The Journey to Strive for Equal Citizenship Rights in Malaysia
In 2019, Mrs. Esther Teo, a 37 year old Malaysian citizen alongside her foreign national husband, faced a pivotal decision that would significantly influence the trajectory of their family’s future. Driven by the desire for her unborn child to be automatically granted Malaysian citizenship – a privilege denied to her elder daughter born in Germany – Mrs. Teo made a poignant decision. Despite lacking clearance from her gynaecologist, she resolved to return to her home country, Malaysia, shortly before giving birth. With determination to secure Malaysian citizenship for her child, Mrs. Teo, discreetly concealing her pregnancy from airport officials, embarked on a risky long-haul flight back to Malaysia.
Reflecting on this challenging journey, Mrs. Teo revealed, “I did not receive clearance from my doctor to travel, so I opened my wardrobe and wore the bulkiest clothes I could find to conceal my pregnancy and board the plane.” Her journey began in 2006 when she initially travelled to Germany for studies, eventually building a life there through work and marriage. Despite the life she had built abroad, Mrs. Teo unequivocally considers Malaysia her true home, grounded in the deep ties to her family and roots. She conveyed, “I couldn’t bear to stay there if my two daughters did not have Malaysian citizenship,” underscoring the challenging and stressful period she navigated within her marriage during this crucial decision to return.
For Mrs. Teo and her eldest daughter, there exists a glimmer of hope in obtaining Malaysian citizenship, a critical determinant for access to education, healthcare, and employment. Malaysia’s Constitution delineates various pathways for citizenship acquisition, encompassing “operation of law,” registration, and naturalization. The unfolding journey for Mrs. Teo and her family underscores the profound significance of citizenship in shaping their lives and futures, bridging the connection between personal history and national identity.
In response to an ongoing legal battle initiated by Malaysian mothers, presently under consideration by the Federal Court, the government has put forth proposed constitutional amendments. These amendments aim to grant Malaysian mothers equal rights to confer automatic citizenship upon their children born overseas, mirroring the existing privilege enjoyed by Malaysian fathers.
According to the National Registration Department, from 2013 to 2018, over 10,000 applications from Malaysian mothers were submitted. Regrettably, only 142 of these applications received approval, leaving the majority either rejected for undisclosed reasons or left pending. This situation has not only impacted the mothers but also had far-reaching consequences for their children, denying them access to local healthcare and education systems.
For decades, Malaysian mothers have been compelled to depend on. Article 15(2) of the constitution – which allows anyone under the age of 21 to apply for citizenship, granted that at least one parent is Malaysian, in their effort. to secure citizenship for their children born abroad.
However, in contrast to the automatic right granted to fathers under Article 14(1)(b), success in an application under Article 15(2) is neither automatic nor guaranteed. Approvals, subject to the discretion of the home ministry, are rare.
Based on experiences of these Malaysian mothers, they are often misinformed by authorities both abroad and at home, facing inconsistent information and practices. Despite occasional success stories, the average waiting time for approval ranges from one to seven years or more, often involvingmultiple rejections and re-applications. Allegedly, rejections are perceived as part of the standard operating procedures (SOPS) designed to assess the sincerity and loyalty of. these Malaysian mothers, a test not accorded to Malaysian fathers.
So, while developing a new SOP may be a temporary solution, there is a dire need for a permanent solution.
The Landmark Judgement
The landmark judgement in the case of Suriani Kempe & Ors v Kerajaan Malaysia & Ors [2021] 12 MLJ 558, delivered in 2021, sheds light on the compelling narrative of gender-biased and discriminatory citizenship laws affecting Malaysian mothers with overseas-born children. Suriani Kempe, the President of Family Frontiers, a Women’s Association dedicated to the well-being of families in Malaysia, brought the case before the High Court. The plaintiff sought a declaration that Articles 14(1)(b) and Part II of the Second Schedule were discriminatory towards women, arguing for a harmonious reading with Article 8(2) of the Federal Constitution.
However, the triumph for Malaysian women was short-lived, as the Government of Malaysia appealed to the Court of Appeal in Kerajaan Malaysia & Ors v Suriani Kempe & Ors. In a 2–1 majority decision on August 5, 2022, the Court of Appeal overturned the High Court judgement. The Court held that, following the 2001 amendment to Article 8(2), gender discrimination was constitutionally unlawful unless expressly authorized by the Federal Constitution. Consequently, gender discrimination in Article 14(1)(b) and Part II of the Second Schedule was deemed legitimate. The Court emphasized that the term ‘father’ in the provision was unambiguous and did not include ‘mothers’ or ‘parents.’
Recognizing the inherent discrimination against Malaysian mothers, the Court of Appeal acknowledged the limitations in interpreting constitutional provisions and underscored the role of the Legislature. While acknowledging the existence of gender discrimination in the Federal Constitution, the Court maintained that it could not stretch or pervert the language of the Constitution. The court emphasized the need for legislative action to rectify any perceived inequalities, emphasizing the separation of powers and the specific constitutional framework within which it operates.
The Court’s position aligns with the warning from Abdoolcader J in Merdeka University Berhad v Government of Malaysia, emphasizingthat the Constitution should not be construed narrowly but without stretching or perverting its language. The Court of Appeal referred to the Federal Court’s decision in CCH & Anor v Pendaftar Besar bagi Kelahiran dan Kematian, Malaysia, highlighting citizenship by operation of law as a fundamental right without room for discretion or interpretation.
Gender discrimination and violation of UN convention of rights of child
In principle, Malaysia’s legal framework falls short in recognizing mothers as equal parents, creating a stark disparity within citizenship laws. The Federal Constitution explicitly grants citizenship by operation of law to children born overseas to married Malaysian fathers (Article 14(1)(b)), but remains conspicuously silent on children born overseas to Malaysian mothers. This omission significantly complicates the process for registering children born abroad as Malaysian citizens, subjecting Malaysian women to a more arduous and unequal experience and perpetuating a sense of being relegated to second-class citizens.
This deeply rooted gender imbalance is entrenched in patriarchy, fostering and perpetuating sexist attitudes that exert influence over the application processes. Malaysian women are expected to conform to their husband’s citizenship, residing overseas without the option for their children to autonomously choose their nationality, a stark contrast to the freedom enjoyed by children born abroad to Malaysian fathers.
Malaysia, currently standing among only twenty-five countries globally and one of four in the Asia Pacific region with discriminatory citizenship laws, faces a pivotal call for change. The urgent solution lies in amending Schedule II of the Federal Constitution, explicitly allowing both men and women to confer citizenship on their children born outside of Malaysia through an identical and equitable process. This amendment seeks to rectify the glaring gender disparity and afford Malaysian women the rights they deserve, representing half of Malaysia’s population. Such a change aligns with global efforts toward gender equality and ensures that Malaysian citizenship laws adhere to principles of fairness, justice, and equal rights for all citizens.
The recent case, initiated by six women, resulted in the lower court ruling in their favor, securing citizenship for their overseas-born children. However, the appeal court imposed a freeze on other applications until the Federal Court delivers its decision.
Revealed in a parliamentary session last month, the Home Minister disclosed 591 submissions under Article 14(1)(b) from children born overseas to Malaysian mothers between 2021 and July this year. While some cases were resolved, the majority remain outstanding, underscoring the pressing need for systemic change.
Malaysia’s discriminatory nationality law not only contradicts international norms but also conflicts with the UN Convention on the Elimination of All Forms of Discrimination Against Women (CEDAW) and the UN Convention on the Rights of the Child (CRC), both of which Malaysia has ratified. In 2018, the UN CEDAW Committee urged the Malaysian government to overhaul constitutional provisions denying women equal rights in the transmission of nationality to their children and foreign spouses.
Should Malaysia fail to undertake comprehensive reforms to its nationality laws, it risks falling behind as a growing number of countries strive to eliminate gender discrimination in their citizenship legislation. Presently, Malaysia stands as one of only three countries globally denying men equal rights to confer nationality on children born outside legally recognized marriages, and one of only 25 countries denying women the right to confer nationality on their children on an equal basis with men.
To uphold gender equality, in line with the UN Sustainable Development Goals, Malaysia must leave no one behind and embark on meaningful reforms to its nationality laws.
Working towards progress
The journey toward achieving equal citizenship rights for Malaysian mothers with overseas-born children has witnessed notable progress. In December 2022, the Federal Court granted Family Frontiers’ application for leave to appeal, sparking optimism for amendments to Article 14 of the Federal Constitution (#PindaPerkara14). The objective is to reinstate the High Court’s decision, ensuring children’s citizenship rights and rectifying gender discrimination against women in Malaysia.
On February 17, 2023, the unity government, led by Home Minister Datuk Seri Saifuddin Nasution Ismail and Law and Institutional Reform Minister Datuk Seri Azalina Othman Said, reached a consensus to amend citizenship provisions. Proposed changes include replacing “father” in section 1(b) of Part II of the Second Schedule with “at least one of the parents,” empowering Malaysian mothers to confer citizenship to their children, a commitment in line with Pakatan Harapan’s 15th General Election manifesto.
The contentious citizenship issue has spurred national debates, reflecting a global struggle against outdated and discriminatory legislations. While political will has historically hindered reform efforts, signs of progress are emerging with the unity government recognizing the necessity for constitutional amendments after more than 60 years.
A detailed breakdown of the proposed amendments reveals concerns raised by civil society stakeholders:
Section 19B, Part III of the Second Schedule:
Amendment: Change from citizenship by “operation of law” to citizenship by “registration.”
Effect: Foundlings and abandoned children may lose automatic citizenship, subjecting them to the Home Minister’s discretionary power.
Section 1(a), Part II of the Second Schedule:
Amendment: Deletion of the words “permanently resident.”
Effect: Children born to Malaysian Permanent Residents may lose access to automatic citizenship, risking intergenerational statelessness.
Section 1(e), Part II of the Second Schedule:
Amendment: Shift from citizenship by “operation of law” to citizenship by “registration”; repeal of Section 2(3).
Effect: Vulnerable individuals, including children born out of wedlock, adopted, and abandoned stateless children, may lose constitutional protection against statelessness.
Article 26(2):
Amendment: Replace “date of marriage” with “date of obtaining citizenship.”
Effect: Citizenship of foreign spouses of Malaysian men may be revoked if marriages dissolve within two years of obtaining Malaysian citizenship.
Article 15(A):
Amendment: Amend and reduce the age limit from “21 years” to “18 years” for citizenship registration.
Effect: Stateless child applicants may face a reduced timeframe to apply for citizenship, potentially closing the pathway for stateless children.
Concerns arise over proposed “regressive” changes, urging the government to separate amendments to avoid creating a new class of stateless persons. The lack of transparency regarding additional proposed amendments emphasizes the need for careful consideration in the Dewan Rakyat sitting, requiring a two-thirds parliamentary majority for constitutional approval.
Further controversy surrounds the constitutional amendment as the government incorporates it into a package of changes to citizenship provisions. Limited transparency about these proposed amendments has raised concerns, particularly regarding the removal of constitutional provisions protecting foundlings, individuals born in Malaysia without foreign citizenship, and children born to parents with Permanent Resident status. These issues underscore the necessity for thorough examination in the Dewan Rakyat sitting to prevent unintended consequences and to ensure the protection of citizens’ rights.
Conclusion
The discourse surrounding citizenship remains a contentious and vital subject nationwide. While some nations stride towards embracing more inclusive laws, others persist in clinging to antiquated and discriminatory legislations. This challenge is compounded by a notable lack of political will, posing a significant impediment to the much-needed reform of these laws. In the absence of a steadfast commitment from government leaders to tackle the issue head-on, making strides towards more just and equitable citizenship laws becomes an uphill battle.
However, amidst these challenges, there is a glimmer of optimism. The unity government has begun taking action and acknowledging the imperative need for amending the Federal Constitution, a foundational document in existence for over 60 years. Despite this, the citizenship law remains unchanged, and Malaysian mothers find themselves still waiting for their rights to confer citizenship to their overseas-born children. This lingering delay underscores the urgency for decisive action and highlights the persistent need for reform in ensuring equal citizenship rights for all.
[Written by: Harshaall Medha Naidu, Edited by: Emily Tang]
