KUALA LUMPUR, March 25 — The Malaysian government should not delete the category of having at least one permanent resident (PR) parent for a Malaysia-born child to be entitled to Malaysian citizenship as it would affect children born to stateless Bumiputera parents who are still permanent residents only, the Malaysian Citizenship Rights Alliance (MCRA) said today.
The MCRA, which is a network of civil society organisations and activists working on stateless issues, instead provided recommendations for the government to prevent statelessness from being passed down through generations within native communities in Malaysia.
MCRA said it understands the real concerns about social and institutional problems leading to cross-migration in border states, and went on to offer recommendations — which could strengthen protections for the natives or Bumiputera communities in Sabah, Sarawak and Peninsular Malaysia while also addressing those concerns at the same time.
The MCRA was responding to the government’s Bill, which was tabled in Parliament today and which proposed to change citizenship laws in the Federal Constitution by only allowing children born in Malaysia — to at least one Malaysian citizen parent at the time of the child’s birth — to be entitled to Malaysian citizenship.
Currently, the Federal Constitution’s Second Schedule’s Part II’s Section 1(a) provides that “every person born within the Federation of whose parents one at least is at time of the birth either a citizen or permanently resident in the Federation” would have Malaysian citizenship by “operation of law” or automatically. In other words, currently, having either at least one Malaysian parent or having at least one parent who is a PR parent would enable their locally-born child to automatically be Malaysian.
The government’s Bill plans to delete the word “permanently resident” from Section 1(a), which means a Malaysia-born child who has at least one PR parent (at the time of the child’s birth) would not be entitled to automatic Malaysian citizenship, and would result in such children having to apply to the government to be registered as a Malaysian citizen and which means the decision of whether they would be a Malaysian would be up to the government’s discretion to decide. MCRA had previously said this would be a regressive amendment.
“For Section 1(a), the government cannot just remove ‘permanently resident’ as this will affect children of Malaysian permanent residents who have lived here all their lives; specifically Orang Asli and Orang Asal,” MCRA said in a statement here, referring to the indigenous communities or natives in Peninsular Malaysia as well as Sabah and Sarawak respectively.
Instead, MCRA suggested the alternative wording by requiring the PR parent to have been born in Malaysia, in order for the Malaysia-born child to be entitled to automatic citizenship.
The MCRA’s suggested alternative wording would be for Section 1(a) to be amended to be: “every person born within the Federation of whose parents one at least is at time of the birth either a citizen or a person who was born in and is permanently resident in the Federation”.
“This will protect the children of stateless Orang Asli and Orang Asal with permanent resident status, while preventing children of non-nationals who are PR holders from accessing citizenship by operation of law,” it said when showing how the government could still prevent automatic Malaysian citizenship for children of non-Malaysians who are PR holders without negatively affecting the children of stateless Malaysia-born PR holders.
Earlier today, in comments made available to Malay Mail, the MCRA said its suggested alternative wording for Section 1(a) is a “compromise to protect against intergenerational statelessness”.
“Our recommendation requires the PR holder to be born in Malaysia for their child to be a citizen by operation of law. If the PR holder was not born in Malaysia, their child may only be citizen by registration,” it said.
In the comments, MCRA gave the example of a Sabah native or an ethnic Indian from the estates during the Malaya era who were both born in Malaysia but only has a red identification card (IC) which denotes their status to be PR, saying that its alternative wording would mean the children of such individuals should continue to have automatic Malaysia citizenship (citizenship by operation of law).
“Whereas an immigrant who comes to Malaysia who is given a red IC, we accept that their children should have to apply for citizenship (citizenship by registration),” it said in the comments when acknowledging that such children can be required to make applications for Malaysian citizenship.
MCRA also said it is equally important for the Malaysian government to resolve the root cause of some of these problems by ensuring tighter border controls and better monitoring of corrupt practices.
In its comments, MCRA also suggested alternatively that another way the government could reduce any risk of abuse of Section 1(a) is to introduce new citizenship provisions in the Federal Constitution to require those who assert their status as natives to have their applications supported on oath — such as by their community leader or Mahkamah Anak Negeri or Second Class Magistrate. MCRA said such new provisions must also ensure these applicants have a right to appeal.
Yesterday, the MCRA had already said the government should not delete “permanent residents” as a category of individuals whose Malaysia-born children would be entitled to Malaysian citizenship, pointing out that PR holders does not necessarily mean those who are foreigners, as many PR holders are actually those who have been born and lived in Malaysia for generations.
MCRA had yesterday said three categories of children would be negatively impacted if the government removes “permanent resident” parents from Section 1(a), namely children born to stateless Orang Asli and Orang Asal parents (who until today only have PR status and have not been recognised as Malaysians); children born to third-generation ethnic Indians and ethnic Chinese in Peninsular Malaysia (who have for generations only been given PR status and are still stateless); and children born to an adopted stateless child (namely a stateless person who was adopted as a child and is now an adult parent but is still stateless and only has PR status).
What are MCRA's other recommendations?
When commenting on the same government Bill, MCRA today also recommended the government to not reduce the age limit from 21 to 18 years old for a number of citizenship provisions in the Federal Constitution, as it said the paramount consideration should be ensuring the protection of children and young persons.
“However, if the government insists on reducing the age limit, we suggest that the government consider introducing a grace period of three years before enforcing these amendments (to subsections (15(2), 15A, 19(1), 19(2), 23(1), 23(3), and 26A)) to ensure that young persons caught in the transition period are not denied their right to citizenship,” MCRA said.
While the government Bill’s explanatory note states that the lowering of the age limit is for consistency with the age of 18 in three laws (Malaysia’s minimum voting age, the Age of Majority Act 1971 and the Child Act 2001’s definition of a child), MCRA in its comments said the proposed lowering of the age is inconsistent with other existing laws which protect children’s rights and which define children as those aged below 21 (such as the Adoption Act 1952, the Guardianship of Infants Act 1961, and the Law Reform (Marriage & Divorce) Act 1982).
The government’s Bill today also proposed to amend Article 26(2) to give the government power to strip off Malaysian citizenship from a foreign wife if her marriage to her Malaysian husband is dissolved within two years of her obtaining Malaysian citizenship. (Currently Article 26(2) enables the government to deprive Malaysian citizenship from such a woman if her marriage to her Malaysian husband is dissolved within two years of the marriage.)
As Malaysia does not recognise dual citizenship, a foreign wife would have had to give up the citizenship of their country of origin when she obtained her Malaysian citizenship. MCRA had yesterday cautioned that this planned amendment could trap a previously-foreign wife in a violent marriage to avoid becoming stateless if she ends the marriage within two years of becoming a Malaysian.
“However, such wives can be protected by expanding the protection under Article 26B(2) to include Article 26(2), so that a foreign wife shall not be deprived of her Malaysian citizenship if the deprivation will render her stateless,” MCRA said today when recommending what could be done.
Currently, Malaysian fathers’ overseas-born children are entitled to automatic Malaysian citizenship, but Malaysian mothers’ overseas-born children do not enjoy the same right of being entitled to automatic Malaysian citizenship and instead have to apply for citizenship by registration — which can take years to process and can also be rejected by the government.
The government’s Bill today included long-awaited amendments — seen by MCRA and civil society as “progressive” — to finally enable Malaysian mothers to pass on their Malaysian citizenship to their overseas-born children.
These amendments are to Section 1(b) and Section 1(c) of the Second Schedule’s Part II (which had both only mentioned the word “father”), by changing the requirement for overseas-born children to be entitled to Malaysian citizenship if at least one of their parents is a Malaysian (instead of the current wording which required their “father” to be a Malaysian).
But commenting on Section 1(b) and Section 1(c), MCRA highlighted that the government’s Bill will only apply to children born after the amendments come into effect as law, saying that “this means that any child who is now above 21 has no effective pathway to citizenship”.
MCRA said this also means that the progressive amendment to Section 1(b) and Section 1(c) will not apply to children born before the Bill becomes law, and that such children will remain at risk of being stateless and that “none of the existing cases will be solved”.
“We recommend the government include a transitional provision for children born overseas to Malaysian mothers who are not able to take advantage of the amendments,” MCRA said.
In other words, MCRA wants a “transitional provision” to be added on to enable existing Malaysian mothers’ overseas-born children to benefit from the new amendments to Section 1(b) and Section 1(c).
The government’s Bill today has two “savings” provisions, namely for the citizenship status of any person born in Malaysia or born outside of Malaysia as well as any pending citizenship applications - before the date of these amendments taking legal effect - to be dealt with as if the Federal Constitution had not been amended, if the new amendments become law and come into operation.
In other words, the new amendments tabled today will not have retroactive effect if they become legally enforceable, and will only have legal effect on those born or made citizenship applications after the amendments become law.
Read here for Malay Mail's summary of some of the key amendments that the government is proposing via the newly-tabled Bill known as the Constitution (Amendment) Bill 2024.
The full government Bill can be found here.
