KUALA LUMPUR, Dec 14 — Children born in Malaysia should not be penalised for being the illegitimate offspring of their Malaysian fathers and foreign mothers, said a group critical of the government’s proposal to strip the group of their constitutional protection from being made stateless.
Development of Human Resources for Rural Areas (DHRRA) Malaysia, a non-governmental organisation that handles and collects data on cases of childhood statelessness in Malaysia, said the government’s stated intention behind the proposed removal of the constitutional safeguard against statelessness was “exceptionally harsh and disconnected from the actual situations on the ground”.
Yesterday at the Dewan Negara, Deputy Home Minister Datuk Seri Shamsul Anuar Nasarah had said the reason why the government proposes to amend the Federal Constitution — by removing Section 1(e) of Part II of the Second Schedule in the Federal Constitution (which is read together with Section 2(3)) — was to avoid this provision from being “misunderstood and misused to obtain citizenship for individuals who are not qualified such as illegitimate children and claim that they do not have any citizenship at birth”.
Under Section 1(e), every person born within Malaysia who is not born a citizen of any country would be Malaysian citizens by operation of law (or automatically because the law says so), while Section 2(3) states that a person would be treated as having at birth any citizenship which are acquired within one year of their birth.
(In court, Malaysia-born individuals — who were abandoned at birth, or were born to Malaysian fathers and non-Malaysian mothers out of wedlock — have often argued that their not obtaining any citizenship from other countries within one year of their birth mean they should be recognised as Malaysians, under Section 1(e) and Section 2(3).
The Malaysian government has meanwhile argued that illegitimate children cannot take on their Malaysian father’s nationality, but should take on their non-Malaysian mother’s nationality due to the Federal Constitution; and has further argued that this means such children would have to prove they are truly stateless. Such children would typically show the court that their non-Malaysian mother’s country of origin’s embassy had certified they do not have passports from those nations, with the outcome then depending on the court’s evaluation of the facts and laws on a case-by-case basis.)
Civil society groups who advocate for stateless persons in Malaysia have highlighted the importance of Section 1(e) as a safeguard to prevent more individuals in the country from becoming stateless.
Today, DHRRA said the deputy home minister’s explanation of the proposed removal of Section 1(e) to prevent alleged “misuse” by groups such as illegitimate children “does not hold water as this law is not applicable if one already has another country’s citizenship”.
“This reasoning is not only unfounded but also misguides the public’s perception of the issue of statelessness,” DHRRA’s director of social protection Maalini Ramalo said in a statement today, pointing out that those who are already citizens of another country would not be able to be recognised as Malaysian citizens under Section 1(e).
“Secondly, the government should treat all children equally, regardless of whether they are born inside or outside of wedlock, when determining their eligibility for citizenship. Malaysia is one of only two countries globally that discriminate against men in passing their nationality to children born out of wedlock,” DHRRA added.
Based on the Malaysian government’s interpretation of the Federal Constitution in court cases, children born in Malaysia cannot automatically be Malaysians even if they have Malaysian fathers, if their father was not married to the non-Malaysian mother at the time of the child’s birth.
“This law has long been a source of statelessness, and it needs reform. The increasing instances of statelessness in the country are mainly caused by the inability of Malaysian men to pass on citizenship to their children. This discrimination against innocent children, leaving them without citizenship, lacks religious or positive developmental justification for the country,” DHRRA said.
DHRRA noted that Malaysia has yet to establish adequate safeguards to prevent statelessness among children in Malaysia, and cautioned that removing Section 1(e) from the Federal Constitution would mean genuine stateless cases would not have a pathway to Malaysian citizenship and the government could in the long term avoid recognising that stateless persons exist in Malaysia.
DHRRA argued that Section 1(e) in the Federal Constitution does not require children to prove their parents’ identity.
DHRRA also highlighted the importance of Section 1(e) in protecting children from becoming stateless in situations such as when the Malaysian parent is “missing”; or when the Malaysian parent has died; or when the child has already exceeded the age of 21 years old and does not have any provision in the Federal Constitution to rely on to apply for citizenship despite being stateless.
DHRRA pointed out that Malaysia’s former prime minister Tunku Abdul Rahman had during parliamentary debates on January 31, 1962 on citizenship law changes said that modification of the jus soli principle — or citizenship based on birthplace — “will not apply to any case where the result would be to render the child stateless.”
“In this case, no child should lose his birthright through the sins of the father,” DHRRA concluded.
Earlier in its statement, DHRRA said it was increasingly dismayed at the government’s current approach and alleged “waning commitment to address citizenship and statelessness issues affecting Malaysian families”, saying this contradicts the promises made during the November 2022 elections before the current government was voted in and initial statements made by the government.
“Exactly a year ago, on December 14, 2022, Home Minister Datuk Seri Saifuddin Nasution Ismail expressed his hope to resolve citizenship issues faced by Malaysian mothers and the stateless. The article highlighted his strong awareness of the burdensome impact of outdated citizenship laws on the lives of Malaysians, particularly stateless children, hindering their right to a proper life,” it said, citing a news report last year.
“However, since then, in June 2023, the Home Ministry has gradually introduced proposed amendments to citizenship laws that not only represent a step backward but also eliminate rights granted in the Federal Constitution, thereby removing protection for stateless children in vulnerable situations,” it said, citing these children as being those born out of wedlock to Malaysian men, stateless children who were adopted and stateless children who were abandoned.
“The government needs to be accountable to its election promises and only stick to amendments that reduce statelessness and not do exactly opposite,” DHRRA said today.
Children who are stateless are those who are not citizens of any countries in the world, and there are thousands of such children in Malaysia still denied citizenship because they were born out of wedlock or are still stateless even though they have been legally adopted by Malaysians.
While some children may have birth certificates to prove that they were born in Malaysia, their stateless status means they would be deprived of many privileges and benefits that Malaysians enjoy, such as smooth access to affordable education and affordable healthcare, and would also not be able to obtain a driving licence, open a bank account, or use e-wallets.
