Citizenship
by Nadia Malyanah
Based on witness testimonies by Priscilla Collar, Jennifer (pseudonym) and Mebpung Akup
1. Issues of Concern[1]
1.1 Little has changed for Malaysian mothers and their foreign-born children in terms of citizenship rights over the last three years since the submission of Malaysia’s last Universal Periodic Review (UPR) report, despite multiple changes in government. Malaysia remains one of the 25 countries denying women the same rights as men in conferring citizenship to their children, due to the current provisions in the Federal Constitution.[2]
1.2 Children of Malaysian men married to foreign spouses who are born abroad are automatically conferred Malaysian citizenship as long as the child’s birth is registered with a Malaysian consulate or the Malaysian Government within the stipulated period under article 14(1)(b) of the Constitution. Currently, any Malaysian woman who wishes to obtain Malaysian citizenship for their children born overseas would have to apply to do so under the provisions of article 15(2) and subclauses 1(b) and (c) of Part II of the Second Schedule of the Constitution.
1.3 The continuous cycle of closure and reopening of international borders, as well as the various Movement Control Orders (MCO) imposed in Malaysia due to the COVID-19 pandemic since February 2020 have also created additional hurdles for these mothers and their children. These include having to make difficult decisions regarding flying back to Malaysia due to the stateless status of their child, the difficulty in acquiring long-term visas for non-citizen husbands and children as short-term visas were unavailable, vulnerability to domestic violence from non-citizen husbands and the inability to access government aid as well as public healthcare for their non-citizen children.[3]
1.4 On 18 December 2020, six Malaysian mothers, together with advocacy group Family Frontiers, filed a lawsuit via an originating summons against the Malaysian Government (“Family Frontiers case”). Suriani Kempe, in her capacity as president of Family Frontiers, stated that the citizenship application process provided by article 15(2) was not only lengthy, but applications are also often rejected because the conferment of citizenship is at the discretion of the Minister.[4] Before heading to court, these six mothers had previously attempted to apply for citizenship for their children under the procedures laid down in article 15(2). Some mothers had their applications rejected with no reasons provided for these rejections while some continue to wait for a decision.[5]
1.5 The Malaysian Government vigorously opposed the Family Frontiers case.[6] However, on 9 September 2021, High Court judge Akhtar Tahir ruled in favour of the plaintiffs and issued a landmark ruling that Malaysian women must be granted the same rights as Malaysian men in passing on citizenship automatically to their children born overseas. He also ruled that Malaysia’s citizenship laws in the Federal Constitution should not be interpreted in a manner discriminatory to Malaysian women. He then issued three court orders in favour of these mothers including a declaration that the word “father” in subclauses 1(b) and (c) under Part II of the Second Schedule to the Constitution be interpreted to include the mother, which meant the children were now “entitled to citizenship by operation of law” under article 14, provided all procedures be followed accordingly. The other court order was for the Government to extend the time for these mothers to comply with the necessary procedures, with the third and final order being for the authorities to issue the relevant documentation to give effect to the Court’s declaration.[7]
1.6 However, on 13 September, the Malaysian Government filed an appeal against this historic court decision. On September 14, they also filed an application at the High Court to stay or temporarily suspend part of the High Court’s decision until the Court of Appeal decided the appeal. This came as a surprise as there was publicly expressed support for the court decision from three federal ministers[8],[9] including the de facto Law Minister, Wan Junaidi Tuanku Jaafar.[10] On 15 November, the High Court rejected the Government’s stay application.
1.7 It should be noted that prior to the Family Frontiers case, one Mahisha Sulaiha Abdul Majeed filed a lawsuit via an originating summons against the Malaysian Government on 2 November 2019, to seek declarations that she is a Malaysian citizen based on constitutional provisions and as her mother is a Malaysian, and that a Malaysian identity card and citizenship certificate be issued to her. On 21 May 2020, the High Court rejected her suit. Mahisha then filed an appeal to the Court of Appeal. On 2 November, it was decided that both the Family Frontiers case and the Mahisha Sulaiha case would be heard together in the Court of Appeal to avoid overlapping or conflicting legal decisions.[11]
1.8 Malaysia has continued to place reservations to CEDAW article 9(2) and the UN Convention on the Rights of the Child (CRC) article 7, which concerns citizenship and nationality. While Malaysia was recently elected to the United Nations Human Rights Council (HRC) with an overwhelming majority,[12] the current Government has indicated that it will not lift these reservations. In December 2020, in a parliamentary response to Sekijang Member of Parliament (MP) Natrah Ismail’s query regarding the CEDAW Committee’s recommendation to the Malaysian Government to ensure women have equal citizenship rights to men, particularly in conferring nationality to children born abroad to foreign spouses, Deputy Home Minister Ismail Mohamed Said stated that the Government will continue to maintain its reservations to CEDAW article 9.[13]
1.9 As of November 2021, de facto Law Minister Wan Junaidi Tuanku Jaafar stated that the Conference of Rulers would be briefed on the current legal dispute over the citizenship of children born overseas to Malaysian mothers. Any proposal to amend the current constitutional provisions on citizenship would require the Rulers’ approval and possibly that of the governors of Sabah and Sarawak, as well as parliamentary approval by a two-thirds majority.[14]
2. Rights violated/standards not adhered to/failure of duty bearers (state)
2.1 The right to citizenship is one of the fundamental rights in any democracy. This has lately been acknowledged through the Federal Court’s decision in CCH & ADY v Pendaftar Besar bagi Kelahiran dan Kematian, Malaysia,[15] where it stated: “Citizenship no doubt is governed by Part III of the FC, but it is also a concept so inextricably linked to the right to life and personal liberty contained in Article 5(1). As such, any provisions on it must be construed as widely as possible.”
2.2 The right to citizenship is made even more critical in Malaysia because other fundamental rights and liberties guaranteed by the Federal Constitution are, in fact, conditional upon citizenship, including (but not limited to) the right to equality under article 8(2), right to freedom of movement under article 9, right to freedom of speech, assembly and association under article 10, as well as right to education under article 12. The denial of citizenship therefore has a twofold impact. Not only is the affected child or adult deprived of the ability to access and rely on the consequential rights of citizenship such as the right of abode, public health and education services and other public amenities, but they must also bear the heavy and often prohibitive financial burden associated with securing alternative means of access. In some instances, the deprivation of these consequential rights of citizenship can have fatal repercussions, and examples of this are illustrated in the Victim Impact section below.
2.3 The lack of automatic conference of citizenship also means that Malaysian mothers of children borne overseas must rely on the discretionary or conditional 'citizenship by registration' process under article 15(2) of the Federal Constitution. The evidence and data obtained during the Women’s Tribunal demonstrate that that process is not working out fairly or equitably for Malaysian women and their children borne overseas; it is instead onerous, arbitrary, lacks transparency and due process, and subjects them to significant financial, emotional and personal costs. The findings from the witness testimonies and advocate statements during the Women’s Tribunal are summarised in the following section.
3. Victim Iimpact
(a) Long and onerous legal process that is unlikely to succeed
3.1 Information concerning the number of citizenship applications under article 15(2) and the status of these applications can be difficult to ascertain. However, some data and information are available through parliamentary records. In a written parliamentary response to MP Bukit Gelugor Ramkarpal Singh on 26 October, the Home Ministry wrote that there were a total of 2,352 applications made by mothers who are Malaysian citizens, based on the NRD records from 2018 until 11 October 2021. While it was also stated that 21 applications were granted citizenship and 31 applications were rejected, the status of the remaining applications remains unclear.[16] Previously, the Home Ministry in a similar written reply on 20 March 2019 stated that the NRD had received 4,112 citizenship applications under article 15(2) of the Federal Constitution from the year 2013 to 15 February 2018.[17] Prior to these written replies, it was recorded in the Hansard that only a total of 142 citizenship applications under article 15(2) had been approved between the years of 2013 to 2018.[18]
3.2 This data, along with case studies gathered via the Women’s Tribunal illustrate that mothers are subjected to this onerous process at great financial and emotional cost to themselves and their children, in some cases only to end up waiting for years for an eventual rejection.
(b) Lack of transparency in the application process
3.3 Two witnesses and the advocate report a lack of transparency in the application process: like other mothers and children suffering similar predicaments, they report not being notified of the progress of their citizenship applications, and/or that the only communication they receive would be a rejection of their application without being told the reasons behind the said decision. Some applicants have reported going years waiting for a response, leaving their children in citizenship limbo with uncertain futures.[19]
3.4 This is a situation currently faced by Jennifer — her mother had filed an application in May 2016, when she was 18 years old and still met the age criteria prescribed under article 15(2). However, they have not received any response from the Government in the past five years despite numerous attempts to follow-up in person, via email and in writing to all relevant agencies including the Ministry of Home Affairs. This delay in response may eventually cost Jennifer her Malaysian citizenship as she has now passed the age of eligibility (21), despite having followed all the prescribed procedures.
3.5 Similarly, Priscilla Collar had submitted citizenship applications for both of her foreign-born daughters in December 2015, months after their permanent return to Malaysia. After nearly four years of waiting with no updates or notification on the progress of her children’s applications, Priscilla received a notification of rejection from the Ministry of Home Affairs for both applications. She also noted the Ministry’s unresponsiveness despite her multiple attempts to contact them to inquire about the progress of her applications during this period. Priscilla has since submitted fresh applications for both her children in April 2019 and has not received any decision since then — a seeming repeat of her previous predicament.
(c) Lack of empathy and understanding from government officers dealing with these cases
3.6 In Mebpung’s case, the transfer of an officer processing her identity card (IC) application directly resulted in her failure to retrieve/receive her Malaysian IC. Her subsequent applications for this document after marriage were not entertained; the official reason given was her failure to prove her place of birth and the relationship between her and her parents. It should be noted that while she was born during the Konfrontasi[20] period in 1961, no counter-evidence was produced to prove she was indeed born in Indonesia.
3.7 On the other hand, Priscilla noted how embassy officials failed to notify her of the limitation on her right to confer Malaysian citizenship on her children, despite her frequent contact with these officials during her time in France. She also reports receiving insensitive and intrusive remarks from government officials during her visits to their offices for visa-related matters. These include questions on the legitimacy of her marriage, suggestions that she remarry her ex-husband (despite the finalisation of their divorce) as well as requests for proof of maternity by way of DNA testing.
(d) Little to no safeguards for children who await citizenship application results, leaving them potentially stateless or resorting to applying for other citizenship
3.8 Priscilla had to resort to conducting visa runs for her children every 90 days between 2015 and 2017 while awaiting the results of their citizenship applications. Her children could only remain in Malaysia under tourist visas, and the process of renewing these visas required entering and exiting the country each time. Like Jennifer, who currently remains in Malaysia under a student visa sponsored by her current university, Priscilla’s children’s enrolment into international school gave them access to a yearly student visa. However, as these visas are tied to their institution of study, their right to remain in Malaysia would be affected should they finish their studies (Jennifer), or no longer be able to afford the cost of these institutions (Priscilla’s children). Notably, these children were also not offered any form of long-term visit passes or permanent residence while their citizenship applications were being processed.
3.9 Mebpung eventually decided to apply for an Indonesian passport — despite no evidence proving she was indeed born in Indonesia — as she needed official documentation to access healthcare services. This, however, continues to affect her ability to access affordable healthcare, as she is deemed a non-citizen in Malaysian public hospitals and would have to incur the higher charges levied on non-citizens should she wish to access specialised healthcare for her suspected breast cancer.
(e) Domino effect of citizenship issues have a life-long impact including vulnerability to abuse
3.10 Such citizenship woes create a situation where some members of the family have a different citizenship status to others, which has a life-long impact to the entire family unit — as seen in both Jennifer’s and to a certain extent, Mebpung’s cases. Both are the sole members of their respective families with different citizenship status — Mebpung is the only sibling in a family of nine without Malaysian citizenship.
3.11 This disparity in citizenship rights also impacts the overall emotional well-being of the family, especially when marriages break down as mothers often resort to staying in abusive relationships to avoid being separated from their children. This was a situation Jennifer herself had experienced before her eventual move to Malaysia, and the eventual divorce of her parents. Her mother faced various forms of abuse since the start of their marriage, and her sister was also not spared from physical abuse. As she is currently reliant on her student visa (which may now be non-renewable once she finishes her studies), she faces the risk of being forced to return to her estranged father’s country of origin with neither financial nor familial support.
3.12 The reliance on visas and the need to do visa runs may expose children to unnecessary security and safety risks. This was a situation faced by Priscilla when her children’s right to remain in Malaysia was solely dependent on 90-day tourist visas. Her inability to take time off work eventually forced her to entrust a friend to do the visa run in her place, which would have been impossible to execute safely had she not had such relationships of trust and support.
(f) Constant financial precarity, as well as barred access to government assistance, especially financial aid
3.13 All three witnesses face constant financial precarity due to their respective citizenship-related issues. Jennifer has resorted to continuing her studies to be able to access the student visa she needs to remain in Malaysia, as she is not able to find work due to her non-citizen status on top of the countrywide economic setbacks caused by the series of COVID-19 related lockdowns.
3.14 Priscilla has had to fork out at least RM36,000 for her children’s visa runs between 2017 to 2019 to ensure they could remain with her in Malaysia using 90-day tourist visas. She has subsequently had to pay a total of RM135,730 for her eldest and RM173,148 for her youngest between 2019 to 2021 for their education, as they are denied access to public education due to their status as non-citizens. Priscilla is now facing additional difficulties affording these high costs as her industry of work (hospitality) has been severely affected by the COVID-19 pandemic. On top of these, she also does not receive any financial support from her ex-husband for her children’s schooling and insurance and is unable to access any social welfare schemes offered by the Government for her children.
3.15 Mebpung is unable to afford medical treatment for her suspected breast cancer as she is being charged non-citizen costs in public healthcare institutions. As she currently resides in the interior area of Lawas, any trip to the hospital — be it the specialist hospital in Likas (Sabah) or the Lawas Hospital itself — will rack up transportation costs. Current COVID-19 protocols also mean there are now additional financial costs that need to be accounted for on each trip, including quarantine and swab tests.
4. Recommendations
Short and Medium term (within two to three years)
4.1 The Malaysian Government must provide safeguards for children awaiting citizenship approvals, without prejudice, in the form of a long-term social visit pass (LTSV), and eventually permanent residence (PR).
4.2 Regular training should be provided to embassy, Immigration and National Registration Department (NRD) staff on procedures and policies concerning citizenship, as well as to foster sensitivity towards challenges faced by Malaysian women and their non-citizen children.
4.3 NRD should provide regular updates to citizenship applicants on the progress and status of their applications, as well as clarification upon rejection.
4.4 The Government must immediately review and solve issues concerning visas of non-citizen children of Malaysian mothers.
4.5 The Malaysian Government must withdraw their appeal filed at the Court of Appeal regarding the 9 September Kuala Lumpur High Court decision and immediately implement the court order issued.
4.6 The Malaysian Government must lift its reservations to article 9(2) of CEDAW and article 7 of CRC.
4.7 The Government must amend subclauses 1(b) and (c) of Part II of Second Schedule of the Federal Constitution to include mothers, enabling women to confer citizenship on children born overseas on an equal basis as men. As proposed by Family Frontiers and other advocacy groups, this can be achieved by replacing the word “father” with the phrase “parents one at least”, in the said subclauses 1(b) and (c).
Endnotes
[1] There are other gendered citizenship-related issues that this paper has not managed to tackle, primari-ly due to limitations in acquiring related witness testimonies, including but not limited to citizenship of children born outside of marriage, citizenship of stateless children, citizenship of non-citizen husbands married to Malaysian women, citizenship of non-citizen wives married to Malaysian husbands, and the right of residence for non-citizen spouses. For details, see Chapter 10 on article 9 ‘Citizenship’ in Wom-en’s Aid Organisation (2019), ‘The Status of Women’s Human Rights: 24 Years of CEDAW in Malaysia’. Available at https://wao.org.my/wp-content/uploads/2019/01/The-Status-of-Womens-Human-Rights-24-Years-of-CEDAW-in-Malaysia.pdf.
[2] ‘Malaysian Civil Society Calls for Government Action to Uphold Equal Nationality Rights for Women and Men'. Global Campaign for Equal Nationality Rights. Available at https://equalnationalityrights.org/news/89-call-for-malaysia-to-uphold-equal-nationality-rights.
[3] ‘Challenges faced by Malaysian women with children born overseas during the Covid-19 crisis'. Global Campaign for Equal Nationality Rights. Available at https://equalnationalityrights.org/news/105-challenges-faced-by-malaysian-women-with-children-born-overseas-during-the-covid-19-crisis.
[4] Suraini Kempe (Presiden pemegang jawatan Persatuan Kebajikan Sokongan Keluarga Selangor & Kuala Lumpur (Family Frontiers)) & Ors v Kerajaan Malaysia & Ors [2021] MLJU 1864.
[5] ibid.
[6] Tee, Kenneth (2021). ‘Court of Appeal maintains Malaysian mums’ lawsuit seeking citizenship for kids born abroad'. Malay Mail Online. 20 August. Available at https://www.malaymail.com/news/malaysia/2021/08/20/court-of-appeal-maintains-malaysian-mums-lawsuit-seeking-citizenship-for-ki/1999124.
[7] Suraini Kempe (Presiden pemegang jawatan Persatuan Kebajikan Sokongan Keluarga Selangor & Kuala Lumpur (Family Frontiers)) & Ors v Kerajaan Malaysia & Ors [2021] MLJU 1864. See also: Lim, Ida (2021). ‘Explainer: How the High Court decided Malaysian mothers’ overseas-born children can be citizens too’. Malay Mail Online. 20 October. Available at https://www.malaymail.com/news/malaysia/2021/10/20/explainer-how-the-high-court-decided-malaysian-mothers-overseas-born-childr/2014564.
[8] Tan, Ashley (2021). ’Rina Harun welcomes High Court citizenship decision, says sheds new light on aspirations of women'. The Star Online. 11 September. Available at https://www.thestar.com.my/news/nation/2021/09/11/rina-harun-welcomes-high-court-citizenship-decision-says-sheds-new-light-on-aspirations-of-women.
[9] 'Zuraida hopes home ministry, JPN act fast to implement court ruling on citizenship'. MalaysiaNow. 10 September 2021. Available at https://www.malaysianow.com/news/2021/09/10/zuraida-hopes-home-ministry-jpn-act-fast-to-implement-court-ruling-on-citizenship/.
[10] Tawie, Sulok (2021). ‘Law minister lauds KL High Court’s decision on automatic citizenship for children born to Malaysian mothers abroad'. Malay Mail Online. 9 September. Available at https://www.malaymail.com/news/malaysia/2021/09/09/law-minister-lauds-kl-high-courts-decision-on-automatic-citizenship-for-chi/2004321.
[11] Lim, Ida (2021). ‘Appeals Court agrees Malaysian mother’s India-born daughter’s citizenship case should be heard with case of six Malaysian mums with overseas-born children’. Malay Mail Online. 2 November. Available at https://www.malaymail.com/news/malaysia/2021/11/02/appeals-court-agrees-malaysian-mothers-india-born-daughters-citizenship-cas/2017887.
[12] ‘Malaysia Elected to The United Nations Human Rights Council for the Term 2022-2024’. Official Portal of Ministry of Foreign Affairs, Malaysia. 15 October 2021. Available at https://www.kln.gov.my/web/guest/-/malaysia-elected-to-the-united-nations-human-rights-council-for-the-term-2022-2024.
[13] Oral Parliamentary reply from Deputy Home Minister to MP Sekijang in page 4 of Hansard dated 3 November 2020.
[14] FMT Reporters (2021). ‘Briefing for Rulers on citizenship of children born abroad’. Free Malaysia Today. 15 November. Available at https://www.freemalaysiatoday.com/category/nation/2021/11/15/briefing-for-rulers-on-citizenship-of-children-born-abroad/.
[15] Civil Appeal No.: 01(f)-35-11/2020(W), para. 46.
[16] Written Oral Parliamentary reply to Question 26 from MP Bukit Gelugor, dated 26 October 2021.
[17] Written Oral Parliamentary reply to Question 45 from MP Tebrau, dated 20 March 2019.
[18] Oral Parliamentary reply from Deputy Home Minister to MP Padang Serai in page 15 to 16 of Hansard dated 9 October 2019.
[19] Suraini Kempe (Presiden pemegang jawatan Persatuan Kebajikan Sokongan Keluarga Selangor & Kuala Lumpur (Family Frontiers)) & Ors v Kerajaan Malaysia & Ors [2021] MLJU 1864.
[20] Konfrontasi (also known as the Indonesia-Malaysia Confrontation) was a small-scale military conflict involving both countries from 1963 to 1966, in response to the formation of Malaysia in 1963.