JULY 10 — Malaysia clearly needs to make progress, not reversals, in removing explicit discriminatory laws and unequal treatment on the basis of gender, birth status and other unjustified criteria, leading to statelessness. This intergenerational anomaly in most cases affects the most vulnerable segments of society, namely, women and children, with far reaching consequences for their basic rights.

As academics working passionately alongside civil society partners and legal advocates in pushing for revisions and reforms of existing discriminatory policies and laws on citizenship that have produced massive inequalities, we are equally perturbed by the possible regressive moves that look set to give rise to state-manufactured statelessness, incredulously, during the so-called historic transition to a more just and democratic government.

It would be ignominious to backpedal on our existing adherence to internationally recognised standards in preventing statelessness either conspicuously or otherwise. The right of a foundling (a child of unknown parents whose place of birth is known to be in the territory of the state that found her/ him) to be presumed having the nationality of the country where the child was found exposed/ abandoned until proven to the contrary constitutes customary international law, supported by sufficient state practice and opinio juris (the belief that such practice is obligatory as a matter of law). This provision clearly upholds the best interests of the child and once removed or altered in ways that reduce its protective utility, cannot easily be re-written into the supreme law of the land.

There is an extensive array of domestic statutes granting citizenship on foundlings worldwide although the age criteria may differ and the presumption applied is time-bound in some cases. The acute plight of such children and severity of consequences of erroneously finding them having a nationality necessitate a greater burden of proof being shouldered by the state to investigate and produce evidence of the parents’ immigration background, child’s birth records, etc.

Upending this evidentiary burden would unfairly prolong the child’s predicament by depriving their fundamental rights as a minor of undetermined citizenship, an important raison d’etre behind the decision of the Federal Court in the 2021 landmark case of CCH ‘Cases concerning children born in Malaysia to a mother whose identity is unknown’.

In fact this inclusive position is in line with the obligation of the state to provide and care for foundlings in Islam. A report claims that Umar ibn Al-Khattab (may Allah be pleased with him) said to a man who had found a foundling: “It is in your custody, and we (i.e., the government) have a responsibility to take care of it.” Looking at the vast majority of Muslim states in the Middle East and North Africa (MENA), including the Kingdom of Saudi Arabia, foundlings or children whose origins are unclear are legally allowed to acquire nationality automatically.

The State may grant nationality to other categories of otherwise stateless children born on its territory through a protective mechanism known as remedial jus soli as what our law provides for currently.

While the potential removal of the safeguard provision to protect children against statelessness overtly produces children trapped in the limbo and magnifies their typologies, lack of policy/ legal prescriptions as to how to implement the safeguard equally leads to potential deliberate circumvention of the obligation to shield ‘at-risk’ and otherwise stateless children from statelessness.

The assumption that the affected child has a nationality that is passed down by the child’s parent or based on interpretations of another state’s citizenship provisions is fictional and unsafe, risking exclusion, unless it could be evidentially proven through the competent authority of the other state that the child has really acquired its nationality. Existing procedures must therefore factor in the fact that state authorities may not necessarily follow the letter of the law in recognizing an individual as its citizen.

On the other hand, although it may be possible to grant the parents the right to register the child as a national, or to reduce the requirements for acquiring the state of birth’s nationality in other ways for an otherwise stateless children, the requirements must be carefully examined, since they may be discriminatory and prolong the statelessness of the child if they do not facilitate gaining nationality or protect the child’s rights (to health, education, etc).

The Home Minister has revealed the highest number of applications for citizenship involving pre marital children as of March this year. Deprivation of citizenship should not be legally weaponised against such innocent children in the name of upholding our moral fabric and incorruptibility.

A lack of marital status can be caused by various reasons such as a lack of understanding of the significance of registering/ legitimising one’s marriage before a child was born, even though a customary or religious marriage, or a marriage in a foreign place, had taken place; the divorce of the first marriage was not finalised hence delaying the second marriage; and when the parents had never been married and did not understand the significance of marriage to a child’s citizenship. It would be extremely unfortunate if those responsible to amend our highest law fail to appreciate that there is no objective and reasonable ground in depriving extra marital children from acquiring citizenship, from either their birth or legal mother or father. Not allowing a father to transfer nationality to his child on equal terms with the child’s mother as is applicable under our current law is an unjustified differential treatment that certainly closes the gate to realising the child’s rights and best interests if the child ends up being stateless.

Malaysia, 66 years old and headed by Anwar Ibrahim, is in utter need to embrace and realise a new narrative about its vision for Malaysia. The Madani concept represented by the core values of sustainability, prosperity, innovation, respect, confidence and compassion must be translated into commitment and action without being compromised by a narrow nationalism-centric agenda.

Such an agenda could seep subtly into the domain of government policy, action and legislation for reform, aided by suppression of the desired core values in the execution process, in favour of the prevailing one-dimensional bureaucratic mindset, culture and attitude. State-sponsored discrimination and inequality have long been structural in our country and must not fly under the radar or be shadowed by purported ‘workarounds’ in this time and age. It needs our voices of conscience and good faith that underlie both our religious and rights-based values to transform our society together.

Co-authors of this article are as below;

  • Rodziana Mohamed Razali, Nik Salida Suhaila Nik Saleh and Dina Imam Supaat from Universiti Sains Islam Malaysia (USIM)
  • Tamara Joan Duraisinga and Sia Chin Chin from Taylor’s University
  • Rohaida Nordin and Andika Ab.Wahab from Universiti Kebangsaan Malaysia (UKM);

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