Proposed amendments to citizenship law, a regressive move with a progressive face

In June last year, Home Minister Datuk Seri Saifuddin Nasution Ismail announced that the ministry was in the midst of finalising a "comprehensive" proposal to the Constitution and would seek royal assent from the Conference of Rulers.

01 Feb 2024 01:51pm
Photo edited by Sinar Daily, stock photo 123rf.
Photo edited by Sinar Daily, stock photo 123rf.

What truly defines a person as a citizen of a country?

Is it the mere possession of an identification card? Or does it delve deeper into shared values, responsibilities and a sense of belonging?

In Malaysia, there are people who would find themselves without a recognised nationality.

For these individuals, the absence of a clear legal identity means that they would face hurdles in accessing essential services such as healthcare, education and employment.

So, imagine being in a situation where you don’t belong to any country.

This is why we have the Federal Constitution. The third part of the Constitution focused on citizenship and it was drafted in such a way that no child shall be stateless.

But what is the controversy now?

In June last year, Home Minister Datuk Seri Saifuddin Nasution Ismail announced that the ministry was in the midst of finalising a "comprehensive" proposal to the Constitution and would seek royal assent from the Conference of Rulers.

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But it turned out that the so-called "comprehensive proposed amendments" not only contained newly slipped-in elements, but the removal of other rights which could worsen the issue of statelessness in Malaysia.

It will scrap the rights for citizenship particularly for stateless children adopted by Malaysian parent(s), foundlings (abandoned children) as well as children of Malaysian permanent residents (PR).

And what happens if a person is stateless?

Without citizenship, stateless people are often hindered from accessing their basic rights to healthcare, education and employment, among others.

Although these things are not "forbidden", it will most definitely be illegal or expensive without proper documentation.

Basically, they are unable to enjoy their inherent rights which could lead to serious social problems.

Currently, Article 14(1)(b) of the Constitution, read with Section 1(e) states that every child born in Malaysia who is not born a citizen of any country otherwise will receive citizenship by operation of law.

When citizenship is obtained by operation of law, it is deemed automatic.

This provision is basically a safety net to prevent statelessness.

However, the government is proposing to amend the provision from citizenship by "operation of law" to citizenship by "registration".

This would mean that Malaysia-born stateless children will no longer automatically get citizenship.

Instead, they will need to apply to be a citizen of Malaysia and the decision will be based on the discretion of the Home Minister.

Similarly, the ministry also proposed to amend Section 19(b) from citizenship by "operation of law" to citizenship by "registration".

This provision states that any newborn child who are found exposed in any place shall be presumed, until the contrary is shown, to have been born there of a mother permanently resident there and is automatically a citizen by operation of law.

But with the amendment, it means that instead of automatically being a citizen of Malaysia, children whose parental origins are unknown (foundlings) would automatically be stateless.

These individuals would not know who their biological parents are as they might have been abandoned because their parents died in an accident or the mother was a rape victim or in prison and they were placed at the orphanage or adopted by couples who wanted a child.

When they grow up, if the amendment was in place, it would mean that they have to apply to have citizenship and go through a discretionary process.

What are they supposed to tell the National Registration Department when they register if they knew nothing about where they came from?

Is it their fault that they were abandoned? That they had to go through the risk of being stateless?

Another regressive proposed amendment?

Currently, under the Constitution, children born in Malaysia whose at least one of the parents is a PR, are automatically a citizen.

However, the ministry has now proposed to remove the words "permanently resident" eliminating the automatic citizenship right for PR children.

Let’s take Saifuddin for example. In an interview with BBC News Indonesia, he shared that his parents were Indonesians.

In the 1950s, his father had migrated from Mandailing, Indonesia to Singapore where he was born before they settled in Kedah.

In this situation, if his parents were PRs in Malaysia, Saifuddin would by operation of law is a citizen of Malaysia, in which he is.

But if this amendment was made, people like Saifuddin would no longer receive citizenship automatically.

In simpler terms, the amendment could mean that individuals born to PR parents might not get citizenship automatically and would affect many like Saifuddin, the current Home Minister overlooking the amendments himself.

These current clauses under the Constitution are drafted considering that Malaysians will engage with people from other countries for trade, imports and exports as our economy depends on it.

We rely on foreign countries as well, so there will be connections and relations with other nations and there will be those who will fall in love and get married to people from other countries.

The Constitution has taken this all into consideration. The citizenship law under the Constitution is actually progressive.

But if the laws are already progressive, how did we get here?

Four months before Saifuddin announced the proposed amendment in February last year, the government announced that the Cabinet agreed to amend the Constitution to allow Malaysian mothers with a foreign husband the right to confer citizenship on their child automatically, a privilege currently afforded to only Malaysian fathers.

This comes on the heels of a legal action initiated by the Association of Family Support & Welfare Selangor and Kuala Lumpur (Family Frontiers) as well as six Malaysian mothers and an individual against the government to obtain a declaration that Article 14(1)(b) read with the Second Schedule, Part II, Section 1(b) of the Constitution is discriminatory and against the spirit of Article 8 that prohibits discrimination on the grounds of gender.

There is no problem with this proposed amendment as it is about time for this kind of change. Mothers and fathers should be treated equally, as in Article 8.

But as the country welcomes this progressive change, why did the government propose for the other changes? The changes which run the risk of perpetuating statelessness in this country and most importantly, the changes that nobody asked for.