NOVEMBER 2 — As an organisation actively involved in addressing statelessness within the Malaysian community since 2004, Development of Human Resources for Rural Areas (DHRRA) Malaysia is deeply concerned by the recent parliamentary response provided by the Home Minister Datuk Seri Saifuddin Nasution Ismail with regard to proposed amendments to Malaysia’s nationality law. We are particularly perturbed by the Minister’s analogy, "...say a Rohingya refugee mother marries an illegal migrant from Indonesia and a child is born out of their undocumented parents, constitutionally the child is a citizen by operation of law”, which not only misleads but also diverges significantly from the core reasons for which local CSOs, including DHRRA, have been vehemently advocating against the proposed amendments. These changes threaten to remove the existing protections in the Federal Constitution that safeguard stateless children born to Malaysian families and foundlings from statelessness.

While it is understandable that governments may have legitimate concerns about the status of foreign individuals in the country, it is equally important to ensure that the rights and interests of Malaysian citizens are protected. As clearly and adequately communicated by DHRRA during a series of engagements with the Home Minister and the representatives of the Home Ministry, the genuinely stateless people in Malaysia are those who are born in the country and have never left the country since birth. They have not migrated or arrived from foreign countries, but instead are children of Malaysian families. This includes children born out of wedlock to Malaysian fathers, adopted stateless children, foundlings and abandoned children. Their statelessness is not due to fault of their own but rather due to the gaps in nationality law, policies and administrative procedures in the conferral of Malaysian citizenship.

Although the Federal Constitution upholds gender equality and prohibits gender-based discrimination through Article 8 (1) and 8 (2), these principles are undermined by provisions in the nationality law, which link a child’s citizenship status to the mother’s citizenship and the marital status of the child’s biological parents. This results in Malaysian fathers being unable to automatically pass on citizenship to their children born out of a valid marriage. Whilst children neglected or abandoned by both parents become stateless when they lack information about their biological parents to fulfil the citizenship application requirements. These children’s plights do not end when they are adopted by Malaysian parents. Although the Adoption Act provides that the position of adopted children is the same as that of biological children, there is an absence of guidelines or administrative procedures regarding the implementation of the related constitutional provisions. Based on DHRRA’s experience, adoptive parents must apply for citizenship for their children under Article 15A, which often results in repeated rejection.

Thus far, Section 19B of Part III of Second Schedule, alongside Section 1(a) and Section 1(e) of Part II of the Second Schedule of the Federal Constitution have provided a potential pathway for foundlings, children separated from parents with no proof of parentage, and children born to stateless parents to acquire automatic citizenships. However, proposed amendments threaten to remove the applicability of these sections, denying these vulnerable children the right to citizenship by operation of law.

DHRRA’s ongoing efforts to identify and register stateless persons have resulted in the identification of over 16,000 genuinely stateless persons in Peninsular Malaysia from 2016 to June 2023. An estimated 7,000 of them have successfully gained Malaysian citizenship, while the remaining 9,392 are still stateless. The majority of those who remain stateless in DHRRA’s database are children born out of wedlock to Malaysian fathers, abandoned children or foundlings. Our extensive experience in assisting stateless people to obtain citizenship has revealed that the acquisition of citizenship via registration, as suggested by the Home Minister, is not a viable option for stateless children. The process is complex and comes with various challenges including stringent eligibility requirements and lengthy processing time, depriving these children of Malaysian families their rightful nationality rights.

It is truly disheartening that the Home Ministry is proceeding with the tabling of the regressive proposed amendments despite continuous advocacy efforts by CSOs urging the ministry to uphold the best interests of stateless children especially within Malaysian families. It is more disappointing that the Home Minister equates the dire circumstances of foundlings and abandoned children without a trace and link to any other country, with that of migrant children who still have a country to call their own. The tendency of authorities to group and treat in-situ stateless individuals similarly to the various groups present without valid documentation in the country must stop. For that, as DHRRA has been strongly advocating over the years, Malaysia must establish a Stateless Determination Procedure (SDP).

We hope that the Home Minister will comprehend the real messages and causes advocated by DHRRA and the impacted Malaysian families themselves, and ensure that any amendments made to the nationality law prioritise the protection of Malaysian families. We thank the Home Minister for engagement through the Parliamentary Special Select Committee (PSSC) on Women, Children & Community Development and the committee on Human Rights, Election and Institutional Reform, to have accepted CSOs request to engage on the proposed citizenship amendments. The Home Ministry delegation was led by Datuk Haji Ruji bin Haji Ubi and various division heads of National Registration Department (NRD). Despite CSOs in attendance requested for mitigation plans to address problems at hand and if the ‘flood gate’ and ‘foreigners’ narrative was data backed, no concrete explanation was given. We urge the Ministry, to maintain open and transparent communication with the CSO and the public, providing updates on their progress and explaining the steps they are taking.

Lastly, we implore elected representatives, including Members of Parliament (MPs) play a crucial role in representing the interests and concerns of their constituents in Malaysia, particularly in cases involving statelessness and citizenship issues. Statelessness is a significant problem that affects Malaysian families, and it is essential for elected representatives to advocate for solutions. Please do not turn a blind eye towards piles of ‘stateless application’ files lying in your service offices despite knowing their proven strong links to Malaysia.

*This is the personal opinion of the writer or publication and does not necessarily represent the views of Malay Mail.