By Benjamin Loh and Shanthi Thambiah
Malaysian freelance journalist Tehmina Kaoosji was born outside the country to a Malaysian mother and Indian father.
Under Malaysia’s constitution, children of foreign fathers born overseas are not entitled to automatic citizenship. By contrast, children born overseas to Malaysian fathers married to foreign women can become citizens through a simple registration process.
Just 0.6% of those in Tehmina’s position are successful in navigating Malaysia’s slow, arbitrary citizenship application process. According to data that a government official presented to Parliament, 14,477 people applied for citizenship over the 21.5 months through Oct 15, 2020.
Without legal citizenship, they are treated as foreigners in terms of school and hospital fees and denied access to many social and welfare services. As a result, Tehmina is steeled to try her luck.
Many Asian countries take a similarly unbalanced approach to granting citizenship as Malaysia does.
These nations should reconsider their colonial-era views on citizenship and expand the rights to women. Malaysian mothers should enjoy the same status as Malaysian fathers in being able to confer citizenship to their children. This should be the women’s right regardless of who they marry and where they have their children.
Citizenship is a highly political matter in Malaysia. The government has discretionary power to grant citizenship to foreigners it considers to be outstanding and able to benefit the country in sports or other fields.
But aside from those in Tehmina’s position, many find it difficult to obtain citizenship due to lack of documents or proof of the registration of their birth. This contributes to ongoing cases of statelessness, with the UN High Commissioner for Refugees estimating their number as at least 10,000 just for Peninsular Malaysia.
Two years ago, the community organisation Family Frontiers challenged the government’s citizenship policy in court and requested a ruling that children born overseas to Malaysian mothers and foreign fathers be entitled to citizenship.
In defending the policy, the government insisted that citizenship is a national security matter and that a changed approach could result in dual citizenship, forbidden in Malaysia, given that a number of other countries grant citizenship as Malaysia does via the father or by virtue of local birth.
Malaysian activists, however, see the current policy as a means to punish women who choose foreign husbands, especially those from poorer Asian countries, particularly Indonesia, the Philippines, Bangladesh and Pakistan.
The High Court, however, backed Family Frontiers, ruling that children like Tehmina should be automatically conferred citizenship. The judge in the case said that the word “father” in the country’s constitution should be read to include mothers, with their children equally entitled to citizenship.
But in August, the Court of Appeal overturned the High Court ruling in a 2-1 decision, ruling that a constitutional amendment would be the proper channel for changing the country’s citizenship policy.
In the wake of the appeal ruling, legislators filed 17 bills for consideration in the session that started this week to establish equality on the issue in the constitution. But the parliamentary Speaker disqualified all of them, ruling that constitutional amendments must be first endorsed by a body that includes the sultans and governors of Malaysia’s various states.
Activists had questioned the sincerity of legislators in the ruling coalition in proposing such bills with elections expected to be called soon, painting it as a campaign stunt without evidence of real intentions to pass such a measure. They had noted that legislators had many opportunities to get involved in the issue since Family Frontiers filed its lawsuit in 2020.
The lack of political will is of great concern even with opposition parties. When the opposition held power a few years ago, its youth and sports minister publicly pledged to assist a stateless Malaysian e-sports player to gain citizenship but in fact the gamer succeeded only after a long court battle and with help from the next government.
While it remains to be seen if a constitutional amendment bill will indeed be tabled or whether Family Frontiers’ appeal to the Federal Court, the country’s highest, will succeed, Malaysians are calling on politicians from across the political spectrum to make the citizenship issue a priority and to redress the grievances of mothers fighting for their children’s rights.
Until women are given parity in the simple but rightful act of passing down citizenship to their children, other issues around nationality will only continue to plague Malaysia.
Originally published by Nikkei. Benjamin Loh is a senior lecturer in the School of Media and Communication at Taylor’s University in Selangor, Malaysia, and an associate fellow of the Asia Centre in Bangkok and Shanthi Thambiah is an associate professor of gender studies at Universiti Malaya in Kuala Lumpur.
The views expressed are those of the writers and do not necessarily reflect those of FMT.