2g3: Undocumented Persons

Preamble

Citizenship is a fundamental human right guaranteed by Article 15 of the

Universal Declaration of Human Rights. A life without citizenship is a futureless

life. Children and adults who are stateless do not have equal access to basic

human rights and opportunities accorded to citizens, including the right to

education, healthcare and employment. In Malaysia, the stateless community is

also excluded from social protection and access to public services and facilities.

These exclusions increase their vulnerability to a number of social problems and

health-related issues, particularly in the current COVID-19 era.

To make matters worse, Malaysian laws do not recognise stateless people as a

specific category of residents. Malaysia also has not acceded to international

accords pertaining to stateless persons–i.e. the 1961 Convention on the

Reduction of Statelessness and the 1954 Convention Relating to Status of

Stateless Person. We are also not a signatory to the 1951 Convention Relating to

the Status of Refugees, which safeguards other vulnerable populations such as

refugees and asylum seekers from statelessness.

While commendable, the commitment made by Prime Minister Dato’ Sri Ismail

Sabri Yaakob to protect all children regardless of their race, religion, citizenship

or other status, in his World Children’s Day speech on 18 November 2021 is not

reflected in the existing law, policies, procedures and practices which continue to

deter individuals born in Malaysia, as well as those with valid linkages to the

country, from accessing Malaysian citizenship.

I: Gender-discriminatory Nationality Law & Policies

Whilst the Federal Constitution promotes equality and prohibits gender

discrimination through Articles 8(1) and 8(2), these provisions are undermined by

the prevalence of gender discrimination in other areas of the Constitution,

specifically those dealing with citizenship.

For example, the Federal Constitution does not allow men to transfer nationality

to their children if the child is born out of a legally recognised marriage (Section

17, Second Schedule, Part II); instead, the law only provides that stateless

children born to unmarried couples would take on the mother’s nationality. In

other words, children born to parents who are not bound by common law

marriage in Malaysia can only acquire Malaysian citizenship if the mother is a

Malaysian citizen.

Historically, the Federal Constitution had been interpreted as not allowing legally

married mothers to transfer nationality to their overseas-born children on the

same basis as legally married fathers. Although in April 2010, the Home Minister

announced a new regulation enabling Malaysian women married to foreigners to

register their children born outside the country as a citizen under Article 15 (2),

the purported change in policy neither guaranteed citizenship to overseas-born

children of Malaysian mothers nor streamlined their citizenship application

process. Hence, children in such situations continued to be stateless or placed at

risk of statelessness if they were unable to acquire their father’s nationality.

And although the High Court, in a landmark judgement on 9 September 2021

reinterpreted the Federal Constitution to grant Malaysian women equal rights to

confer automatic citizenship on their overseas-born children in the case filed by

Family Frontiers and six Malaysian mothers, the Government is appealing against

this decision, indicating its dead-set position on this.

Of equal concern is the denial of citizenship to spouses of Malaysian citizens who

have lived in Malaysia for many years. This particularly affects spouses of

Malaysian women who do not have the option of “citizenship by registration”—

an option stated in the Federal Constitution for spouses of Malaysian men. This

is despite the fact that Article 9 of CEDAW, to which Malaysia is a party,

explicitly obliges state parties to guarantee equal nationality rights, including the

right for both men and women to confer their nationality on their spouses.

Malaysia, though, places reservation on Article 9(2) relating to this.

1. Accept and implement the High Court judgement in Suriani Kempe &

Ors v Malaysian Govt & Ors.

Withdraw the appeal against the 9 September 2021 decision in the case of Suriani

Kempe & Ors v Malaysian Govt & Ors that interpreted the word “father” in Article

14(1)(b) read with Section 1(b), Part II of the Second Schedule of the Federal

Constitution to include “mothers” and as such granted Malaysian women equal

rights to confer automatic citizenship on their overseas-born children.

2. Amend the gender-discriminatory nationality law to ensure all children

born in Malaysia or to Malaysian parents are able to obtain Malaysian

citizenship.

(Firdaus Husni, MCCHR, Proposal 2G3-1)

i. Article 14 of the Federal Constitution must be amended to include

citizenship for: children born overseas to Malaysian mothers; and

children who are born in Malaysia but cannot prove the fact or that they

are born to Malaysian parents.

ii. Section 17, Part II of the Second Schedule must be amended to allow

Malaysian mothers to confer citizenship to children born outside of

Malaysia.

iii. Laws must be amended to remove the discrimination against illegitimate

children or adopted children.

3. Amend the relevant provisions in the Federal Constitution to enable

Malaysian citizens to confer nationality on foreign spouses on an equal

basis, irrespective of the citizen spouse’s gender.

(Maalini Ramalo, Right2Citizenship Cluster, CSO Platform for

Reform, Proposal 2G3-2)

II. Childhood Statelessness

When a child does not have any form of legal identification, she or he is often

subjected to exclusion from cradle to grave–from being denied access to

education, healthcare, employment and freedom of movement, to other basic

rights and opportunities allowing for growth and progress as an individual. Whilst

the extent of childhood statelessness in Malaysia remains unmapped and is

therefore unclear, the affected children include the following:

i. children of migrant workers, asylum seekers and refugees, whose births

are often not registered because their parents are undocumented;

ii. children born to parents with mixed nationality who are not married, and

where the mother is not a Malaysian citizen;

iii. adopted stateless children;

iv. children born in welfare homes, foundlings and street children who

often lack documentation due to discriminatory policies and poverty;

v. indigenous children who, despite being born in Malaysia, face barriers in

acquiring legal documentation due to factors such as family migratory

lifestyle, poverty, lack of awareness of the importance of obtaining

documentation and isolation from government authorities; and

vi. foundlings who are no longer considered “newborn”.

4. Ensure bureaucratic compliance with constitutional safeguards against

childhood statelessness.

i. Ensure the comprehensive application of existing safeguards provided

by the Federal Constitution to grant nationality to every child born in

Malaysia who will otherwise be stateless, regardless of the gender,

ethnicity, documentation or immigration status of the child’s parents.

ii. Grant nationality to all children who are stateless or at risk of

statelessness, including foundlings and adopted children.

(Maalini Ramalo, Right2Citizenship Cluster, CSO Platform for

Reform, Proposal 2G3-2)

5. Remove the reservation on Article 7 of the UNCRC.

Article 7 of the UNCRC affirms every child’s right to a nationality. Malaysia’s

reservation on this article, despite being a party to the convention, further denies

stateless children born in Malaysia an avenue to uphold their right to a

nationality.

(Maalini Ramalo, Right2Citizenship Cluster, CSO for Platform

Reform, Proposal 2G3-2)

6. Facilitate the integration and admission of stateless, undocumented and

displaced children into the national education system.

i. Have clear directives and implementation measures to support the

integration and admission of stateless, refugee, undocumented and

displaced children into the national education system.

ii. Recognise alternative schools and learning centres operated by NGOs

and community-based organisations that cater for stateless and displaced

children.

iii. Allow stateless and displaced children to sit for public examinations and

obtain certification.

iv. Allow stateless and displaced children to compete for enrolment in

public universities with the same fees as locals.

(Rahayu, Buku Jalanan, Proposal 2G3-3)

III. Right to Nationality for Every Person

The right to citizenship remains inaccessible for some communities in Malaysia,

resulting in grave human rights challenges to these communities. Of particular

concern is the Bajau Laut (Sama Dilaut) who reside predominantly around the

coast of Sabah, many of whom do not have identity documents and whose births

are often not registered. Though there are no estimates available as to the overall

number of Bajau Laut affected by statelessness, the number of children affected

is thought to be high due to their high birth rates, migratory lifestyle and lack of

documentation. A similar predicament is faced by the Orang Asli community.

The absence of legal identification documents, which prevents these

communities from accessing basic public services and other services to sustain

their life, increases their vulnerability, which is further worsened by prohibitive

citizenship application procedure and current practices being upheld by the

Home Ministry and National Registration Department. The lag in

implementation of the newly enforced standard operating procedure results in a

backlog of applications, and it is typically the case that no valid reasons are

provided for rejections of applications.

7. Create a statelessness identification system.

Issue every stateless person a personal identification card that carries a photo,

renewable every three years and approved as a legal form of identity by banking

institutions and other public domains that require a picture identification.

(Rosita MH Khan, Kelab Amal Prihatin Wanita Tapah, Proposal 2G3-4)

8. Streamline citizenship application.

Ensure applicants have easy access to the correct citizenship application forms

and timely decision making on citizenship matters for them. In accordance with

natural justice, unsuccessful applicants should also be provided a full explanation

for the negative outcomes of their application.

(Maalini Ramalo, Right2Citizenship Cluster, CSO for Platform

Reform, Proposal 2G3-2)

Concluding Remarks

The COVID-19 pandemic has left the stateless community in Malaysia in a most

vulnerable state. Now, more than ever, collective and committed efforts are

required from all stakeholders, especially the government, in addressing the

denial of nationality to stateless individuals born in Malaysia who have a valid link

to the country. It is not enough for the government to voice commitment in

words; more importantly, this commitment needs to be translated into concrete

actions to ensure the issue is effectively addressed, and to avoid its escalation into

more severe societal and national concern.