The Malaysian Bar is alarmed by Home Minister Saifuddin Nasution Ismail’s statement on 8 March, announcing plans to proceed with regressive amendments to the Federal Constitution regarding citizenship.
Reference is made to our previous press release entitled “The Malaysian Bar urges the government to re-evaluate and halt recent proposed amendments to citizenship laws deemed regressive” on 11 December.
The Malaysian Bar restates its position that the regressive amendments should be halted, as the erosion of the rights of stateless persons is not attributable to the existing provisions of the Federal Constitution, but is a result of the inefficiencies, complex and discriminatory bureaucratic practices, and lack of transparency within the National Registration Department.
The government should instead focus its resources on training officers in the department to efficiently deal with citizenship applications and abolish unnecessary discriminatory bureaucratic hurdles that seek to delay the processing of such applications.
While the Malaysian Bar supports efforts by the government to amend citizenship provisions in the Federal Constitution to grant Malaysian mothers the equal right to confer automatic citizenship on their children born overseas, just like Malaysian fathers – this specific amendment approved by the cabinet and “championed” by the home minister is no better than crumbs of compassion that come with overbearing barriers of exclusion in other areas concerning statelessness.
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The Malaysian Bar’s stand is that the government’s proposed amendments to the Federal Constitution are regressive in nature, and it has become increasingly urgent that the government takes the severe pushback expressed by numerous quarters seriously, instead of continuing to pursue the regressive amendments.
The regressive amendments spoken of are:
- Amending Section 19B of the Second Schedule, Part III of the Federal Constitution to alter citizenship by “operation of law” to citizenship by “registration”, which will result in foundlings and abandoned children being deprived of automatic citizenship. The term “operation of law” affords protection to foundlings as this provision grants them the benefit of the doubt in cases where the date and place of their birth, as well as the identity of their biological parents, are unknown and cannot be substantiated. The suggested amendment seeks to place foundlings under the discretionary authority of the home minister for citizenship determination, unjustly imposing the onus of proving parentage on the child
- Amending Section 1(a) of the Second Schedule, Part II of the Federal Constitution to delete the words “permanently resident”, which would result in children born to Malaysian permanent residents, who would become stateless, no longer having access to citizenship by “operation of law”. In effect, vulnerable populations – including current stateless communities like the “childhood statelessness” category, Orang Asli and Orang Asal – could also face the peril of being ensnared in the cycle of statelessness across generations
- Amending Article 26(2) of the Federal Constitution to replace “date of the marriage” with “date of obtaining citizenship” may lead to citizenship deprivation of foreign wives, because if a Malaysian man’s marriage dissolves within two years of his wife being granted Malaysian citizenship, the foreign spouse’s citizenship will be revoked. This will have far-reaching consequences on the foreign spouse and the children (if any)
- Amending Article 15(A) of the Federal Constitution to reduce the age limit from “twenty-one years” to “eighteen years” for citizenship registration effectively shortens the time frame for applications. The main source of the problem is the bureaucratic delays and appeals – which could take years to process citizenship applications – that subsist, as well as the introduction of an illegitimate registration requirement that never existed previously.
It would appear that the cabinet’s approval of these amendments is antithetical to the citizenship provisions in the Federal Constitution, which were meant to prevent, not manufacture, statelessness.
While the cabinet has given the green light to these regressive amendments, the decision creates a polychromatic hue when juxtaposed with other government policies and law reform initiatives, particularly those aimed at empowering the Human Rights Commission of Malaysia (Suhakam) – as even Suhakam’s criticisms of these amendments affecting the struggles of stateless individuals in Malaysia fell on the government’s deaf ears.
In analysing these proposed regressive amendments, it is apparent that they are designed to allow the National Registration Department to impose discretionary citizenship processes, in addition to the existing bureaucratic hurdles faced by stateless persons.
The Malaysian Bar cautions against such amendments as an excessive allowance of discretion can pave the path to corruption. When discretion is utilised for purposes divergent from the public good or manipulated for personal gain, it can breed corruption and abuse of power.
The Malaysian Bar will continue to oppose these regressive amendments and, in doing so, we are guided by the fact that the right to nationality constitutes a fundamental human right as enshrined in Article 15 of the 1948 Universal Declaration of Human Rights.
Recognition as a lawful citizen of a nation affords numerous legal privileges, which include, inter alia, the right to suffrage, access to social security, healthcare amenities, public education and the pursuit of gainful employment. No group of persons should be deprived of these privileges.
Karen Cheah is president of the Malaysian Bar.
This piece is reproduced from here and has been edited for style only.
AGENDA RAKYAT - Lima perkara utama
- Tegakkan maruah serta kualiti kehidupan rakyat
- Galakkan pembangunan saksama, lestari serta tangani krisis alam sekitar
- Raikan kerencaman dan keterangkuman
- Selamatkan demokrasi dan angkatkan keluhuran undang-undang
- Lawan rasuah dan kronisme
