On 15 February 2022, the Court of Appeal dismissed an appeal filed by the Ministry of Home Affairs that sought to set aside the High Court mandamus that a Ms L, a teenager, be registered as a Malaysian citizen.
While this is welcome news, it should not distract us from the fact that the ministry remains unrepentant and its stance is unnecessarily blighting the lives of approximately 2,000 children who are in a similar situation as Ms L was.
Ms L was born in Ipoh and has a Malaysian father. But she was denied citizenship by the National Registration Department because her Filipino mother’s marriage to her father was not registered officially at the time of her birth. This often happens when migrant women workers marry Malaysian men as they have to cancel their work permits, go back to their home country and come back to Malaysia on a social visit visa to formally register their marriage.
Section 14 (1) of the Malaysian Federal Constitution (read together with Section 1(a) Part 2 of the Second Schedule) confers citizenship to any person born in Malaysia after 1963 if either his or her father or mother is a citizen or a permanent resident of Malaysia.
Unfortunately, the Ministry of Home Affairs routinely uses Section 17 of Part 3, Second Schedule of the Federal Constitution to deny automatic conferment of citizenship to this category of children. Section 17 states that the determination of citizenship status for an “illegitimate” child will depend solely on the mother’s citizenship status.
Unfortunately, the ministry chooses to take a very broad definition of the term illegitimate. Though Ms L’s father’s name is recorded on her birth certificate, and her father presented a DNA test that proved conclusively that he is the biological father, the Registration Department considered her “illegitimate”, as her parents had not registered their marriage at the time of her birth. Ms L was therefore denied citizenship.
This category of persons (whose foreign mother’s marriage to their Malaysian fathers is not registered officially) are required to apply under Section 15A of the Federal Constitution that accords the Malaysian government the discretionary right to grant or withhold citizenship.
More often than not, applications under 15A are rejected by the home minister without any reason being given. Ms L’s application was rejected three times before her father filed an application for a judicial review.
There are 2,000 children in the same boat that Ms L has just disembarked from – the offspring of Malay men married to Indonesian and Thai women, Chinese men married to Burmese and Vietnamese women and Indian men married to Indonesian and Sri Lankan women. The majority of them are from the bottom 40% of the population, which means they can ill-afford the expenses and the time required to file judicial reviews of the government’s rejection of their citizenship application.
The denial of citizenship badly affects these children and their families.
It is a struggle to get registered in a government school: they need to apply through the district education office and are charged additional fees every year. They are not eligible for free textbooks or school meals.
Often, they are barred from sitting for the Primary School Achievement Test (UPSR) or Lower Secondary Assessment (PMR) exams. Most of them drop out before completing secondary school.
If they fall ill, they are charged foreign patient rates in government hospitals.
The lack of an identity card is a big barrier to employment in the formal sector.
How does this harsh policy benefit our nation? Most of these children will continue living and working in Malaysia, as it is the only country that they know. However, their academic and vocational development is stymied by this unenlightened policy. Does stunting their potential help anyone?
The government can solve this problem easily by choosing to define the term “illegitimate” more narrowly to refer only to those children whose fathers cannot be identified.
A new standard operating procedure should be adopted by the Ministry of Honme Affairs that allows these children to be registered as citizens under Section 14(1) as long as it can be confirmed that their biological father is Malaysian and that they were born in Malaysia. The failure of their parents to register their marriage should not be used to disqualify their Section 14(1) application.
However, the fact that the ministry chose to appeal the High Court decision favouring Ms L is a clear indication that the government remains ‘recalcitrant’.
We need more Malaysians to speak up on this issue until a more humane and enlightened policy is adopted by the Malaysian government.