Some 20,000 ethnic Indians have been denied their right to identity and citizenship, says Ramdas Tikamdas. These are the “invisible Malaysians” who encounter unimaginable difficulties in accessing or are denied the fundamentals of human rights in education, health care, employment and housing.
In our geopolitical system of the nation state and territorial sovereignty, a person’s identity is dependant upon his national identity. A homo sapien without a national tag is officially non-existent. Even a “refugee” or “illegal immigrant” or a person having “political asylum” has a preexisting nationality and whatever rights under international or domestic law conferred on such a person is based on the recognition of the person’s original nationality.
But what about persons born in a country whose birth, because of conditions of alienation, poverty, ignorance, neglect or remoteness of the bureaucracy, have not been registered under the prescribed laws? What is the State’s obligation to such persons?
This paper is restricted to the problem of undocumented Indians born in the Federation but due to a consequence of life of alienation or exploitation in the estates are not properly registered after birth and have no identification card to establish their identity. These are the “invisible Malaysians” who encounter unimaginable difficulties in accessing or are denied the fundamentals of human rights in education, health care, employment and housing. They are consequently denied the essence of human dignity in a prosperous nation aspiring to developed status.
According to data collected by Era Consumer’s community centres in four states –
Kedah, Perak, Selangor and Negeri Sembilan – and anecdotal evidence, there are an estimated 20,000 Indians without birth certificates, Identity Cards or marriage certificates. So what is the State’s obligation to such persons?
The Universal Declaration of Human Rights 1948, which is now entrenched as customary international law and given recognition in our domestic law pursuant to Section 4(4) of the Human Rights Commission of Malaysia Act, 1999 states:
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Everyone has the right to recognition everywhere as a person before the law.
Article 15 (1)
Everyone has the right to a nationality.
Article 15 (2)
No one shall be arbitrarily deprived of his nationality.
Pursuant to the Federal Constitution, Article 14, Second Schedule, Part 1 and II, citizenship by operation of law is granted to persons born within the Federation in the following circumstances:
(i) every person born within the Federation on or after Merdeka Day on 31st August 1957 and before October 1962.
(ii) every person born within the Federation after September, 1962 of whose parents one at least was at the time of the birth either a citizen or permanently resident in the Federation.
It is therefore clear that if anyone is born in the Federation from Merdeka Day up to end of September 1962, that person is entitled to citizenship irrespective of whether either one of that person’s parents are citizens or permanent residents. For persons born in the Federation after September 1962, then one of the parents at least must be a citizen or permanent resident.
DNA testing is possible
In the normal course, proof of birth and parentage is based on the Birth Certificate. What if, due to various circumstances, the birth is not registered and there is no Birth Certificate? In such cases, the laws and regulations to determine proof of birth must be reasonable and rational and the bureaucracy cannot act arbitrarily or capriciously.
If the paperwork trail fails because the mid-wife witness or one parent is dead or not traceable, then surely proof of parentage to one parent at least can be procured from DNA testing. And the obligation to provide DNA testing facilities must surely lie on the State and not the marginalised and impoverished non-entity seeking recognition from the State within whose territories the person is born.
It is especially significant that Malaysia has ratified the Convention on the Rights of the Child (CRC) and the Convention on the Elimination of All Forms of Discrimination Against Women (CEDAW).
The relevant provisions of the CRC are as follows:
(1) The child shall be registered immediately after birth and shall have the right from birth to a name, the right to acquire a nationality and, as far as possible, the right to know and be cared for by his or her parents.
(2) States Parties shall ensure the implementation of these rights in accordance with their national law and their obligations under the relevant international instruments in this field, in particular where the child would otherwise be stateless.
(1) States Parties undertake to respect the right of the child to preserve his or her identity, including nationality, name and family relations as recognised by law without unlawful interference.
(2) Where a child is illegally deprived of some or all of the elements of his or her identity, States Parties shall provide appropriate assistance and protection, with a view to speedily re-establishing his or her identity.
The relevant provision of CEDAW is as follows:
Article 9 (2)
States Polices shall grant women equal rights with men with respect to the nationality of their children.
The State must provide assistance
Therefore based on the obligation undertaken by the State pursuant to the international conventions, where the child has been “illegally deprived …of his or her identity” for instance, because of failure or neglect to register the birth according to the prescribed law, then the State has an obligation and responsibility to “provide appropriate assistance and protection, with a view to speedily re-establishing his or her identity”.
Further, this obligation and responsibility of the State to the child shall be “without discrimination of any kind, irrespective of the child’s or his or her parent’s or legal guardian’s race, colour, sex, language, religion, political or other opinion, national, ethnic or social origin, property, disability, birth or other status”. (Article 2- CRC)
It is hoped that this forum will result in increased awareness of the disability and plight of stateless but de facto Malaysian nationals. Progress and prosperity accomplished without justice to the descendants of the communal sector upon which the plantation economy was historically established will be a blight to the rule of law in our democracy.