Unequal citizenship rights of Malaysian women in the conferral of citizenship

By:

Melinda Anne Sharlini

Affiliations:

Association of Family Support and Welfare Selangor and KL (Family Frontiers)

Policy Code:

2f4 Gender

Problem Statement:

Malaysian women in binational marriages do not have equal rights to confer citizenship on their overseas-born children by operation of law as Malaysian men in binational marriages. Article 14(1)(b) of the Federal Constitution allows a person born outside of Malaysia to be a citizen by ‘operation of law’ provided that their father is a citizen at the time, limiting Malaysian mothers to Article 15(2) and its related Second Schedule, where citizenship is upon application. The application process via Article 15(2) is fraught with delays—ranging between two and ten years merely to receive a response, repeated rejections without reasons and no guarantee of approval

Women in this regard face a myriad of challenges, including inconsistent bureaucratic challenges during the citizenship application process, vulnerability to gender-based violence and compromised autonomy in the public, private and civic sphere. Non-citizen children of these women face unequal access to fundamental rights while living in Malaysia.

Value(s) and Belief(s):

-

Proposal of Solution:

1) Amend Article 14(1)(b) of the Federal Constitution (in accordance with Article 8(2) which prohibits discrimination on the basis of gender) to ensure Malaysian women can confer citizenship by operation of law on an equal basis as Malaysian men on their children born overseas.

2) Develop a clear standard operating procedure that is made available on the Department of Immigration and National Registration Department’s website to enhance reliability and transparency in the processing of citizenship and visa applications for non-citizen children of Malaysians. This is to include a reasonable timeframe until a decision can be expected and detailed procedures to appeal a decision.

3) Allocate resources necessary to process the backlog of citizenship applications within a reasonable amount of time.

4) Allow the submission of citizenship applications at Malaysian Missions Overseas, including for those applying for their children over the age of one year old.

Additional Information:

Article 14(1)(b) of the Federal Constitution allows a person born outside of Malaysia to be a citizen by ‘operation of law’ provided that their father is a citizen at the time, limiting Malaysian mothers to Article 15(2) and its related Second Schedule, where citizenship is upon application. Malaysia retains its reservation on Article 9(2) of CEDAW which ensures equality in the conferment of citizenship to their children. A recent court case that was brought against the government by six Malaysian Mothers and Family Frontiers to challenge this discriminatory law (Article 14(1)(b)) against Malaysian women was met with resistance. Instead of furthering gender equality as per recommendations, the government attempted to strike the case out claiming that it was “frivolous”. The case is still in progress. Malaysian mothers who apply for citizenship for their overseas-born children encounter numerous challenges. Anecdotal evidence shows that the application process can be longer than two years, with some lasting more than five years merely to get a response on the application, and usually, if rejected, is not accompanied with a reasoning. The Parliament Hansard during the November 2020 parliamentary sitting recorded that the Ministry of Home Affairs had received a total of 14,477 citizenship applications between the start of 2019 to 15 October 2020. Of these applications, 45 have been successful, 691 were rejected, and 13,741 are still being processed. The backlog of applications is reflective of the waiting period of up to five years that some families have experienced. No effective steps have been taken towards processing the backlog of applications in a timely manner. The National Registration Department (NRD) records reveal only 138 citizenship applications were successful between 2013 to 2019 under Article 15(2), which is for children under the age of 21 whose parent(s) are Malaysian—a process women are limited to. Those denied Malaysian citizenship are required to apply for long term visas or permanent residence for their children. However, both processes are unguaranteed, arbitrary and tedious. Non-citizen children of Malaysians between the ages of 7 to 18 continue to be reliant on student visas to remain in the country, similar to any other foreign student, without any consideration of being the child of a Malaysian citizen. Those impacted were further placed in precarious situations as a result of the COVID-19 pandemic, and the border closures that accompanied the pandemic. The start of the pandemic left many Malaysian binational families stranded outside the country when the Movement Control Order began on 18 March 2020 as non-citizen spouses and children of Malaysians faced difficulties to enter the country. An issue arising from stranded family members included Malaysian mothers who were unable to register their children with the National Registration Department (NRD) because the non-citizen father was required to be present. The Ministry of Home Affairs later allowed registration without the presence of the non-citizen father in November 2020. Malaysian women (in binational marriages) overseas faced a myriad of challenges during the COVID-19 pandemic. Pregnant Malaysian women overseas faced challenges returning to Malaysia to deliver their children and had to face a dilemma between risking their lives to travel during the pandemic so they can deliver in Malaysia or risking the chances of their children securing citizenship. This is because Malaysian citizenship laws do not grant Malaysian women equal rights to confer citizenship by ‘operation of law’ on their overseas born children. In November 2020, some parents were allowed to submit applications for citizenship at some of the Malaysian Missions overseas, without requiring them to return to Malaysia. While this is a commendable effort, many parents were unable to register their children or make applications for citizenship between the start of the MCO in March until November 2020. While the children await the status of their citizenship application, children who do not have access to the foreign parent’s citizenship will have a high risk of being rendered stateless or remaining undocumented in a foreign country. Malaysian women with non-citizen children overseas were also left in vulnerable and uncertain situations, including the inability for them to return to Malaysia, even in the event of gender-based violence, toxic marriage or a divorce.

Translation

Isu dan Polisi Semasa:

Nilai-nilai dan Kepercayaan:

Penyelesaian:

Informasi Tambahan:

Article 14(1)(b) of the Federal Constitution allows a person born outside of Malaysia to be a citizen by ‘operation of law’ provided that their father is a citizen at the time, limiting Malaysian mothers to Article 15(2) and its related Second Schedule, where citizenship is upon application. Malaysia retains its reservation on Article 9(2) of CEDAW which ensures equality in the conferment of citizenship to their children. A recent court case that was brought against the government by six Malaysian Mothers and Family Frontiers to challenge this discriminatory law (Article 14(1)(b)) against Malaysian women was met with resistance. Instead of furthering gender equality as per recommendations, the government attempted to strike the case out claiming that it was “frivolous”. The case is still in progress. Malaysian mothers who apply for citizenship for their overseas-born children encounter numerous challenges. Anecdotal evidence shows that the application process can be longer than two years, with some lasting more than five years merely to get a response on the application, and usually, if rejected, is not accompanied with a reasoning. The Parliament Hansard during the November 2020 parliamentary sitting recorded that the Ministry of Home Affairs had received a total of 14,477 citizenship applications between the start of 2019 to 15 October 2020. Of these applications, 45 have been successful, 691 were rejected, and 13,741 are still being processed. The backlog of applications is reflective of the waiting period of up to five years that some families have experienced. No effective steps have been taken towards processing the backlog of applications in a timely manner. The National Registration Department (NRD) records reveal only 138 citizenship applications were successful between 2013 to 2019 under Article 15(2), which is for children under the age of 21 whose parent(s) are Malaysian—a process women are limited to. Those denied Malaysian citizenship are required to apply for long term visas or permanent residence for their children. However, both processes are unguaranteed, arbitrary and tedious. Non-citizen children of Malaysians between the ages of 7 to 18 continue to be reliant on student visas to remain in the country, similar to any other foreign student, without any consideration of being the child of a Malaysian citizen. Those impacted were further placed in precarious situations as a result of the COVID-19 pandemic, and the border closures that accompanied the pandemic. The start of the pandemic left many Malaysian binational families stranded outside the country when the Movement Control Order began on 18 March 2020 as non-citizen spouses and children of Malaysians faced difficulties to enter the country. An issue arising from stranded family members included Malaysian mothers who were unable to register their children with the National Registration Department (NRD) because the non-citizen father was required to be present. The Ministry of Home Affairs later allowed registration without the presence of the non-citizen father in November 2020. Malaysian women (in binational marriages) overseas faced a myriad of challenges during the COVID-19 pandemic. Pregnant Malaysian women overseas faced challenges returning to Malaysia to deliver their children and had to face a dilemma between risking their lives to travel during the pandemic so they can deliver in Malaysia or risking the chances of their children securing citizenship. This is because Malaysian citizenship laws do not grant Malaysian women equal rights to confer citizenship by ‘operation of law’ on their overseas born children. In November 2020, some parents were allowed to submit applications for citizenship at some of the Malaysian Missions overseas, without requiring them to return to Malaysia. While this is a commendable effort, many parents were unable to register their children or make applications for citizenship between the start of the MCO in March until November 2020. While the children await the status of their citizenship application, children who do not have access to the foreign parent’s citizenship will have a high risk of being rendered stateless or remaining undocumented in a foreign country. Malaysian women with non-citizen children overseas were also left in vulnerable and uncertain situations, including the inability for them to return to Malaysia, even in the event of gender-based violence, toxic marriage or a divorce.