Malaysia’s Proposed Citizenship Amendments: Gender Equality Moving Ahead but Other Challenges Surface

Malaysia's government has proposed several constitutional amendments regarding citizenship. The first addresses an ongoing controversy by granting Malaysian mothers equal rights to confer citizenship on their overseas-born children as men. However, simply extending existing rights available to Malaysian fathers to Malaysian mothers would perpetuate existing problems, like the evidentiary requirement that the child be born within a valid marriage at the time of birth. Other amendments may restrict citizenship rights for vulnerable groups, including “foundlings” and long-term residents' children, raising concerns about creating a permanent and expanding stateless population – writes Dr. Jaclyn L Neo

Introduction

In early 2023, Malaysia’s Unity Government announced plans to amend the country’s Federal Constitution to automatically allow Malaysian mothers the right to confer citizenship on their overseas-born children – a privilege currently afforded only to Malaysian fathers. This comes in the wake of sustained efforts from civil activist groups and seeks to constitutionally resolve a series of contradictory court decisions on citizenship. For the ruling Pakatan Harapan coalition government, there is an added dimension – their 2022 election manifesto included a promise to move on this issue.

The change to equalize rights of both Malaysian fathers and mothers is the most high-profile of several amendments in the planning. According to Prime Minister Datuk Seri Anwar Ibrahim, the amendments could be tabled in the year-end parliamentary session, starting in September. A proposed consultation with the Conference of Rulers – a council comprised of the nine rulers of the Malay states and governors of the other four states, Penang, Melaka, Sabah and Sarawak – is apparently scheduled for October. Under Malaysia’s Federal Constitution, constitutional amendments require the support of two-thirds of the total number of members in each House of Parliament. However, amendments pertaining to citizenship also require the consent of the Conference of Rulers (Article 159(5) of the Constitution).

The Controversy of Malaysia’s Current Situation

Under current constitutional provisions, only male citizens automatically confer citizenship to a child born abroad. Specifically, Article 14 (1)(b) in conjunction with Part II of the Constitution’s Second Schedule lays out the conditions of citizenship for people born after Malaysia Day, i.e., the day when the Federation of Malaya merged with Singapore, Sabah, and Sarawak to form a united Malaysia in 1963. Singapore seceded from the Federation in 1965. The Second Schedule stipulates that ‘every person born outside the Federation whose father is at the time of the birth a citizen’ is a Malaysian citizen.

Of course, this does not mean that overseas-born children of Malaysian mothers are entirely barred from acquiring Malaysian citizenship.

Of course, this does not mean that overseas-born children of Malaysian mothers are entirely barred from acquiring Malaysian citizenship. Currently, Malaysian mothers may rely on Article 15(2) of the Constitution, which allows any person under the age of 21 with at least one Malaysian parent to apply for citizenship by registration. This includes children born to Malaysian mothers outside of a recognized marriage (as confirmed by the Federal Court of Malaysia).

An interim administrative procedure from 2010 was meant to operationalize the registration provision but, according to reports, the process remains arduous and time-consuming, with rejections outweighing successful applications. Civil society organizations confirm that under the current arrangement, ‘approvals for citizenship applications under Article 15(2) are an arbitrary process, fraught with delays, repeated rejections and inconsistencies.’ This contrasts with the reportedly ‘fairly streamlined process which may be completed in a few days’ that Malaysian fathers enjoy under Article 14.

Some questions have been raised as to what is meant by the term “father” in the Constitution and whether it is meant in a literal sense. The Constitution and its language are colonial in character and the term “father” in a modern interpretation should, some might argue, refer more broadly to parents. This issue was litigated in a series of court cases between 2020 and 2022 brought by affected Malaysian mothers and supported by civil society groups. Courts did not settle on a clear line. Earlier decisions favoured the interpretation that “father” should be taken to include “mother” as well because only that interpretation would be consistent with the non-discrimination clause in Article 8(2) of the Federal Constitution. That verdict was welcomed not just by the applicants and affected children, but even a government Minister praised it as ‘illuminating’. However, the most recent decision, from the Malaysian Court of Appeal, ruled that the term “father” refers exclusively to a biological father. The decision was met with criticism from United Nations experts, pointing out that ‘[d]iscriminatory nationality and citizenship laws embody patriarchal values that undermine women’s basic human rights and expose them and their children to harm and further discrimination.’ Disappointed applicants indicated that they would take the case to Malaysia’s Federal Court, the country’s highest court of appeal.

When a child born to a Malaysian mother abroad moves to Malaysia, the lack of citizenship may affect the child’s access to education, health and other social services.

The practical effects of the father-only clause can be significant for affected families. In a not uncommon scenario, when a child born to a Malaysian mother abroad moves to Malaysia, the lack of citizenship may affect the child’s access to education, health and other social services. Visa and immigration rules may make it difficult or impossible for children to enter or remain in the country that their mother is a citizen of. Furthermore, global travel restrictions, like those witnessed during the Covid-19 pandemic, might make it impossible for families to reunite. In the most extreme scenario, if a child cannot obtain the citizenship of another country, an overseas-born child of a Malaysian mother might become stateless, lacking essential protection from any state.

Beyond the negative practical consequences on affected children and families, concerns have also been raised that the father-only clause violates the Constitution’s equality provision in Article 8, which guarantees non-discrimination on the grounds of religion, race, descent, place of birth or gender in law. Indeed, one might speculate that one reason why the government is proceeding with the constitutional changes now is to preempt constitutional challenges succeeding in Malaysia’s highest court.

International Treaty Obligations in Relation to Gender Equality

The unequal treatment of men and women with regards to citizenship rights is not unique to Malaysia, but the country is among a minority. Currently, Malaysia is in the company of 24 other states that maintain such disparities in their nationality laws. By way of comparison, Singapore, whose Constitution was partly derived from Malaysia’s Federal Constitution, amended its Constitution in 2004 to grant equal rights to Singaporean mothers. The new provision now grants citizenship to overseas-born children whose ‘father or mother is a citizen of Singapore, by birth, registration or descent.’

Nationality laws that discriminate on the basis of gender are in contradiction to the Convention on the Elimination of All Forms of Discrimination against Women.

The proposed change in Malaysia’s Constitution to grant overseas-born children of Malaysian mothers the same citizenship rights as those born overseas to Malaysian fathers vindicates the constitutional guarantee of gender equality in Malaysia, aligning the country more closely with its obligations under the Convention on the Elimination of All Forms of Discrimination against Women (CEDAW). Nationality laws that discriminate on the basis of gender are in contradiction to Article 9(2) of CEDAW, which obliges states to ‘grant women equal rights with men with respect to the nationality of their children.’ Malaysia acceded to CEDAW in 1995 and amended its Constitution in 2001 to include gender as a prohibited basis of discrimination. However, as commentators have observed, while CEDAW’s provisions can inform constitutional interpretation, they cannot, by themselves, override Malaysia’s constitutional provisions on citizenship rights. Further, while Malaysia ratified the Convention on the Rights of the Child in 1995, it made reservations to the two provisions most relevant to nationality (Articles 2 and 7).

Perpetuating Existing Issues with the Citizenship Provisions

The proposed changes to the father-only clause are simple: according to reports, Prime Minister Anwar stated that the words “whose father” are to be replaced with “at least one of the parents” in Part I and Part II of the Second Schedule of the Constitution. This would make the language of the Constitution gender neutral, thereby granting women equal rights to pass down citizenship to their children born overseas.

While the Constitution is silent on this, the government has required proof of valid marriage at birth for citizenship eligibility.

Many civil society organizations laud this overdue change. However, it bears noting that simply extending existing rights available to Malaysian fathers to Malaysian mothers would perpetuate some of the existing issues with this constitutional provision. While the Constitution is silent on this, the government has required proof of valid marriage at birth for citizenship eligibility. Children born outside of a valid marriage are treated as illegitimate, and, under current jurisprudence, not eligible for citizenship by operation of law. This poses significant evidentiary burdens, especially if the parents registered their marriage outside Malaysia. Malaysian fathers are required to show a Malaysian marriage certificate when registering the birth of their child, and parents need to re-register their foreign marriage with a Malaysian consulate or when they return to Malaysia. There could be further administrative hurdles if the country of marriage registration is different from where the child was born

Package of Proposed Changes: Slipping in Statelessness?

There is even further controversy surrounding this constitutional amendment because the government appears to be making it part of a package of constitutional changes to the citizenship provisions. There has not been much transparency about these other proposed amendments, though information revealed to the press and to civil society organizations in consultation meetings has highlighted several problematic aspects: three stand out as particularly worrying.

The first is the purported removal of constitutional provisions that protect children whose parental origins are unknown, termed “foundlings”. Under the current Article 14(1)(b) of the Federal Constitution, read with Section 1(a) of Part II of the Second Schedule, and Section 19B of Part III of the Second Schedule, a newborn child found abandoned is presumed to have been born to a mother resident there, and is automatically a citizen by operation of law.

The proposed amendment would purport to remove this citizenship entitlement and require these foundlings to acquire citizenship by registration. This would not only subject their citizenship rights to the broad discretion of the Home Minister, but also raise serious questions as to who would be responsible for registering these abandoned children for citizenship, what would be the registration timeframe, and what factors could the Home Minister possibly validly apply to determine these babies’ entitlement to citizenship by registration. Since some of these children could end up in welfare homes, would the home administrators have a constitutional obligation to apply for their citizenship by registration? Or would a relevant ministry be under a constitutional duty to do so? Furthermore, on what basis could the Home Minister deny the application of an abandoned Malaysia-born baby to be registered as a citizen?

A second problematic amendment is to the residual provision Section 1(e) in Part II of the Second Schedule (read with Article 14(1)(b)), which states that ‘every person born within the Federation who is not born a citizen of any country otherwise than by virtue of this paragraph’ would also be citizens by operation of law. This provision has been a safety net for persons born in Malaysia without acquiring foreign citizenship, and has been the primary constitutional basis for courts to declare such persons citizens. The proposed amendment purports to remove this route to citizenship by operation of law and to subject this class of persons instead to citizenship by registration only. This means again that their citizenship entitlement would be subject to the broad discretion of the Home Minister, presumably on the same terms as Article 15A of the Federal Constitution, which gives the Federal Government the discretion to register a person under the age 21 as a citizen, ‘in such special circumstances as it thinks fit’.

The third controversial amendment would remove the citizenship entitlement of children born in Malaysia to a parent with Permanent Resident status under Section 1(a) in Part II of the Second Schedule (read with Article 14(1)(b)). This means, again, that this class of persons would also be subject to ministerial discretion to grant citizenship by registration under Article 15A. This would perpetuate multigenerational statelessness among long-term residents of Malaysia who have themselves not been able to obtain citizenship due either to lack of documentation or delay. These residents may be from Indigenous communities or migrant communities that have lived for decades in Malaysia.

Conclusion

Many welcome the replacement of Malaysia’s “father-only” clause with a more inclusive, gender equal provision. However, civil society organizations have objected to what they perceive as an attempt to condition the expansion of citizenship rights to one group to the curtailment of the citizenship rights and entitlements of another group. More specifically, they argue that these additional proposed amendments could render more children stateless, thereby exacerbating statelessness in Malaysia. While Malaysian mothers and their overseas-born children may rejoice, the overall package risks creating a new growing underclass of (stateless) persons without much hope of legal status and social-economic inclusion.

Jaclyn L Neo is Associate Professor and Director of the Centre for Asian Legal Studies at the National University of Singapore Faculty of Law.

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Suggested citation: Jaclyn L Neo, ‘Malaysia’s Proposed Citizenship Amendments: Gender Equality Moving Ahead but Other Challenges Surface ', ConstitutionNet, International IDEA, 3 October 2023, https://constitutionnet.org/news/malaysias-proposed-citizenship-amendments-gender-equality-moving-ahead

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