1. Discriminatory Nationality Laws
Children born in Malaysia out of wedlock (or in situations where the marriage is not recognised by the state, notably non-Islamic customary or religious marriages) to a Malaysian citizen father and a mother who is stateless or whose citizenship cannot be ascertained, are also at risk of statelessness due to discriminatory provision that disallow the transfer of nationality from a father outside of wedlock.
Malaysia’s gender discriminatory nationality laws place a number of children at risk of statelessness. Notably, children born outside of Malaysia to Malaysian citizen mothers and foreign fathers do not immediately gain citizenship of Malaysia. Malaysia’s most notable gender discriminatory provision denies Malaysian mothers equal rights to confer citizenship to men. While policy exists which provides some pathways to citizenship to children in this situation, DHRRA Malaysia has noted that in practice, the process continues to discriminate and remains largely discretionary.
In December 2020, Family Frontiers, a nationality rights advocacy group, and six affected Malaysian mothers challenged the constitutionality of this gender discriminatory provision in Suriani Kempe & Ors (2021). A new parliamentary committee was formed in December 2021 in order to amend the constitution to the benefit of Malaysian mothers. In September 2021, the High Court of Malaysia had ruled that the discriminatory In June 2023, new amendments to the Malaysian constitution were announced, posited to improve the situation of Malaysian mothers regarding conferring citizenship to their children. However, while the new amendment would grant equal rights to women in conferring citizenship, an analysis from the University of Melbourne Peter McMullin Centre on Statelessness has identified that the new amendments are likely to actually increase, not decrease, the number of people affected by statelessness. Perhaps most notably, the amendments would remove the provision (Schedule 2, Article 1(e)) which grants citizenship to children born in Malaysia who would otherwise be stateless, which will be especially detrimental to childhood and intergenerational statelessness in Malaysia.
While the legislation allows that any person who is not eligible for automatic citizenship may seek citizenship by registration, safeguarding children from statelessness, very few applicants are accepted as the process is highly discretionary. On the provision of Schedule 2, Article 1(e), the proposed amendments would also change the wording of granting citizenship to those who would otherwise be stateless from “by operation of law” to “by registration”, which would not only make the eligibility of citizenship, in this case, up to the discretion of the Home Minister but would also remove the potential for applicants to seek judicial review by the courts. This means that those who may have been able to seek redress through citizenship by registration would be unable to access such redress with the passing of the proposed amendments.
The proposed amendments would also remove the right to citizenship for children born to two stateless parents who are permanent residents of Malaysia, which could perpetuate intergenerational statelessness for groups that have resided in Malaysia since before independence. Further, foundling children would no longer have access to citizenship due to the assumption that foundlings are born to a permanent resident mother and the proposed amendments removing the eligibility for citizenship by children of permanent residents. The amendment would further perpetuate childhood statelessness carrying over into adulthood due to the administrative barriers it would place on stateless children applying for citizenship by registration upon becoming an adult. To add to this, if the amendments are passed, foreign women who have gained Malaysian citizenship by registration through marriage could be deprived of citizenship in the first two years of the marriage if the marriage dissolves. In sum, the new amendments would decrease the right to appeal citizenship decisions in courts and increase the government’s discretionary power over Malaysian citizenship. While the amendments have not yet been tabled, the Malaysian cabinet has stated that it “plans to table a bundle of constitutional amendments…”.
2. Lack of Legal Safeguards Against Childhood Statelessness
Abandoned children and foundlings will gain citizenship by “operation of the law”, meaning that the citizenship acquisition is automatic and must be upheld by the government, which if not upheld, can be appealed through the courts. Malaysian law does not explicitly provide for citizenship for stateless children yet does consider citizens to be those born in Malaysia who are “not born citizens of any country” which may provide some protection. Despite the inclusion of the provision which grants citizenship to any child who is born in the territory who does not gain citizenship of another country within one year of birth, the government tends not to implement them in practice due to the absence of administrative procedures for granting citizenship in this way. Often children who are entitled to citizenship under this provision must seek recourse through the courts.
3. Administrative Barriers
A large population of persons of Indian and Chinese heritage who were born in Malaysia prior to its independence and their descendants, while entitled to citizenship under the law of Malaysia did not gain citizenship due to rural isolation, limited knowledge of its importance, and administrative barriers due to lack of documentation. The mobile maritime Sama Baju (Bajau Laut) community also faces barriers to accessing citizenship due to a lack of documentation, which combined with their semi- nomadic lifestyle (which at times leads them to reside in neighbouring states) has led to the denial of their status as citizens.
Malaysia reported a 90-99% birth registration rate in 2018. Birth registration may be a prerequisite for citizenship, especially for children born outside of Malaysia as registration at a consulate is required within one year in order for the child to become a citizen.
