Comment: Resolving statelessness in Malaysia

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  • Sunday, 15 Sep 2019

Break the cycle: We need clear and progressive guidelines so that genuine stateless Malaysians are not deprived of their citizenship. — Filepic

THERE are numerous misconceptions about statelessness and those who are claiming citizenship in Malaysia. The government’s mischaracterisation of statelessness and lack of urgency have allowed these misconceptions to persist, obscuring and complicating what are essentially solvable issues.

The truth is that many people who are stateless in Malaysia are not foreigners, refugees or “illegal” migrants. They were mostly born and have been living all their lives in Malaysia and thus possess the genuine and effective link with the country that entitles them to claim citizenship. To put it another way, they are Malaysians but for the documents and other evidence required to prove their citizenship.

Reliable statistics on the number of stateless people are hard to come by given the nature of the problem. As stateless persons have limited access to legal employment, education, healthcare, or other public services in Malaysia – and many have irregular or no documentation – it is challenging to estimate the scale of the problem.

Most research suggests that the numbers are in the hundreds of thousands, perhaps over 50,000 in Sabah alone. Many of these people do not have an affiliation with any other nation, but are forced to live on the margins of society and are treated as foreigners here in their own country.

This is a concern for all of us, as a nation cannot flourish socially, politically and economically when large swathes of its population are excluded from mainstream society.

There are several different causes of statelessness experienced in our country. For example, the descendants of those who came to Malaysia from India during the colonial era to work on plantations. Although they were entitled to citizenship after Malaysia gained independence, many have faced difficulties stemming from lack of identification documents.

At the age of 70, Letchumy Suppiah was finally recognised as a citizen along with her daughters, who had all been unable to register their marriages, thereby perpetuating the cycle of statelessness for their own children.

While citizenship was eventually granted to all three generations in an out of court settlement by the National Registration Department (NRD), this came only after decades of rejections and legal action.

During this case, it was instructive to hear the judge’s exasperation at the NRD’s unrealistic demand for the stateless individuals to prove their citizenship, asking whether the NRD expected the applicants to dig up the graves of their forefathers to prove their links to Malaysia.

This story will be familiar to many stateless individuals who find themselves being asked to prove that they are Malaysian with documents that they do not possess, and with little assistance available to acquire those documents. With incomplete paperwork, their citizenship applications will inevitably be rejected, and so they are left in limbo with a shrug, neither belonging to Malaysia nor any other country.

A large number of the stateless population in Malaysia are innocent children who were born here but are denied citizenship due to a conservative interpretation of the law. The Federal Constitution does contain an apparent safety net to prevent statelessness for children who are born in Malaysia but are not nationals of any other country.

But numerous cases over the years have shown that many children are still discriminated against by the system which places an impossibly high burden of proof upon them – to prove that they do not belong to any other country in the world before they can claim Malaysian citizenship.

For example, a 19-year-old boy born in Malaysia and adopted by a local family should have been entitled to citizenship.

However, as there was no information about his biological parents on his birth certificate, the Court of Appeal said that he had been unable to prove that he was not a citizen of any other country, and therefore would fall outside the constitutional safety net. This was a tragic decision for the youth who was penalised for being unable to prove his own statelessness.

Before the case was to be heard by the Federal Court, citizenship was granted at the eleventh hour. This put an end to his individual struggle, but such ad hoc decision making does nothing to reform practices or address the systemic problems which have perpetuated statelessness in the country.

We have seen many more cases where the interpretation of the law and the bureaucracy of the NRD have devastating consequences for children who should rightfully be considered Malaysian. The Constitution states that a child born in Malaysia with at least one Malaysian parent shall be a citizen by operation of law. Yet, in the case of children who are born out of legal wedlock, this has been interpreted to mean that citizenship can only be passed on to the child if the mother is Malaysian.

Roisah Abdullah, having been born in Klang to a Malaysian father and non-Malaysian mother, lived her whole life in this country.

Roisah applied for citizenship and was denied on the basis that her parents were not married when she was born. Her first application was formally refused after a five-year wait, giving her only months to make another application before her 21st birthday.

But Roisah was luckier than most stateless individuals as she benefited from an unofficial guardian who assisted her schooling as a “foreign student”. Later, Housing and Local Government Minister Zuraida Kamaruddin became her legal guardian to allow her to make a fresh application before her 21st birthday. She was finally granted citizenship, having spent her whole life without a MyKad and unable to access basic public services.

But the fates of our young people should not be reliant on luck or favours. Most will not have the support or resources to fight long administrative and legal battles with the NRD, while also struggling with the daily challenges their stateless status presents.

The bureaucracy and long delays of the NRD place unnecessary barriers to citizenship for many who wait for years for a decision, often only to receive a rejection without any explanation and no further recourse. Some choose to reapply and restart their long journey to citizenship. Many have no choice but to give up. But the fact that citizenship is often granted outside of court at the last minute shows that the authorities have had the power to do so all along, so why are the stateless subjected to such unnecessary cruelty?

Despite the vast numbers of stateless persons in Malaysia, this should not be a difficult problem to resolve as the citizenship laws, policies and practices are within the control of the government.

It is their prerogative to reform or clarify the citizenship framework to end statelessness, should they wish to do so. In fact, our existing citizenship laws are adequate and should protect the vulnerable children and others born into these circumstances. The problem is how these laws are interpreted and applied.

The government must ensure that the NRD (together with the Home Ministry and the Attorney General’s Chambers) interprets the Constitution within the spirit of protecting stateless individuals and communities, not reinforcing discrimination or placing unrealistic bureaucratic barriers in their way.

Importantly, the government must ensure that the best interests of the child are protected when interpreting the Constitution.

The NRD needs clear and progressive guidelines so that genuine stateless Malaysians are not deprived of their citizenship.

They must relax their overly strict requirements and provide for alternative, more realistic procedures for applicants to obtain citizenship. This will ensure that statelessness can be addressed in a systematic, fair and transparent manner, and those who were previously deprived of citizenship can finally enjoy the rights to which they are entitled.

Eric Paulsen is the Representative of Malaysia to the Asean Intergovernmental Commission on Human Rights (AICHR). The views expressed here are entirely his own and do not necessarily reflect the official stance of Sunday Star.
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stateless , citizenship


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