Frustrated and distressed at the uncertainty of their children’s citizenship status, six Malaysian mothers are seeking to challenge provisions in the Malaysian constitution that, they say, prevent them from passing on their nationality to their offspring because they are women.
Under our law, a Malaysian mother with a foreign spouse cannot automatically pass on her citizenship to her children born outside Malaysia. She has to apply for the child’s citizenship, and reapply if the application is unsuccessful.
A Malaysian man, however, can confer his citizenship automatically even if the child is born abroad to a foreign spouse – he just has to register the birth and it takes about three days to sort out the formalities.
“It is 2021, why are women still facing discrimination?” asks Choong Wai Li whose son is seven years old and has not been granted Malaysian citizenship yet.
Choong is one of the six mothers, along with NGO Family Frontiers (Association of Family Support and Welfare Selangor and Kuala Lumpur), who has filed a suit to allow Malaysian women the automatic right to confer nationality to their children born abroad.
The decision to go to court comes after years of trying to lobby the government to change its citizenship laws. Currently, Malaysia is one of 25 countries in the world that denies women the right to confer nationality on their children on an equal basis as men. Malaysia is also one of 50 countries in the world that denies women the equal right to confer nationality on their spouses.
“I have nothing to lose and everything to gain (by this suit), ” says Choong, a former national Squash player, who has submitted two applications for her son’s citizenship.
The first was made in 2014 before he turned one. After two years of waiting, going to Putrajaya numerous times to check on the status of the application, she found out it was rejected, with no reason given.
She was told to “try again”.
But without knowing what went wrong with the first application, Choong went through the same process again in 2018, hoping for a positive outcome. When she last checked earlier this year, she was told the application was still being processed.
Choong’s story is unfortunately more common than not for Malaysian mothers like her, who marry foreigners and have their children abroad. For many of these women, the ambiguity of the process is extremely frustrating.
What’s the criteria, please?
In Rekha Sen’s case, only one of her three children has been successful in getting Malaysian citizenship.
“I delivered all three of my children in Bangkok but only my firstborn was granted Malaysian citizenship. I submitted an application for him in early 2010 shortly after his birth. I had originally intended to deliver in Malaysia as I was aware of the difficulty involved in acquiring citizenship for him if I gave birth to him abroad. However, I faced a medical complication with the pregnancy and was advised by my doctor not to fly home.
“After his birth, I returned home with him and got the ball rolling for his citizenship application. This involved numerous trips to Putrajaya and multiple letters to the Home Minister. After almost three years, I was called for an interview at Putrajaya.
“Among the questions I was asked were how I’ve contributed to the country to make me feel I deserve citizenship for my child. I was also asked how I intend to show my commitment to Malaysia if citizenship is granted, ” she shares, adding that her son, Ari, received citizenship soon after.
But things have been more difficult for her two younger children, Leo who is 10 and Lara, six. “The entire process is unclear. There is no indication of what criteria is required for a successful application versus a rejection as I applied in the same way for all three of my children.
“With each new government, the process changes or gets further delayed so we are really at the mercy of bureaucracy and politics.
“The onus also lies on us as applicants to consistently follow up with the government for a reply. Over the span of 10 years, both my father and I have made countless enquiries in person and over the phone to Putrajaya and each time we were told to ‘just wait’.
“After all the time, effort and money spent going back and forth, I feel I am owed, at the very least, an explanation for the rejection of my younger two children. To wait five years, only to be told ‘ditolak’ is just unacceptable, ” she shares.
Fed up, Rekha decided it was time to lobby for change.
“Gender inequality has no place in 2021. I started to ask myself if I wanted my daughter to grow up in a country that views her as a second-class citizen.
“Even if I eventually succeeded in acquiring her citizenship, without a change in the law, she might one day face the same issues.
“I thought about my friends’ daughters and all the girls and women in Malaysia, present and future, who might find themselves in this predicament and I felt it was time to do something about it.
“I pay my taxes just like my male counterparts, so why am I not entitled to the same rights?” she argues.
When mothers ask why their child’s citizenship applications have been rejected, they get answers that are inconsistent, adds Suri Kempe, president of Family Frontiers, which supports and advocates for gender-equal citizenship rights and the rights of foreign spouses in Malaysia.
“Some officers tell them that the child should ‘just follow the citizenship of their father’. Some receive xenophobic responses, questioning why they chose to marry a foreigner and not a Malaysian.
“Some officers cite a backlog in applications and tell them to just be patient and wait. The current approval rate for applications is approximately 3%, ” says Suri.
Family Frontiers, along with six affected mothers, is seeking a declaration from the Court that certain articles of the Federal Constitution around citizenship (articles 14(1)(b) and 14(1)(c)) be read harmoniously with Article 8 of the Federal Constitution, which prohibits non-discrimination on the basis of gender.
“What that means is that the law would be interpreted and read in a non-discriminatory way, thereby enabling Malaysian women – regardless of who they marry, and where they deliver their children – to pass on citizenship to their children by operation of law. This means automatically, and without having to go through an application process, just like Malaysian men.
“Why are children of Malaysian women painted as threats to national security, ” questions Suri.
Though the government
recently attempted to strike out their case, claiming that it was “frivolous”, among other things, High Court Judge, Datuk Akhtar Tahir, dismissed this attempt, says Suri.
“He pointed out that this was important, and that the difficulties faced by Malaysian women and their families were hardly frivolous. The honourable judge had noted that there was apparent discrimination, and had requested that the government submit justifications for why it continued to discriminate against Malaysian women.
“The government has now filed an appeal against the High Court’s decision, and we believe this is a tactic to continue delaying the case, because in this day and age, there is absolutely no justifiable reason for this discrimination, ” says Suri.
Chief strategist officer at the Malaysian Centre for Constitutionalism and Human Rights (MCCHR), Firdaus Husni reckons that the mothers stand a good chance with their suit.
“I think the challenge has a good chance to succeed, although a court outcome can never be guaranteed. The court decision on May 6th rejecting the government’s argument that the lawsuit is frivolous shows that the Malaysian mothers do have a case.
“The challenge is to establish that the children have a right to a nationality and any restrictions to that right must be applied narrowly.
“The government may use dual citizenship and national security as justifications, judging from the previous stance it took.
“The Malaysian mothers must then show that these are not proper justifications and the law is therefore discriminatory, ” says Firdaus.
The Federal Constitution, she says, is a living document and while the constitutional provision might have captured the political and social consciousness of its peoples 60 years ago when it was drawn up, it must also reflect the current demands and needs of the people.
“It should also be aspirational and transformative of the kind of country we want our generations to live in. These are what makes the Federal Constitution a living document, ” she says.
As non-citizens, the children of these Malaysian women won’t have access to public education or healthcare.
Until they go to school, they are in the country on a social pass that has to be renewed every six months and once they are school-going, they have to apply for a student visa. In school, even if they excel in sports or
academics, they can’t represent the state or the country because they aren’t citizens even though they live in Malaysia and are half-
“Without equal access to public education and healthcare for their non-citizen children, it becomes difficult for Malaysian mothers to navigate through day-to-day routines, ” explains Suri.
“The higher cost of healthcare is particularly challenging for children with disabilities and those who require long-term medical care. Some children need long-term medical treatment but due to their status as foreigners, they cannot access government facilities.
“This also ties into the issue of ‘ageing out’ as after they reach 21, these children are no longer eligible for citizenship.
“Once that happens, these children, who would have lived here the majority of their lives and called this country their home, will continue to be treated as foreign nationals, ” she explains.
Myra Elyssa, also a co-plaintiff, says she can’t help feeling anxious because of the uncertainty about her daughter’s citizenship.
“There is so much playing on my mind. I sometimes feel scared when I think about the future – will I get separated from my child just because she wasn’t born in Malaysia?
“I am not fighting against the government. I love our country
so much but I want them to
know what we, Malaysian women who are married to foreign spouses and gave birth outside the country, are going through. Malaysia is tanah airku and I would like it to be the same for all my children.
“The decision to bring this to court was not an easy one for any of us, as we are not sure what could happen to us in the future or whether it will have an impact on our family. But it is something we have to do and we are thankful for the support of Family Frontiers, ” says Myra.