KUALA LUMPUR, March 18 ― It’s the year 2022, and Malaysian mothers are still finding it more difficult to get their children born in foreign countries recognised as Malaysian citizens, while Malaysian fathers don’t seem to face similar difficulties.
Previously, we looked at the National Registration Department’s (NRD) records as disclosed in a November 2021 parliamentary reply, which showed Malaysian mothers having only a 15.10 per cent success rate in having their children born abroad to non-Malaysian fathers being recognised as Malaysians over a period of about 12 years.
In other words, just 951 of 6,296 Malaysian citizenship applications for their children were approved during the 2010 to October 11, 2021 period.
A combined 78 per cent were either rejected (2,241 applications) or still being processed (2,725 applications).
Compare this to Malaysian mothers whose children were born in Singapore to non-Malaysian fathers, and to Malaysian fathers whose children were born in any foreign country.
If we exclude applicants with “no information” listed for their descent or religion, the NRD records show a success rate of over 99 per cent for such Malaysian mothers with Singapore-born children or for such Malaysian fathers.
Even if we exclude applicants with “no information” listed for their descent or their religion, the success rate for Malaysian mothers who gave birth to children overseas (in any country except Singapore) does not change.
They are just stuck with a high rejection rate of more than 30 per cent and more than 40 per cent of applications still being “processed” (sometimes for years and years before any decision is made).
But why? Why do Malaysian mothers with overseas-born children have a harder time compared to their Malaysian male peers or to Malaysian mothers with Singapore-born children, when it comes to ensuring their children can be Malaysians just like them?
1. Finding clues in the Federal Constitution
Under Article 14(1)(b) of the Federal Constitution, every person born on or after Malaysia was formed in 1963, and fulfilling any of the conditions in Part II of the Second Schedule of the Federal Constitution are “citizens by operation of law”. This basically means they are automatically entitled to be Malaysian citizens or are citizens because of the law, if they meet the conditions.
Part II of the Second Schedule covers both births inside and outside of Malaysia.
Under Part II’s conditions to be entitled to Malaysian citizenship, Section 1(b) and Section 1(c) provides the conditions of being born outside of Malaysia and “whose father” at the time of their birth is a Malaysian citizen (along with other requirements such as registering the child’s birth with the Malaysian consulate or Malaysian government within the required time), while Section 1(d) provides the condition of being born in Singapore and having at least one Malaysian parent at the time of their birth.
Malaysian mothers fit in under the Section 1(d) condition easily when their child is born in Singapore, which means their children can easily be recognised as Malaysian.
But for Malaysian mothers whose children are born in any country except Singapore and are married to foreigners, the Malaysian government currently holds the view that the Part II conditions do not enable their children to be automatically entitled to be Malaysians.
The difference is clear when we look at the citizenship procedures for children born to Malaysian mothers in Singapore, and those born in a foreign country that is not Singapore:
On the NRD’s website, the frequently-asked-questions (FAQ) section on citizenship assures Malaysian parents with Singapore-born children that they need not register their child with the representative office in Singapore, and need only apply for a confirmation of citizenship with the NRD and to then apply for a certificate of status from the Immigration Department if their child plans to live in Malaysia in the future.
In the Malay language version of the same section on the NRD’s website, it tells Malaysian mothers married to foreign spouses that they can apply for Malaysian citizenship for their child born overseas under Article 15(2).
Unlike Article 14(1)(b) where Malaysian citizenship is automatic if all conditions are fulfilled, Article 15(2) would depend on the federal government’s decision on whether to register any person ― aged below 21 and who has at least one Malaysian parent ― as a Malaysian citizen, if the person’s parent or guardian applies for the citizenship registration.
Malaysian mothers have pointed out that Article 15(2) is a long process, and with no guarantees that their children may be recognised as Malaysians after years of waiting for the government’s decision.
Imagine finally receiving an answer to the Article 15(2) citizenship application after many years (even up to three or four), only to be told you were rejected but without any reason given. You can then repeat the process again if you have not yet reached the age limit of 21.
The NRD’s FAQ section carries a question on whether a person can appeal if their citizenship application was rejected despite the person believing that he or she had fulfilled all conditions, with the NRD’s answer being: “The government is not yet satisfied with your application. The decision by the minister is final but if you still intend to become a Malaysian citizen, you may submit a new application.”
2. The Federal Constitution says no to discrimination, and the 1960s-era citizenship conditions
Wouldn’t it seem unfair that only Malaysian mothers face such difficulties in having their overseas-born children recognised as Malaysian citizens?
In December 2020, six Malaysian mothers who were waiting years and years for their children to be recognised as Malaysians and the advocacy group Family Frontiers, filed a lawsuit at the High Court.
The six Malaysian mothers argued that the Section 1(b) and Section 1(c) citizenship conditions ― which only mentioned having a Malaysian “father” as a requirement to let overseas-born children be Malaysians ― discriminated against women.
Malay Mail’s check of the Federal Constitution showed that Section 1 of Part II of the Second Schedule ― including Section 1(b) and Section 1(c) ― was added through a constitutional amendment and has been in force since September 16, 1963; and that it had existed in its current form since then without any changes (except for an amendment on August 9, 1965 which removed all mentions of Singapore and Singapore citizens on the same day as Malaysia’s expelling of Singapore from the federation).
In a constitutional amendment that came into effect on September 28, 2001, Article 8(2) of the Federal Constitution was amended to protect Malaysians from being discriminated against due to their gender in any law. After gender discrimination was disallowed under the Federal Constitution, the Federal Constitution’s citizenship conditions ― in place since the 1960s ― was however not amended to remove gender discrimination.
3. High Court says ‘father’ in Malaysia’s citizenship conditions should include ‘mother’
The six Malaysian mothers who filed the lawsuit then asked the High Court to declare that the Section 1(b) and Section 1(c) citizenship conditions were in breach of Article 8, and that these two provisions should be read harmoniously with Article 8 for the word “father” to also include “mother” of overseas-born children.
On September 9, 2021, the High Court agreed that the Section 1(b) and Section 1(c) citizenship conditions were discriminatory, and suggested that those constitutional provisions that only mentioned the word “father” could have been due to historical reasons such as fathers being the ones who typically had to travel outside of Malaysia unlike now when anyone can travel easily.
Saying that the Federal Constitution should be interpreted to meet the needs of current time, the High Court ultimately declared that the word “father” in those two constitutional provisions must be interpreted to include the “mother” of children born outside of Malaysia, and said that Malaysian citizenship-related documents should be given to such children of Malaysian mothers who had complied with the necessary procedures.
With the High Court’s September 2021 decision, Malaysian mothers would not have to apply through the lengthy and difficult process under Article 15(2), as their children would automatically be entitled to Malaysian citizenship under Article 14(1)(b) just like the children of Malaysian fathers with foreign spouses.
In other words, the High Court decision removed the problem of gender discrimination and finally gave Malaysian women equal rights to pass on citizenship to their children ― the same rights that Malaysian men have been enjoying for the past 58 years.
But the Malaysian government on September 13, 2021 filed an appeal against the High Court’s decision.
4. Does the Federal Constitution need a written update?
Yes, the Malaysian government thinks so. At least, based on what ministers have been indicating.
For example, Home Minister Datuk Seri Hamzah Zainudin had on September 22 sought to justify the government’s filing of the appeal, by saying this was to prevent breaching the Federal Constitution while the government pursues the process to amend the Federal Constitution.
Hamzah had said the Home Ministry was planning a new government policy to amend the Federal Constitution to make things easier for Malaysian mothers married to foreigners and who gave birth overseas, adding that such constitutional amendment on citizenship matters requires assent from the Conference of Rulers in line with the Federal Constitution’s Article 159(5).
In a December 1, 2021 written parliamentary reply to Bukit Gelugor MP Ramkarpal Singh, Minister in the Prime Minister’s Department (Parliament and Law) Datuk Seri Wan Junaidi Tuanku Jaafar said that the government had formed a committee chaired by him to study proposed amendments to Article 14(1)(b) regarding overseas-born children of Malaysian mothers, as well as study the laws and practices in other countries, carry out consultations with stakeholders and analyse the results of discussions with stakeholders.
Wan Junaidi said the committee expects to finalise its findings within the six-month period before presenting it to the Cabinet for approval and subsequently to the Conference of Rulers for assent. (He said any proposed amendments to citizenship conditions in the Federal Constitution require the Conference of Rulers’ assent and also at least two-thirds majority support from MPs.)
He said the Conference of Rulers had on November 23, 2021 given its assent or agreed to the formation of such a committee and that it had also taken note that the committee is expected to present the results of its consultation and studies in six months’ time.
If the six-month period is calculated from November 23, this could mean the committee’s results may be available by late May 2022 ― which would be about nine months since the High Court’s September 2021 decision that the Malaysian government could have chosen to give effect to instead of appealing.
8. Some brief hope, but uncertainties remain
On March 15 this year, Deputy Home Minister II Jonathan Yasin told the Dewan Rakyat that the Malaysian government will proceed with the appeal that is scheduled to be heard on March 23 by the Court of Appeal, adding that the government would then decide what to do next after there is a decision from the court.
Even though Bukit Gelugor MP Ramkarpal Singh highlighted that the Malaysian government can actually withdraw the appeal, Jonathan continued to say that the government would wait for the Court of Appeal’s decision in the case before deciding its next steps.
Ahead of the March 23 hearing at the Court of Appeal, the Malaysian government had already failed twice in its attempt to stay or suspend the High Court decision in order to avoid issuing citizenship papers to the overseas-born children of Malaysian mothers while waiting for the appeal hearing.
(This includes the Court of Appeal’s December 22, 2021 decision to reject the government’s attempt to delay giving the citizenship papers, which meant the government would have to issue those documents when applied by overseas-born children of Malaysian mothers even before the appeal is heard on March 23.)
Three Malaysian mothers who were part of the lawsuit and who had submitted their documents on December 29, 2021 were finally asked by the NRD to present themselves on February 21, 2022 at the NRD’s headquarters, with their three children then receiving their Malaysian citizenship certificates and are believed to be the first to obtain the papers as a result of the High Court’s decision.
On February 21, Family Frontiers president Suriani Kempe said the High Court decision applied to all Malaysian mothers with overseas-born children (and not just those in the lawsuit), but said that Malaysian mothers who went to submit their documents had experienced a lack of procedural clarity among NRD branches and Malaysian embassies or high commissions abroad.
“Some mothers were given a list of different requirements and varying instructions when submitting their documents. It seems that some embassies/high commissions did not even receive instructions from Putrajaya.
“There needs to be clear guidelines that standardise the confirmation of citizenship for children, to ensure that Malaysian mothers do not have to jump through additional bureaucratic hoops that Malaysian fathers have never had to, in order to ensure their foreign-born children receive citizenship,” she had said then.
Family Frontiers had also highlighted then that affected Malaysian mothers are struggling to cope with the emotional and bureaucratic rollercoaster, with mothers in Malaysia having to rush back and forth to government departments for student visas and to seek confirmation for their children’s school enrolment, and those overseas waiting to be able to return to Malaysia with their mothers after more than two years of the Covid-19 pandemic.
6. What Malaysian mothers are doing
After the Malaysian government filed the appeal, Family Frontiers on the same day in September 2021 started an online petition to ask the government to withdraw its appeal against the High Court decision that had recognised Malaysian women’s equal rights to citizenship.
The online petition on Change.org collected 10,000 signatures in just 24 hours, and was presented to the Malaysian government as represented by Foreign Minister Datuk Saifuddin Abdullah on September 23, 2021 with almost 30,000 signatures. At the time of writing, more than 42,800 signatures have been collected on the petition which urges the government to uphold the High Court decision.
On March 15, Family Frontiers together with Freedom Film Network and in collaboration with The Fourth launched a website to highlight unequal citizenship laws in Malaysia and to also share individual stories of Malaysian mothers with overseas-born children and their struggles.
7. P/S: It’s tough for Malaysian fathers with Malaysia-born children
But it’s not just Malaysian mothers who are having difficulties, due to what civil society has described as gender inequality in Malaysia’s citizenship laws.
In August 2019, the UNHCR, Unicef, and the Global Campaign for Equal Nationality Rights jointly released a report titled “Gender Discrimination and Childhood Statelessness”.
In the report, Malaysia is listed together with the Bahamas and Barbados as being the only three countries globally where citizenship laws both deny mothers the equal right to confer nationality on their children (while having some safeguards against statelessness) and also deny fathers the equal right to confer nationality on their children born outside of a legal marriage.
Apart from Malaysia and the two other countries, the report stated only 22 other countries as having similar restrictions against mothers, namely those where mothers are not allowed to confer nationality on their children with no or very limited exceptions (Brunei, Iran, Kuwait, Lebanon, Qatar, Somalia, Eswatini); mothers disallowed the equal right as fathers to confer nationality but with some safeguards against statelessness (Bahrain, Burundi, Iraq, Jordan, Kiribati, Liberia, Libya, Nepal, Oman, Saudi Arabia, Sudan, Syria, Togo, United Arab Emirates); mothers disallowed such equal rights but having provisions that ensure statelessness will only arise in very few circumstances (Mauritania).
In Malaysia, citizenship laws enable a baby ― which a Malaysian mother gave birth to in Malaysia despite being not legally married to the father ― to be entitled to Malaysian citizenship.
But in situations where a baby is born in Malaysia to a Malaysian father who was not legally married to a non-Malaysian mother, the government has so far interpreted the Federal Constitution’s citizenship provisions to say that such children of illegitimate birth should follow the foreigner mother’s citizenship instead.
Such children of Malaysian fathers also have to go through a citizenship application process that often takes years to be processed and have also in many cases resorted to going to court.