Securing Citizenship: A Matter of Gender

For many families, citizenship for their newly born children is hardly a matter that requires much cause for concern. However, in recent years, many Malaysian families have spoken up about the institutional barrier that they face in attaining what is considered as their children’s birthright: Malaysian citizenship. These barriers that exist in the form of policies have existed for 64 years, and have mainly affected Malaysian mothers with foreign spouses, including those who reside overseas. With most facing injustices like family separation and difficulties accessing residence, education and healthcare for their children, this issue has been largely considered as one of gender discrimination, with Malaysian women’s children being denied citizenship rights that their male counterparts are provided with. Nevertheless, recent events have provided these affected families with the hope that institutional changes will be implemented. 


On the 18th of December 2020, six Malaysian mothers joined a non-profit organization, The Association of Family Support and Welfare Selangor & KL (Family Frontiers), in filing a suit at the High Court to advocate for the right of obtaining citizenship for children born abroad to Malaysian mothers and foreign fathers. Among this group of women was Malaysia’s former squash champion, Choong Wai Li, whose 7-year-old son was denied citizenship despite residing in Malaysia. Choong Wai Li is only one of the many mothers who have faced this obstacle, with 14, 477 citizenship applications made to the National Registration Department in 2019 to 2020, and only 45 of those applications approved whilst 13, 741 still remained as being in the midst of processing. 

As a counter-argument, the rejection of automatic nationality for children born to Malaysian mothers overseas was cited as being a matter of national security and sovereignty by Deputy Home Minister Ismail Mohamed Said in December of 2020. Such restrictions were enforced to ensure that the grant of dual-citizenship to these children could be prevented as children born overseas typically obtain their father’s citizenship. 

According to Family Frontiers, children who were born overseas to Malaysian mothers were not recognized as Malaysian and would then have to take on their father’s nationality. By this reasoning, these children were not provided with an Emergency Travel Document by the Malaysian Overseas Missions to enable them to return to Malaysia to apply for their citizenship. As these children were born on foreign land, they would require legal status via visa or citizenship, which urges Malaysian parents to apply for their non-Malaysian spouses’ citizenship for their children, lest the child be deemed stateless—a status that could implicate the child’s access to basic rights like education, healthcare and housing. With most of these children being regarded as non-Malaysians, their legal guardians are typically expected to fulfill additional costs for schooling, health insurance and visas, which may be financially burdening for these families, which deters many families from returning home to Malaysia.

After a long legal battle, a monumental decision by the High Court on the 9th of September 2021 ruled that automatic citizenship should not only be conferred by Malaysian fathers to their children, but should also include Malaysian mothers. Justice Datuk Akhtar Tahir, the decision-maker of this ruling, reinstated that there would be no policy change pertaining to this matter, but rather that the interpretation of ‘father’ in the law regarding automatic citizenship should be interpreted to be inclusive to Malaysian mothers so that gender discrimination is curbed. 

However, four days after this announcement on the 13th of September 2021, the court decision was appealed by the Malaysian government, which prevented the High Court from implementing the court decision in full effect immediately. Following this appeal, Family Frontiers initiated a petition addressed to the Malaysian government, Home Minister Datuk Seri Hamzah Zainudin, the National Registration Department’s director-general and the Home Ministry, urging that this appeal be withdrawn, garnering over 250,000 signatures from Malaysian citizens. Many parties view this as a major setback in ensuring justice for women and are continuing to shed light on the matter via social media through the #TarikBalikRayuan (translation: #Withdraw The Appeal) and #SayaJUGAAnakMalaysia (translation: #I Am Also A Malaysian Child) campaign, which aims at urging the government to withdraw their appeal and continue with the initial court ruling that was made on the 9th of September 2021. 

After gaining 30, 000 online signatures for the petition, Family Frontiers and 20 Malaysian mothers from its Collective of Mothers for Equal Citizenship handed over the petition to the government (represented by Foreign Minister Datuk Saifuddin Abdullah) on the 23rd of September 2021. Along with this petition, Family Frontiers also presented an open letter to the government, which described the experiences of various Malaysian mothers concerning the ways in which the citizenship law has impacted their children’s lives. 

On the 24th of September 2021, it was reported that the cabinet would maintain its appeal and stay of execution application regarding the High Court’s ruling. According to News Straits Times, Home Minister Datuk Seri Hamzah Zainudin explained that this decision was made in order to prevent the government from being subjected to contempt of court and to ensure that the provisions of the Federal Constitution would be complied. According to the Home Minister, there were two High Court cases that dealt with the issue of automatic citizenship for Malaysian mothers overseas, and that both cases resulted in different judgements, which led to the government’s decision to continue their appeal. 

The High Court announced on the 27th of September that a stay application by the Malaysian government will be heard on the 15th of November 2021. Home Minister Datuk Seri Hamzah Zainudin also reportedly stated that the matter would be referred to the Conference of Rulers in order to receive consent in implementing constitutional amendments regarding automatic citizenship. Until then, Malaysians all over the world eagerly await the High Court’s decision.

The Legalities

The law that was challenged by Family Frontiers was Article 14(1)(b) of Malaysia’s Federal Constitution along with Part II Section 1(b) of the Second Schedule, which states that: 

Subject to the provisions of Part III of this Constitution, the following persons born on or after Malaysia Day are citizens by operation of law, that is to say:

(b)every person born outside the Federation whose father is at the time of the birth a citizen and either was born in the Federation or is at the time of the birth in the service of the Federation or of a State.

The main argument against this policy was that fathers and mothers were not recognized as having equal legal rights, and consequently it is inherently discriminatory in nature against women. Thus, this would be incongruent with Article 8(2) of the Federal Constitution, which states that:

Except as expressly authorised by this Constitution there shall be no discrimination against citizens on the ground only of religion, race, descent or place of birth in any law or in the appointment to any office or employment under a public authority or in the administration of any law relating to the acquisition holding or disposition of property or the establishing or carrying on of any trade, business, profession, vocation or employment.

Prior to this court ruling, Malaysia was one of the 25 countries that retained its citizenship laws; a relic from British colonial rule. Despite ratifying the United Nation’s Convention on the Elimination of All Forms of Discrimination against Women (CEDAW)—an international treaty focused on promoting women’s equality and rights—in 1995, Malaysia refrained from carrying out changes on its clause concerning citizenship rights. This could be seen in Article 9 of Malaysia’s CEDAW, which outlines that a Malaysian woman can apply for her child to be registered as a citizen at the Malaysian Consulate within a year of the child’s birth. Malaysia and Brunei remain the sole ASEAN countries to maintain these laws after Indonesia amended its nationality laws back in 2006.

The Problems Endured by Malaysian Mothers

It’s particularly counterintuitive that of either Malaysian parent, it’s the mothers, the birth-givers, who face a plethora of difficulties if she has a child overseas. One would think that the very vessel carrying a potential citizen of Malaysia for 9 months or so would have a considerably justified reason to pass her citizenship on to her child. However, this has been the case for Malaysian mothers for too long. Up until recently, Malaysia was among only 25 countries that do not grant mothers with equal rights as their male counterparts to pass on their citizenship to their children. 

    Among the implications that Malaysian mothers have faced include the burdensome administrative process of applying for citizenship for their child. There have been countless reports from mothers stating that the process is unnecessarily arduous, and at the end of it all there is no confirmation that it would even be successful in granting their child Malaysian citizenship. This remained to be the case even if applicants fulfill all requirements under such applications. There have also been cases where, upon giving birth to a child, if a Malaysian mother wants to return to the country, their child must take on a foreign passport for them to return to the family. This is because they will simply not be issued a ‘Surat Perakuan Cemas’ which is a travel document in the case that they lose a passport or they are to be repatriated to the country (in this case it is the latter). 

    Under such conditions, a child must wait to be issued a Malaysian citizenship under Article 15 of the Federal Constitution of Malaysia, which states: 

“(1)Subject to Article 18, any married woman whose husband is a citizen is entitled, upon making application to the Federal Government, to be registered as a citizen if the marriage was subsisting and the husband a citizen at the beginning of October 1962, or if she satisfies the Federal Government-

(a)that she has resided in the Federation throughout the two years preceding the date of the application and intends to do so permanently; and

(b)that she is of good character.

(2)Subject to Article 18, the Federal Government may cause any person under the age of twenty-one years of whose parents one at least is (or was at death) a citizen to be registered as a citizen upon application made to the Federal Government by his parent or guardian.”

During this delay, the stateless child would be left in an insecure legal status in a foreign country, meaning they would have difficulty in accessing crucial services like healthcare and education. In the case of danger, the child would be vulnerable to the risk of violence and left completely unprotected by the state. 

    As hard as it has been for Malaysian mothers and their ‘stateless’ children, these issues have been amplified ten-fold during the COVID-19 crisis over the past year. Malaysian women who were pregnant while overseas at the height of the pandemic were put between a rock and a hard place as they had to choose between making the perilous journey back home with all sorts of restrictions or giving birth while away and risk automatic citizenship for their own children. These laws have proven particularly gender-discriminatory as they put Malaysian women in vulnerable and difficult situations during times of crisis like the pandemic. With pregnancy already being a heavy enough burden to bear, Malaysian soon-to-be mothers have been plagued with the worry of their child not having the deserved protection and services, if they are born overseas.

An additional issue faced when applying for citizenship is that the child’s foreign father must be present during the registration process or long term visas will not be given to the child to stay in the country. This issue has caused much distraught for Malaysian mothers as they were forced to stay back in the countries previously travelled to even if the pandemic situation in these countries persistently worsened: Italy, South Korea, and the United States of America. This was the case as their non-citizen spouses and children were only granted short term visas which were not applicable for them to stay in the country during the initial travel ban.

    Malaysian women with non-Malaysian children who require special medical attention and care have also needed to depend on services from private institutions, which are considerably more costly, as their non-Malaysian children do not have access to public healthcare services. Furthermore, governmental aid during the Covid-19 crisis was also inaccessible to some Malaysian mothers with stateless children as their applications were not approved since the eligibility requirements for Malaysians with foreign spouses remained unclear. This meant that Malaysian mothers with ‘stateless’ children were unable to access the aid they would’ve required in these dire circumstances. 

Status Quo

In light of the statement made by Deputy Home Minister YB Dato’ Sri Dr. Ismail Mohamed Said, expressing that the inability for Malaysian women to confer citizenship onto their overseas-born child is linked to national security and sovereignty, countless activists, NGOs such as Awam and Malaysian mothers themselves have stepped out and petitioned against this law. 

On Thursday, September 9th 2021, the Kuala Lumpur High Court ruled that Article 4(1)(b), “must be read in harmony with Article 8(2), which prohibits discrimination on the basis of gender.” Upon reading out his decision, High Court Justice Akhtar Tahir said: “the grievances of the plaintiffs are real.. the discrimination is apparent.”

Spelling out victory and relief for Malaysian mothers overseas, it was finally declared that the word “father” must be read to include mothers, and that their children are entitled to Malaysian citizenship by operation of law.

 While this triumph has restored the hopes of Malaysian mothers overseas for their children, there is still much to do to secure a constitutional change regarding this issue. The public continues to urge the government to pass a bill that would properly address the grievances of these mothers and their children’s apparent ‘statelessness’, granting them the well-deserved assurance of being regarded as ‘Anak Malaysia’.

 

Written by: Julia Rosalyn and Hannah Rahel

Edited by: Jamie

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