Is there light at the end of the tunnel for the stateless?

In the final part of this series on statelessness and mental health, we navigate the laws on citizenship in Malaysia, constitutional amendments that could take place and solutions, if any.

THE recent proposed amendments to Malaysia’s Federal Constitution (FC) on citizenship have sparked controversy and debate among civil society groups, activists, human rights organisations as well as the Malaysian Bar over the past few months.

The amendments are described as ‘regressive’ as they could potentially worsen the issue of statelessness in the country.

Among the initial key amendments deemed regressive are proposals to amend Section 19B of the Second Schedule, Part III and Section 1(e) Part II of Schedule 2 of the FC.

Section 19B of the Second Schedule, Part III of the FC provides that foundlings are given automatic citizenship by operation of law, granting them the benefit of the doubt regarding the date and place of their birth and the identity of their biological parents, which are unknown and cannot be substantiated.

Civil society groups and human rights organisations believe that the amendment to replace citizenship by ‘operation of law’ to citizenship by ‘registration’ will deprive foundlings and abandoned children of automatic citizenship.

This amendment will require foundlings or abandoned children to register for citizenship, and this will be at the discretion of the Home Minister.

Meanwhile, Section 1(e) Part II of the Second Schedule states that every person born within the Federation, who is not a citizen of any country otherwise than by virtue of this paragraph would also be citizens by operation of law.

Civil society groups argue that amending this provision, which has been regarded as one of the key provisions in preventing statelessness, will deprive children born out of wedlock, those who are adopted or foundlings, and the indigenous communities of their rights to automatic citizenship by ‘operation of law’.

Following significant controversy and backlash, Home Minister Datuk Seri Saifuddin Nasution Ismail decided, on March 22, to drop the two proposed amendments.

However, other proposed amendments to the citizenship law have been brought to Dewan Rakyat – the lower House of Parliament of Malaysia – for the second reading on March 25.

Age limit lowered

The amendments include a proposal to amend Clause (2) Article 15 of the FC to lower the age limit for applying for citizenship by registration from 21 to 18, aligning it with the voting age in Malaysia and the definition of child under Child Act 2001 and the age of majority under the Majority Act 1971.

By lowering the age limit, children, especially stateless children applying for citizenship under Article 15(a), will have a limited window to apply.

Given the complex bureaucratic procedures that could take years to process the applications, civil society groups argue that many would not be able to complete their registration within the given timeframe.

Another controversial proposed amendment is on Section 1(a) Part II of the Second Schedule, which is to delete the words ‘permanent resident’.

This section provides that only a child born in the Federation, with at least one parent who is a citizen at the time of birth, is eligible for citizenship by operation of law.

However, after the amendment, a child born in the Federation with at least one parent at the time of birth, is a permanent resident, is no longer eligible for citizenship by operation of law.

When tabling the bill for the second reading, the Home Minister stated that individuals with permanent resident status in the country were not Malaysian citizens.

As such, he said the children born in Malaysia would follow their parents’ citizenship; hence, there should be no issue of children born to permanent residents who would be left stateless.

Another amendment proposes to repeal Article 16A of the Federal Constitution, which civil society groups argue will further cause more statelessness in the country, especially in states like Sabah and Sarawak.

In this regard, Maalini Ramalo, the director of social protection of the non-governmental organisation (NGO) Development of Human Resources for Rural Areas Malaysia (DHRRA Malaysia), cautioned that should Article 16A be repealed, it would cause the elderly stateless permanent residence losing access to citizenship application, especially in Sabah and Sarawak.

Citizenship in Sabah, Sarawak

Article 16A of the FC provides for citizenship by registration for persons resident in Sabah and Sarawak on Malaysia Day.

It states that anyone of 18 years old or above, and lives in Sabah or Sarawak on Malaysia Day, can apply to become a citizen by September 1971 if they have lived there for at least seven out of the 10 years before applying, including the last year; of good character; and intends to reside permanently in Malaysia.

In addition, if he had made the application before September 1965 and under age of 45 years old at the date of application, he must have a sufficient knowledge of the Malay language or the English language or, in the case of an applicant ordinarily resident in Sarawak, the Malay language, the English language or any native language in current use in Sarawak.

For the record, as at June 30, 2018, there were a total of 269,899 permanent resident card-holders in Malaysia, and the majority were in Sarawak with a total number of 75,440.

Another proposed amendment viewed ‘regressive’ is the plan to amend Article 26(2), which is to allow the federal government to revoke the citizenship of any married foreign woman who obtained her citizenship through Clause (1) Article 15 of the FC, if the marriage caused by which the woman is registered, dissolves within two years from the date of marriage.

The proposed amendments have not been passed, and are expected to be debated in the Dewan Rakyat in the coming sitting.

An end to statelessness?

Malaysia is not a signatory of the 1954 Convention Relating to the Status of Stateless Persons and the 1961 Convention on the Reduction of Statelessness.

Nevertheless, the Federal Constitution of Malaysia contains the provisions to address statelessness in the country.

Maalini said for Malaysia to end statelessness, the government must respect the Federal Constitution.

She pointed out that Article 14(1)(b) Second Schedule Part II, Section 19B of the Federal Constitution, recognises newborn foundlings as nationals of Malaysia, which is the state in which they are found.

He or she is presumed to be born to a mother who is a permanent resident in Malaysia, and the location where they are found is presumed as their birth place, and the date of finding will be considered as their date of birth.

“Foundling children should be given citizenship. The government has to honour that provision,” she stressed.

Another provision is Article 14 (1)(b), Second Schedule Part II, Section 1e of the Federal Constitution, which states that a child who is born in Malaysia and has not acquired nationality from any other state within one year of birth, is a Malaysian citizen by operation of law.

According to Maalini, this provision is called the ‘constitutional safeguard on statelessness’.

“We sort of use this term to say that this is a ‘catch-all’ provision. It does not have an age limit and does not have limitation to the category of statelessness you belong to.

“As long as your Malaysian family is stateless, you should be given automatic citizenship as well,” she said.

Maalini called upon the government that it must immediately resolve the issue of statelessness in the country because, unlike migrants of refugees, stateless people would never be able to leave Malaysia.

“Migrants should not be part of our conversation because they are individuals with a working permit in this country. Therefore, their situation should never overlap the issue.”

Maalini said for a long-term solution to the issue of statelessness, Malaysia must give equal rights to both men and women to pass on their citizenship to their children.

Children made to pay

Malaysia is one of the countries, alongside Barbados, that restricts men from passing their citizenship to their children who are born out of wedlock.

This restriction, said Maalini, became the main contributor to the issue of statelessness in Malaysia.

“Clearly, this is not a problem of Islamic value or non-Islamic or religious matters. A child should not be punished without citizenship for the sins of the parents.

“Let us just focus on the children and address this inconsistency where men and women are given equal rights to pass on citizenship to their children, regardless of their marriage status,” she said.

Meanwhile, Anne Baltazar, founder of Advocates for Non-Discrimination and Access to Knowledge (ANAK) based in Sabah, said one of the strategies to end statelessness would be for Malaysia to remove its reservations with respect to five articles of the Convention on the Rights of the Child signed in 1995.

She pointed out that although Malaysia accepted the provisions of the Convention on the Rights of the Child, it had placed reservations on certain provisions, including those concerning nationality.

“Removing these reservations would ensure that every child has a right to nationality,” she said.

Anne also called upon the federal government to drop its plan to amend the citizenship laws, which has been highly criticised and viewed as ‘regressive’ by many parties in recent months.

She pointed out that proposed amendments would further exacerbate statelessness in the country, especially in Sabah, which had long struggled with the issue.

“It is a good thing that the government now allows Malaysian mothers who give birth overseas to pass down their citizenship to their children.

“But the other amendments, just leave it as it is, because it will create more statelessness. It will only make the situation worse.”

Breaking the chains

Statelessness is a complex and critical issue that has far-reaching consequences for affected individuals and communities.

Through the experiences shared by the affected individuals in this special report, we learned that statelessness has severely impacted their lives.

It has both direct and indirect implications, in that statelessness deprived them of basic human rights, including access to education, employment, healthcare and freedom of movement.

Furthermore, the prolonged denial of citizenship for this marginalised community causes not just constant worry and uncertainties about their future and that of their next generations, but it also can lead to more severe forms of mental health issues such anxiety, depression, trauma, and even suicide, if not addressed urgently.

While some NGOs are working to provide mental health support, a lack of funding, awareness and support for this group continue to become a barrier to reaching the larger stateless communities throughout Malaysia, including in Sarawak.

Ultimately, Malaysia must take concrete steps to end statelessness, starting by fully upholding provisions in its constitution that aim to prevent and reduce statelessness.

This includes allowing equal rights for Malaysian mothers and fathers to pass down citizenship, removing reservations related to nationality under the Convention on the Rights of the Child, and reconsidering the proposed amendments to citizenship laws that are criticised as ‘regressive’.

* Jenifer Laeng is a recipient of the Khazanah-Wolfson Press Fellowship 2024 at University of Cambridge in the United Kingdom.