power of the federal government, addressing the question of stateless children in this country requires significant political will on their part. This is critical in order to achieve a prosperous future in the best interests of the child.

In essence, there is a dire need for improvements in Malaysian citizenship laws to end the perpetuation of discrimination against Malaysian mothers and stateless persons. The government must also take proactive measures to eliminate the stigmatisation of women as it makes them subservient to men in citizenship law. Given that statelessness is a matter which affects the livelihood of a person in various important aspects such as healthcare, education and job opportunities, it is highly crucial for the government to take necessary actions – more so now during this pandemic, as only Malaysian citizens enjoy the benefit of vaccinations. It can be inferred that the health and well-being of an individual in Malaysia depends largely on their status. Hence, the rectification of this issue via significant changes in the law will create a notable difference in the quality of life of stateless individuals and ultimately bring an end to their vulnerable state.

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References:

[1] Jasmine Cho, ‘Citizenship laws prove that Malaysia’s gender equality is only surface level’ Malaymail (1 December 2019) < https://www.malaymail.com/news/what-you-think/2019/12/01/citizenship-laws-prove-that-malaysias-gender-equality-is-only-surface-level/1815043> accessed 18 March 2021.

[2] Choo Chin Low, ‘Report on Citizenship Law: Malaysia and Singapore’ (2017) RSCAS <https://www.researchgate.net/publication/315488847_Report_on_Citizenship_Law_Malaysia_and_Singapore/link/58d23707aca2720cd05ed850/download> accessed 15 March 2021.

[3]‘Unequal citizenship rights for women and equality in law — Malaysian Campaign for Equal Citizenship’ Malaymail (18 August 2019) < https://www.malaymail.com/news/what-you-think/2019/08/18/unequal-citizenship-rights-for-women-and-equality-in-law-malaysian-campaign/1781803> accessed 18 March 2021.

[4] Ibid.

[5] ‘Case studies: The Lived Realities of Malaysian Women’ (FSSG, September 2019) <http://fssg.com.my/wp-content/uploads/2020/01/Factsheet-3-Eng-FSSG.pdf> accessed 18 March 2021.

[6] Iseult Honohan and Nathalie Rougier, 'Global Birthright Citizenship Laws: How Inclusive?' (2018) 65 Netherlands International Law Review <https://www.researchgate.net/profile/Nathalie-Rougier/publication/329367793_Global_Birthright_Citizenship_Laws_How_Inclusive/links/5e0b0c6092851c8364a6f60c/Global-Birthright-Citizenship-Laws-How-Inclusive.pdf>.

[7] S. Indramalar, 'Malaysia's Unequal Citizenship Laws Are Leaving Families In Distress' (The Star Online, 2019) <https://www.thestar.com.my/lifestyle/family/2019/09/27/malaysia-unequal-citizenship-laws> accessed 25 March 2021.

[8] 'Malaysian Mums File Constitutional Challenge Against Alleged Gender Bias In Country’S Citizenship Law | Malay Mail' (Malay Mail, 2020) <https://www.malaymail.com/news/malaysia/2020/12/18/malaysian-mums-file-constitutional-challenge-against-alleged-gender-bias-in/1933225> accessed 25 March 2021.

[9] Ida Lim, 'Here’S Why Stateless Individuals Face So Many Challenges In Being Recognised As Malaysian Citizen, Home Minister Told | Malay Mail' (Malay Mail, 2020). <https://www.malaymail.com/news/malaysia/2020/12/15/heres-why-stateless-individuals-face-so-many-challenges-in-being-recognised/1932203> accessed 25 March 2021.

[10] Ibid.

[11] Jamie Chai Yun Liew, The Administratively Stateless and The Promise of The Principle of Genuine and Effective Links (ResearchGate 2019)  <https://www.researchgate.net/publication/342710789_Homegrown_Statelessness_in_Malaysia_The_Administratively_Stateless_and_the_Promise_of_the_Principle_of_Genuine_and_Effective_Links> accessed 15 March 2021.

[12] Ibid.

[13] Harrington C, 'Challenges Faced By Malaysian Women With Children Born Overseas During The Covid-19 Crisis' (Equalnationalityrights.org) <https://equalnationalityrights.org/news/105-challenges-faced-by-malaysian-women-with-children-born-overseas-during-the-covid-19-crisis> accessed 23 March 2021.

[14] Yusoff, R. C. S., Afandi, N. H. M. B., Hashim, N. M., & Hak, N. A. (2019). Protecting the Children’s Right to Nationality in Malaysia: An Appraisal. International Journal of Academic Research Business and Social Sciences, 9(6), 358–368.

[15] Mohamed Razali R, Addressing Statelessness In Malaysia: New Hope And Remaining Challenges (5th edn, The Institute on Statelessness and Inclusion 2017) <https://files.institutesi.org/WP2017_09.pdf> accessed 24 March 2021.