Wednesday, March 28, 2018

Stateless persons who are born and bred in Malaysia

 
MALAYSIA has a statelessness problem, but not in the way that many expect. Stateless persons in Malaysia are not foreigners, migrants or even “illegals”. They are born and bred in Malaysia.
Between January and April 2018, I conducted research in Malaysia interviewing stateless persons, lawyers, paralegals, civil society groups, and academics. Over the course of examining legal cases, reading news articles, and talking to Malaysian experts working in the field, I discovered there are six categories of stateless persons in Malaysia. These six categories include:

1. persons who were citizens before Malaysian independence (including those persons who came to work in plantations);
2. persons who have lost important documentation such as birth certificates or marriage licenses;
3. abandoned children (foundlings) and adopted children born in Malaysia;
4. children of mixed marriages or children born before a marriage was registered;
5. Indigenous persons;
6. some refugees and migrants.

Malaysia’s federal constitution plainly states that every person born within the federation and is stateless after the first year of their birth is entitled to citizenship automatically. Undoubtedly, there is current legal debate about whether the federal constitution renders citizenship in this manner, culminating at Malaysia’s highest court on April 2. In resolving the differing interpretations, however, Malaysian lawmakers should apply the plain meaning rule by using the ordinary meaning of the language of the constitution. The Malaysian government has read in requirements such as the burden of a stateless person to try to obtain citizenship elsewhere before applying for citizenship in Malaysia (especially where one parent of a child possesses foreign nationality). These kinds of requirements are not written in the text of the constitution and are also an unfair requirement given that many stateless persons are not foreigners or those that crossed borders to enter Malaysia. Many are born here and have made their lives in Malaysia.  Beyond looking at the face of the constitution then, there are other compelling reasons to interpret the constitution to confer automatic citizenship to stateless persons born in Malaysia: they are Malaysians in every sense except on paper.  

The automatic right to citizenship applies to persons in five of the six categories of stateless persons in Malaysia. Of these six categories, five of them involve persons born within the federation of Malaysia. This fact alone demonstrates that for the majority of stateless persons in Malaysia, they have a genuine connection to the country and therefore an automatic right to citizenship under the federal constitution. Some of the persons have an added genuine link to Malaysia: they also have a legal parent (biological or adopted) that is a Malaysian citizen. An important consideration is that in at least four of the six categories, the majority of stateless persons involve children.

One poignant example is Rosiah Abdullah. I had the pleasure of meeting this 20-year-old, Muslim, straight-A student who was born in Malaysia, abandoned and adopted by a Malaysian citizen. Rosiah was lucky because most stateless children cannot go to school, and if they do, they cannot take exams. She was an exception, and yet even though she is fortunate to have education, she is still at a disadvantage due to her lack of citizenship. She has known no other home than Malaysia. She wants nothing more than to have the opportunity to go to university and become a contributing member of Malaysian society, but her denial of citizenship prevents her from doing so. Her status of stateless is through no fault of her own. Rosiah has applied for citizenship three times in eight years and she does not know why her application has been denied. She turns 21 at the end of the month and will enter her adult life, but will she be allowed to become a Malaysian citizen?

I also met one father, a Malaysian citizen, whose daughter is stateless. He married an Indonesian citizen and shortly thereafter, his daughter was born in Malaysia. Before his daughter was born, this father tried to register his marriage, but was told by government officials to do it after the birth of his child. Officials assured this father there would be no problems. This was a fatal decision as without the registration of his marriage, his daughter was considered “illegitimate” and could not inherit her father’s citizenship. This father expressed deep regret as had he known that his child would be rendered stateless, he would have made every effort to register his marriage. The child was born in Malaysia, has one Malaysian parent and has only known Malaysia to be her home. This father has applied for citizenship for his child three times with no success. Each time, he did not receive any reasons why his application was denied. As a result, his daughter cannot attend school. Through no fault of the child, she is being punished for an inflexible system that has labeled her as “illegitimate” and stateless.

The term stateless is often intertwined with the terms foreigners, migrants and “illegals,” but research on stateless persons in Malaysia show otherwise. Stateless persons in this country are those that have a deep and genuine connection to Malaysia. They are persons who became stateless not because they crossed borders, but because there is a lack of political will to regularise their entitled citizenship status and also a lack of assistance on the part of government officials to assist stateless persons in a humanitarian manner. They are stateless not because they are undeserving or because they are cheats or deviants. They are stateless because of bad luck, unfortunate circumstances, and the lack of understanding of the processes and documentation needed to obtain citizenship. Most of all, they are stateless because the state refuses to acknowledge in law they are members of Malaysian society.

Malaysians have a vested interest in making sure their fellow compatriots obtain citizenship. Without it, generations of children will be denied education, health care and job opportunities – all necessary to promote a healthy economy. It is a social problem, one that will cost Malaysians because in the end, it is Malaysians who will have to take care of the uneducated, the unemployed and those that come into conflict with the law. It is not sufficient to say that Malaysians should follow human rights law or should be compassionate. It is about the rule of law in Malaysia; applying the federal constitution fairly, equally and plainly to confer citizenship to those that are entitled to it.       

* Jamie Chai Yun Liew is an associate professor at the University of Ottawa, Faculty of Law (Canada).
* This is the opinion of the writer or publication and does not necessarily represent the views of The Malaysian Insight.

~ The Malaysian Insight

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