Eight-year-old Botiza is a non-citizen child living in Sabah. Even though her mother is Malaysian, because her father is a foreigner and she was born overseas – in Abu Dhabi, UAE – Botiza hasn’t able to get a Malaysian citizenship.
“Every year, my mother has to go through a longer process to enroll me in school, and this process is repeated yearly, even though it’s for the same school. And although I’m the child of a Malaysian, I’m not eligible to get textbook loans from school,” she said in a video during the Child Rights Coalition Malaysia’s launch of 12 position papers, website and media guide on Human Rights Day last December.
“And, this is a very difficult one for me – I don’t get selected for any school competitions, especially those organised by the State Education Department.
“I’m also not eligible for the Malaysian national immunisation programme because I don’t have a MyKid, and the Ministry of Health requires a payment of RM300 for me to get vaccinated. If I go for treatment at any government health facilities – whether hospitals or clinics – I get charged a higher fee meant for foreigners, even though I’m the child of a Malaysian,” she says.
Like Botiza, there are many children in Malaysia who face a similar situation. Even though their mothers are Malaysian, they aren’t able to get Malaysian citizenship because they’re born overseas, and their father is a foreigner.
On Sept 9, 2021, the High Court of Malaysia made a landmark decision that Malaysian women will be able to pass on citizenship rights to their children who are born overseas, just as Malaysian men can. This happened after six Malaysian women with overseas born children, together with Family Frontiers Malaysia, filed a lawsuit through an originating summons on Dec 18, 2020, in the Kuala Lumpur High Court against the Malaysian government.
But the historic victory for these Malaysian mothers was short-lived when the Malaysian government appealed against the court decision.
“The government has lost twice in their appeal to strike out (this landmark decision) in the KL High Court as well as the Court of Appeals, to maintain the status quo. They are still appealing right now on the case and the appeal will be heard by the Court of Appeal on March 23,” says Family Frontiers Malaysia lead coordinator Bina Ramanand.
Until then, she says that affected families and especially children like Botiza, continue to live in limbo not knowing if they will get their Malaysian citizenship.
Children born overseas
Because Botiza and other children like her don’t have a MyKid, there are many more issues that they will face as they grow older.
They aren’t able to get a MyKad after the age of 12, without which, they won’t be able to easily obtain a driver’s licence, open a bank account, enroll in a local university or even get a job in Malaysia, says Bina.
“There are over 11,000 citizenship applications for overseas-born children of Malaysian women applying under Article 15(2) and very few of them get approved. When the marriage doesn’t work out, these women often return to Malaysia with their children and they encounter many difficulties when trying to get their visas: they’re made to do visa runs with young children in tow and often given the runaround. What is worse, many of them are single mothers and they can’t get access to education and healthcare for their children,” says Bina.
Previously, Malaysian women (with foreign spouses) had to apply for Malaysian citizenship for their overseas born children, under Article 15(2) of the Federal Constitution which states that the Malaysian government may register anyone aged below 21 as a Malaysian citizen if the person has at least one parent who is Malaysian and if this person’s parent or guardian has applied for the citizenship registration. However, the process takes years of waiting and trying, with no guarantee of success. The six mothers had tried to apply for Malaysian citizenship for their children under Article 15(2), but their applications were rejected with no reasons given, and many of them had been trying for almost 10 years.
“It is our recommendation that these children of Malaysian women be given the right to Malaysian citizenship, and that the government’s appeal against it will be withdrawn and the judgement of the Kuala Lumpur High Court will prevail,” says Bina.
The Federal Constitution regarding the right to citizenship needs to be amended to include these children and protect them. PR and visa applications while they’re awaiting their citizenship needs to be speeded up – all these issues need to be addressed at policy level, she says.
Outside a legally-recognised marriage
Similarly, children born to Malaysian fathers with a foreign spouse outside a legally-recognised marriage face difficulties getting their Malaysian citizenship. There are over 50,000 childhood citizenship applications under Article 15A and the pace at which these applications are processed is so slow that the children will need to have lifespans of hundreds of years in order to get their citizenship,” says Bina.
There many other categories of children who face citizenship obstacles. They include foundlings and children brought up in welfare homes without identifiable biological parents, adopted children with unidentifiable biological parents, refugee children who have been deprived of a normal childhood and compelled to flee war-torn countries, and stateless children.
There are many causes of statelessness, including parents not registering marriages at child’s birth, abandoned children or foundlings, adopted children from unknown biological parents, refugees and undocumented migrants’ children, reveals Bina.
“These are all children who are starting out their life, being termed as non-citizens with very little access to education and healthcare. And for many, their parents are perhaps on the borderlines of poverty so even more than other children, they need safeguards and a safety net,” she says.
“We talk about leaving no one behind but these children in Malaysia are being left behind. And the nightmare becomes worse when they reach the legal age of 21,” she adds.
This situation has been made worse by the pandemic.
“Borders were closed and there were mothers who needed to come back to give birth, but couldn’t. Many of them had to make the difficult choice of giving birth overseas leading to the likelihood of an increase in children without citizenship.”
“There is also the situation of men with foreign spouses who couldn’t register their marriages because registration departments were closed during the pandemic,” says Bina.
Generations of statelessness
“There are also difficulties of birth registrations in rural areas. During a study trip prior to the pandemic, we discovered that there are generations of statelessness in certain rural areas. These children are born in Malaysia but have no citizenship,” says Bina.
There were 290, 437 children without birth registration (2016), 15,394 children of Malaysian men outside legally-recognised marriages have been denied citizenship (2012-2017), and there are 45,870 child refugees and asylum seekers registered with UNHCR in Malaysia and only 30% are in school (Oct 2021).
“There were 14,477 citizenship applications for a one-year period between 2019-2020. Out of these, 45 applications (0.3%) were approved and 691 were rejected with no reasons given. They were told ‘it depends on the Home Minister’, but there is also no continuity in the process, because when the minister changes, the processes aren’t continued and the children are left in limbo.
“In 2010, the then minister Datuk Hishammuddin Hussein put in place an administrative process enabling Malaysian women to register their children born overseas. There were a few approvals for citizenship from these registrations until 2014, but since then, there have been no positive approvals for registrations at the high commissions,” she cites as an example.
Currently, there are 13,741 child citizenship applications still in process.
“What then are the options for these children? And what are the reasons these applications are scrutinised so strictly and approvals so difficult to obtain?” asks Bina rhetorically.
“On children born to Malaysian mothers, we’ve been told it’s ‘dual citizenship’. But there’s also that same issue with children born to Malaysian fathers, so it’s not a valid reason. Subsequently, we’ve been told that it’s a ‘national security threat’. But their non-Malaysian fathers have no access to citizenship even if their wife is Malaysian, or even if their children were to become Malaysian. And, they can only apply for citizenship by naturalisation just like any other foreign man. So there isn’t any real threat because the approvals are only for children and not adults,” highlights Bina.
Putting children first
Human Rights Commission of Malaysia (Suhakam) commissioner of child affairs Prof Datuk Noor Aziah Mohd Awal reiterates the importance of resolving the issue of stateless children.
“When the child of a Malaysian doesn’t have a MyKid, they’re denied so many other rights – education, healthcare, protection, even the right to go to university and get a job,” she says. “They also can’t get a driver’s licence, have a bank account, buy their own property, nor get married legally because they have no document (MyKad) to register with."
“Hence, the government needs to do something about this because it’s interrelated to every other aspect of the child’s life and future,” she says.
“Furthermore, now that the government is campaigning for ‘Keluarga Malaysia’, it needs to look not just into the overseas-born children but also the foreign spouses of the Malaysian women, since they are also part of the keluarga once they have married into the keluarga,” she adds.
I also hope to eventually see a government department or agency for children to be set up that deals only with children’s issues, she concludes.