The issue that many Stateless children may be prejudiced if the recent government proposed amendments of citizenship laws goes through and becomes law. SUHAKAM and the Malaysian Bar, amongst others, have raised these concerns (see below for relevant news reports)
Yes, the government tabled a GOOD amendment that would remove gender discrimination - where before children born overseas to Malaysian fathers with foreign spouses could easily get citizenship - but NOT children of Malaysian mothers married to foreign spouses.
BUT then, the government LUMPED this with SEVERAL BAD amendment proposals that are unjust - especially to CHILDREN
The Resolution adopted at the recent Malaysian Bar AGM on 16/3/2024 is as follows.
Will PM Anwar and the PH-led coalition government LISTEN or will they simply push through with amendments that will bring about injustice?
Resolution Adopted at the 78th Annual General Meeting of the Malaysian Bar
(Held on 16 March 2024)
Resolution to Condemn the Government of Malaysia on the Proposed Regressive Amendments to Citizenship Laws
Whereas:
1. The Government of Malaysia had presented a set of regressive amendments to the Federal Constitution related to citizenship. 1 The proposed regressive amendments are as follows:
I. Section 19B, Part III of Second Schedule: To amend from citizenship by ‘operation of law’ to citizenship by ‘registration’.
II. Second Schedule Part II, Article 14(1)(b) Section 1(a): To delete the words ‘permanently resident’.
III. Second Schedule Part II, Article 14(1)(b), Section 1(e): To amend from citizenship by ‘operation of law’ to citizenship by ‘registration’.
IV. Second Schedule Part II, Article 14(1)(b), Section 2(3): To be repealed in its entirety.
V. Article 26(2) as it relates to Article 15(1): To replace the word ‘date of the marriage’ with ‘date of obtaining citizenship’.
VI. Articles 15(2), 15A, 19(1), 19(2), 23(1), and 23(3): Amend and reduce the age limit from ’21 years’ to ’18 years’ for the purpose of obtaining citizenship.
2. These regressive amendments were proposed in addition to the other prior or existing bureaucratic requirements that created and continues to create stateless persons in our country.
3. Law Reform (Marriage and Divorce) Act 1976 (Act 164) came into force in 1982. Based on Act 164, there is absolutely no requirement to submit identification documents to register a marriage.
4. However, there was an internal procedure/protocol within the Government from 1982 which required a list of identity documents in order to register a marriage. Specifically in the ‘Prosedur Kualiti MS ISO 9001: 2015’, there was a requirement by the National Registration Department to produce the original and copy of:
I. MyKad;
II. Visa / MyKAS / MyPR;
III. Passport;
when no such requirement is provided for in Act 164. These requirements made it impossible for stateless person to get married and hence created generations of stateless persons.
5. The unlawful denial of marriage certificates in this situation places children of such couples at risk of statelessness.
6. Further, in the Government’s internal circular entitled ‘Arahan Jabatan Pendaftaran Negara Bil. 6/2021’, the Government admitted that pursuant to Act 164, there was no requirement to submit identification documents to register a marriage.
7. Even after admitting this fact, the Government, under the guise of implementing a “new procedure” in the same circular, continued to impose the requirement for identity documents which accepted Birth Certificates or Adoption Certificates however specifically carved out children born out of wedlock.
8. By imposing these unlawful requirements, the JPN has been systematically creating generations of stateless persons in Malaysia since 1982. This is just one of the many other internal circulars that caused difficulties for those who were born in Malaysia and/or has a lawful Malaysia parent.
Recognising that:
9. Any amendments to citizenship provisions in the Federal Constitution must prevent, not manufacture statelessness
10. As highlighted by civil societies,3 the Government of Malaysia’s proposed amendments to the Federal Constitution are regressive in nature as:
I. Amending Section 19B of the Second Schedule, Part III of the Federal Constitution to alter citizenship by ‘operation of law’ to citizenship by ‘registration’, foundlings and abandoned children are deprived of automatic citizenship.
The term ‘operation of law’ affords protection to foundlings as this provision grants them the benefit of the doubt in cases where the date and place of their birth, as well as the identity of their biological parents, are unknown and cannot be substantiated.
The suggested amendment seeks to place foundlings under the discretionary authority of the Home Minister for citizenship determination, unjustly imposing the onus of proving parentage on the child.
II. Amending Section 1(a) of the Second Schedule, Part II of the Federal Constitution to delete the words ‘permanently resident’, children born to Malaysian Permanent Residents (PR) who are stateless will no longer have access to citizenship by ‘operation of law’.
In effect, vulnerable populations, including current stateless communities like the childhood statelessness categories, Orang Asli and Orang Asal, could also face the peril of being ensnared in a cycle of statelessness across generations.
III. Amending Article 26(2) of the Federal Constitution to replace ‘date of marriage’ with ‘date of obtaining citizenship’ poses a risk to citizenship deprivation of foreign wives because if a Malaysian man’s marriage dissolves within two years of his wife being granted Malaysian citizenship, the foreign spouse’s citizenship will be revoked.
IV. Amending Article 15(A) of the Federal Constitution to reduce the age limit from ‘21 years’ to ‘18 years’ for citizenship registration effectively shortens the timeframe for applications when bureaucratic delays and appeals, which could take years to process, subsist as well as introducing an illegitimate registration requirement that never existed previously
11. Despite immense pushback from the various stakeholders at multiple platforms, the Government of Malaysia was determined in their course of action and proceeded to submit the regressive proposals to the Conference of Rulers.
Therefore, the Malaysian Bar resolves that:
A. The Malaysian Bar condemns the Government of Malaysia in the strongest possible terms on the regressive amendments proposed to Malaysian citizenship laws, which would constitute an alarming erosion of rights and pose an imminent threat to an already vulnerable segment of our society – stateless persons.
B. The Malaysian Bar calls upon the Government of Malaysia to:
I. proceed with the amendment to enable Malaysian mothers to confer automatic citizenship to their overseas-born children, but
II. abandon the proposed regressive amendments to Malaysian citizenship laws; or
III. defer the proposed regressive amendments to enable further study on the full implications of the proposed amendments and enable meaningful participation of the relevant stakeholders in the drafting process.
C. The Malaysian Bar demands the Government of Malaysia to adopt and implement the proposals contained in SUHAKAM’s 2023 report entitled ‘Human Rights and Statelessness in Peninsular Malaysia’, namely:
I. Abolishing the requirement for a legal citizenship status for access to education.
II. Prioritising citizenship for stateless individuals who are able to establish that they were born in Malaysia.
III. Allowing citizenship applicants to receive permanent residency (Red Identification Cards) while waiting for their citizenship approval.
IV. Providing temporary legal documents to enable employment for stateless persons waiting for their applications to be approved.
V. The application process for citizenship under Articles 15A and 19 of the Federal Constitution should
a) taking into account the interest of the applicant, have shorter waiting period and a clear time frame for the application process effectively implemented; and
b) rejected applicants should be provided with the reasons for the rejection of their application.
VI. There should be increased transparency surrounding the path to citizenship especially with regard to the practices of the National Registration Department.
D. The Malaysian Bar demands the Government of Malaysia to:
I. establish an independent Ombudsperson Office to investigate into any children who are stateless and ensure that they do not remain stateless, fast-track citizenship applications to not more than 9 months, increase transparency surrounding the path to citizenship, include general timelines for the process, circulate better and more precise information surrounding the path to citizenship and for the overall improvement of the citizenship application process; or
II. to carry out the abovementioned functions, appoint a Chief Commissioner for Stateless Persons within SUHAKAM through the necessary amendments to the Human Rights Commission of Malaysia Act 1999 as was done for the appointment of the Chief Children Commissioner and two Children Commissioners to deal with human rights matters relating to children.
E. The Bar Council should consider and if thought fit institute or participate in all necessary court proceedings with a view to eliminating Malaysia’s shameful legacy of Stateless Persons.
* This resolution has many footnotes, and some attachments - thus it is best to view the full Resolution adopted at the Malaysian Bar Website
Explainer: A breakdown of the proposed five citizenship law changes deemed ‘regressive’
KUALA LUMPUR, Nov 8 — Constitutional amendments in Malaysia have always been the subject of debate both in public and parliamentary discourse, even more so when it involves rights and privileges such as citizenship.
The federal government’s latest move to amend Malaysia’s citizenship laws follows a prolonged gender equality advocacy to allow Malaysian women the right to confer citizenship to their overseas-born children. A right already granted to Malaysian fathers.
For decades, Malaysia’s existing citizenship laws were seen as unfair and discriminatory against women, as the Federal Constitution only granted automatic Malaysian citizenship to children born overseas to Malaysian men with foreign wives, but not Malaysian women with foreign husbands.
Notwithstanding the progressive change to be introduced, the federal government also intends to introduce several “regressive” amendments — five to be exact — which those opposing have argued would “remove protections against becoming stateless”.
Based on existing court cases brought by stateless persons, they are deprived of access to education, healthcare, employment and business, housing and social security, many of which ordinary citizens take for granted.
Some examples include the ineligibility to open bank accounts, leave and re-enter the country, register for a mobile line, legally marry and obtain a driver’s licence as having a MyKad is the prerequisite to many basic services and facilities.
So what are the proposed “regressive” changes to Malaysia’s citizenship laws?
Under the Federal Constitution, acquisition of citizenship can be obtained by way of verification of citizenship status by Operation of Law (Article 14); by registration (Article 15, 15A and 16) and by naturalisation (Article 19).
Here is a simple breakdown of each amendment and their respective revisions as entailed by civil society stakeholders in their engagements with the Home Ministry.
1. Section 19B, Part III of Second Schedule
Amendment: To amend from citizenship by “operation of law” to citizenship by “registration”.
Effect: Foundlings and abandoned children will no longer be entitled to automatic citizenship.
In the present, foundlings are currently protected by the Federal Constitution as provided under the aforementioned evidentiary provision which gives them the benefit of doubt when the date and place of their birth; and the status of their biological parents are unknown and thus unable to be proven.
The proposed amendment would see foundlings subject to citizenship vested in the Home Minister’s discretionary power and unreasonably place the burden of proof on the child as to his/her parentage.
2. Section 1(a), Part II of Second Schedule
Amendment: To delete the words “permanently resident”.
Effect: Children born to Malaysian Permanent Residents (PR) will no longer have access to automatic citizenship
This means that children born to Malaysian PRs who are stateless will no longer have access to citizenship by “operation of law”.
Marginalised groups such as existing stateless communities of Orang Asli and Orang Asal would also risk entrapment into intergenerational statelessness.
3. Section 1(e), Part II of Second Schedule
Amendment: To amend citizenship by “operation of law” to citizenship by “registration”; repeal Section 2(3).
Effect: Vulnerable and affected individuals — such as children born out of wedlock, adopted and abandoned stateless children; and indigenous communities — will no longer be constitutionally protected against statelessness.
At present, the aforementioned individuals are accorded a pathway to automatic citizenship by “operation of law” but the proposed amendments would see them no longer having said access even though they are born here.
4. Article 26(2)
Amendment: To replace the words “date of marriage” with “date of obtaining citizenship”.
Effect: Citizenship of foreign spouse of a Malaysian man will be revoked if their marriage is dissolved less than two years after the wives are granted Malaysian citizenship.
This amendment will render foreign wives at risk of citizenship deprivation and statelessness as Malaysia does not allow dual citizenship which may result in entrapping these women in a violent or abusing marriage.
5. Article 15(A)
Amendment: Amend and reduce the age limit from “21 years” to “18 years” for the purpose of citizenship registration.
Effect: Stateless child applicants will now have reduced years to apply for citizenship and potentially close out the pathway for stateless children to gain nationality amidst bureaucratic delays and appeals which could take years to process.
By convention, most stateless children apply for citizenship through Article 15(A) as only those below the age of 21 can go through this route.
With tabling for the proposed constitutional amendment expected to take place in the current Dewan Rakyat sitting, a two-thirds parliamentary majority is required for the Bill to be approved as it is a constitutional amendment.
Home Minister Datuk Seri Saifuddin Nasution Ismail had recently sought to justify the proposed “regressive” changes, saying that there were still legal avenues for stateless children to pursue the matter.
In response, civil society groups have called on the federal government to decouple the proposed “one size fits all” package of amendments as it will exacerbate the problem and create a new class of stateless persons in Malaysia.
Amid public outcry, Prime Minister Datuk Seri Anwar Ibrahim recently said the
proposed amendments had been presented to the Conference Of Rulers and
called for any decision by the rulers to be respected. - Malay Mail, 8/11/2023
The Malaysian Bar Urges the Government to Re-evaluate and Halt Recent Proposed Amendments to Citizenship Laws Deemed Regressive
11 Dec 2023 3:04 pm
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Every
year on 10 December, the Malaysian Bar commemorates Human Rights Day to
raise awareness on the universality and indivisibility of human rights,
with a vision of empowering all of us to fight for our rights and to
take action.
This year, the Malaysian Bar directs its focus particularly towards a long-simmering issue in need of immediate attention by the Government — citizenship and statelessness in Malaysia.
The Malaysian Bar commends the Government’s decision on 18 February 2023 in approving constitutional amendments to the Federal Constitution (“FC”) in relation to citizenship, in particular Article 14(1)(b) and sections 1(b) and 1(c) of the Second Schedule, Part II of the FC, to address the current discriminatory laws and grant automatic citizenship to children born overseas to Malaysian mothers and non-Malaysian fathers.
However, the Government had expressed that “other amendments related to citizenship, especially Part III, will be studied in greater detail by a committee established under the home ministry and will be tabled before the Cabinet after these proposed amendments have been finalised, taking into consideration feedback from engagements with all interested parties”.1
The Malaysian Bar notes that the Ministry of Home Affairs engaged with civil society organisations on 23 June 2023 to seek views on the proposed amendments to Part III of the FC on citizenship matters. Some of the key proposed amendments (“proposed amendments to the FC”) include:
(1) Entirely removing sections 1(e) and
2(3) of the Second Schedule, Part II of the FC, which fundamentally
protect persons from becoming stateless;
(2) Removing the right of foundlings, including abandoned children, to
citizenship by operation of law under section 19B of the Second
Schedule, Part III of the FC;
(3) Deleting the words “permanently resident” in section 1(a) of the Second Schedule, Part II of the FC;
(4) Including provisions consolidating and granting more discretion to
the Government to reject or postpone citizenship applications;
(5) Repealing Articles 15(3) and 16A of the FC for consistency;
(6) Lowering the age limit from 21 to 18 to obtain citizenship in particular Articles 15, 15A, 19 and 23(3) of the FC; and
(7) Replacing the phrase “date of marriage” with “date of obtaining
citizenship” on Article 15(1) read with Article 26(2) of the FC.
The Malaysian Bar is deeply perturbed about the above-listed seven proposed amendments to the FC, which will have far-reaching and detrimental effects to our society. It will affect the lives of vulnerable persons and significantly exacerbate the long-standing issue of statelessness in Malaysia. These proposed amendments to the FC are devoid of justifications and unsupported by proper data, and would remove the existing constitutional protection for some categories of stateless children, leaving them without any constitutional safeguards. For instance, removing section 1(e) in its entirety will only exacerbate the current situation and add a new category of stateless persons to the existing long list of categories.
The negative impact — politically, economically and socially — on the lives of stateless persons cannot be overstated. They would be denied access to, among other things, fundamental rights including formal education, healthcare, formal employment, and access to justice. Due to all these disadvantages, they become vulnerable and earmarked for abuse, mistreatment, and subsequently, become victims of social ills.
The Malaysian Bar further notes that despite immense pushback from the various stakeholders at multiple platforms, the Unity Government appears to assert that their course of action is limited and is dependent on the decision of the Conference of Rulers, as the proposed amendments to the FC have been presented to them for consent.2
The Malaysian Bar urges the Government to re-evaluate and halt the proposed amendments to the FC as it is a step backwards and is perilous to the already vulnerable segment of our society. A transparent, thorough, and genuine consultation process with the relevant stakeholders, as well as undertaking further research to fully understand the implications and impact of proposed amendments to the FC, would be the right course of next action. Instead of implementing the proposed amendments, the Unity Government must ameliorate the current existing citizenship framework, preserving the constitutional safeguards within the FC and the recent court decisions,3 giving life to these existing constitutional safeguards. Surely these existing constitutional safeguards are in place since Merdeka and have been conferred because the FC drafters thought that it would not be detrimental to the interests of the country to do so.4
The Malaysian Bar takes the position that the original provisions of the FC, which provided the Constitution with its basic foundation and structure, took into account the dignity and freedom of individuals,5 and cannot be destroyed by any form of amendment. The powers to amend the FC should not abrogate, emasculate, or damage any of the fundamental rights or the essential elements in the basic structure of the FC. The Government should therefore prioritise the welfare of the country, both citizen and non-citizen, including those currently stateless, but who have been living as Malaysians, considering Malaysia their only home.
The Government should emphasise the amendments to grant automatic citizenship to children born overseas to Malaysian mothers and non-Malaysian fathers, and put aside its plan to combine and package the seven listed proposed amendments to the FC, which would only serve to complicate the issue.
The Malaysian Bar is committed to supporting efforts to reduce the gap in this matter and pursuing other necessary legal reforms, and will continue to engage and participate in stakeholder engagements to provide our perspective and point of view, and assist in reviewing and giving feedback on the current state of laws.
Karen Cheah Yee Lynn
President
Malaysian Bar
11 December 2023
1 “Cabinet gives green light to amendments on equal citizenship”, Malaysia Now, 18 February 2023.
2 “Amid calls to refine proposed citizenship amendments, PM Anwar says govt must honour Rulers’ position, will explain to backbenchers”, Malay Mail, 6 November 2023.
3 For example, the Federal Court case of CCH & Anor v Pendaftar Besar bagi Kelahiran dan Kematian, Malaysia [2022] 1 MLJ 71 recognising that section 19B of the Second Schedule, Part III of the FC allows foundlings to be presumed to be born to Malaysian parents at the time of their birth if the identity of their biological parents cannot be identified.
4 Kesavananda Bharati & Ors v State of Kerala & Anr LNIND 1972 SC 531, Supreme Court of India.
5 Ibid. - Malaysian Bar Website
Suhakam: Proposed amendments on citizenship are regressive, abhorrent
KUALA LUMPUR: The Human Rights Commission (Suhakam) has called for another study to be conducted so citizenship issues can be tackled holistically.
In a memorandum handed to members of parliament, Suhakam today said the proposed amendments to the Constitution on citizenship must be drafted from a bilateral perspective, preserving Malaysia's sovereignty while also considering the outcomes to reduce stateless children.
Suhakam vice-chairman Ragunath Kesavan, repeating the body's rejection of the amendments, said the proposed provisions were regressive, abhorrent and would be a setback for human rights in Malaysia.
Ragunath was referring to the amendment of Section 19B of Part III of the Second Schedule of the constitution, which he said could remove safeguards against stateless children.
"This is one of the most regressive proposed amendments to the constitution in the last 40 to 50 years.
"We have no problems with the minister or government, but moving from granting citizenship by operation of law, as stated in the constitution, to leaving it to the discretion of the home minister, is not something that we can live with," he said at a news conference.
Present were Children's Commissioner Dr Farah Nini Dusuki and Suhakam commissioners Professor Datuk Noor Aziah Mohd Awal, Datuk Mariati Robert, Datuk Hasnal Merican, and Tengku Mohamed Fauzi Hamid.
Ragunath said the main obstacles in the law were bureaucracy and the unresponsive nature of the National Registration Department (NRD) to applicants.
"The minister has talked about his efforts and what he has done, approving more 10,000 citizenship applications, and we are very happy with that.
"But the concern we have is that there is a serious trust deficit in the NRD. Some applications have gone five to eight years without any response from the NRD.
"And for children, that is a completely unacceptable period of time, in terms of their education, development and growth."
He said children not granted citizenship rights would become stateless, and when they marry, their children too would become stateless.
"They will face trouble with employment, health and education
"They could go into crime, they cannot open a bank account and have no access to hospitals and education. So what do you expect them to do?
"They will remain in Malaysia and cannot go anywhere.
"To turn a blind eye and say that it is the discretion of the minister will not solve the problem, and does not mean there will be no stateless children in Malaysia."
In the memorandum, Suhakam had stated its opposition to the amendments to Section 19B and Section 1(e), and the repeal of Section 2(3).
It said the amendments and repeal would lead only to the elimination of rights rather than the protection of the citizenship rights of the affected children, and continue the cycle of statelessness for them.
Suhakam said the Home Ministry's failure to present evidence and data regarding the threat to national security, if citizenship was granted to these children, had denied an individual's citizenship rights, which could be deemed unconstitutional.
Last Friday, Home Ministser Datuk Seri Saifuddin Nasution Ismail announced the cabinet's green light of the proposed amendments to the constitution over citizenship to be tabled in the Dewan Rakyat.
On Monday, he said the amendment was aimed at allowing a degree of control to be established and to avoid granting citizenship to those who were not eligible. - New Straits Times, 13/3/2024
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