When a child is born outside the borders of the home country of their parents, said home country will usually allow citizenship to be passed onto the child. The same is true in Malaysia, that is unless — you are a woman.
As of September 7th, 2022, Malaysia is one of just 28 countries in the world that deny women the right of passing their nationality to their children on the same basis as men. This means that if a Malaysian woman were to marry a foreigner and give birth to a child born outside the borders of Malaysia — they would be unable to pass said citizenship to the child.
However, if a Malaysian man were to do the same, his right to pass on citizenship would be guaranteed by Article 14(1)(b) of the Federal Constitution (explored further below) unless the child was born outside of marriage.
In Malaysian law, most Malaysians acquire citizenship through Article 14(1)(b) of the Federal Constitution. Chia Swee Yik, partner at Chia, Lee & Associates, explains in an online article that by operation of Article 14(1)(b) a person is a Malaysian so long as:
(a) he/she was born on or after Malaysia day on 16 September 1963 in Malaysia and one of the parents at least is a citizen; or
(b) in the event he/she was born on or after Malaysia day on 16 September 1963 outside Malaysia, then at the time of birth his/her father was a Malaysian citizen and the birth is registered at a consulate of Malaysia within a year or within such longer period as the Federal Government may in any particular case allow.
When these conditions are met, there is no room for discretion by authorities and the person in question is automatically a citizen. In most cases where women marry foreigners, they can simply apply through the provisions in the spouse's home country to claim citizenship for their children.
However, this becomes problematic in situations where the mother may have gotten divorced/separated from their foreign spouse thus desiring to return home to raise the child with support from their family. Said spouse may not be able to provide for the financial or emotional needs of the mother wherein the mother is completely valid in her choice of leaving the spouse.
Additionally, said foreign spouse may have become deceased before an application to confer citizenship can be performed, therefore the option may no longer exist. Besides that, other women who have already planned on returning home to deliver their babies and are already separated are sometimes unable to due to pregnancy complications or job commitments. This meaning that there are instances where Malaysian women wish to respect Malaysian law but due to no choice of their own are simply unable to.
What then can a woman do?
Application under Article 15(2)
Women faced with this predicament traditionally have had to rely on Article 15(2) of the constitution which states:
(2)[…], the Federal Government may cause any person under the age of twenty-one years of whose parents one at least is (or was at death) a citizen to be registered as a citizen upon application made to the Federal Government by his parent or guardian.
This article allows anyone under the age of 21 to apply for citizenship as long as one parent is Malaysian, thus covering mothers. Despite this provision being available, it is extremely rare for it to be carried out successfully.
The home minister revealed during a parliamentary session in March of this year that out of the 4,870 applications since 2013 — only 117 were approved, just over 2%. 1,728 applications were outright rejected, and the rest were pending a decision.
Family Frontiers have reported that these applications can take close to a decade, and when rejected, some mothers aren’t even provided reasons for rejection or reapplication instructions.
Adoption and application under 15A
Article 15(A) of the constitution gives the power to the government to cause any person under 21 to be registered as a citizen in such special circumstances as it thinks fit. While the term ‘special circumstances’ are largely undefined, we can look at recent precedences to determine their meaning.
In February of 2019, the Federal Court granted the Article 15A application to 5 stateless children with varying circumstances, two of which were adopted children to Malaysian couples who did not know the identity of their biological parents.
This is not to suggest an elaborate scheme of putting biological children into foster homes and adopting them to grant citizenship, it simply means that for some Malaysian mothers who have adopted children- Article 15A is an available remedy-albeit a rare one.
Article 19 : Naturalisation
This remedy is one that is very far-fetched and undesirable for mothers in this circumstance. A person may acquire citizenship through naturalization, provided: they are over 21 years old, have resided in Malaysia for the required periods, intend to do so permanently, are of good character, and have adequate skills in the Malay language.
This too is at the discretion of the government and is an outright insulting solution to propose to mothers in this circumstance. For it would require them to wait over two decades from the birth of the child and expect the child to gain adequate skills in a language they may not have any sort of access to.
Effects of a lack of citizenship
There are both social and tangible effects of this law on women who cannot confer citizenship on their children. Firstly is a moral conundrum, human rights groups such as the Global Campaign for Equal Nationality rights have called the state law gender discriminatory, an implicit endorsement of the idea that women are inferior, having a second-class citizenship status.
Secondly, it potentially leads to the statelessness of a child in instances where the foreign spouse is unable or refuses to apply for citizenship of their child. In most countries, a local birth certificate and citizenship are required to access public facilities like affordable healthcare and education.
In addition, many facets like employment, inheritance rights, property rights, civil rights, and freedom of movement are inhibited by the lack of citizenship, this can range from being denied the right to work to be unable to live openly without risk of being sent to refugee camps. This traps women abroad in a country without access to medicine and schooling for their children, and no other alternative.
Thirdly it leads to pernicious circumstances for women who dare not leave their spouses. Even in instances where the child is a full citizen of the foreign spouse, the inability to secure citizenship means that the mother is effectively forced to remain in a potentially abusive relationship or be separated from her child.
Children may be forced to constantly chase students and work visas potentially costing tens of thousands from education fees. In addition, during those visa visits- non-citizens are forced to pay higher education and medical fees.
Legal History of Developments
Amendment of the constitution to include the right of mothers to confer citizenship has been a battle long fought by Malaysian women’s rights groups with varying success.
In 1995, the Malaysian government ratified the Convention on the Elimination of All Forms of Discrimination against Women (CEDAW) and in 2001 amended its constitution to be more gender inclusive but made reservations on matters dealing with nationality.
In 2018, the Pakatan Harapan Manifesto, Special Commitment to Women, and Commitment 4 even promised to:
“review all laws relating to gender equality to ensure that every woman enjoys legal equality”.
but made no such changes in regard to this matter.
Suriani Kempe vs Government of Malaysia
Most recently in December 2020, the local rights group Family Frontiers and 6 Malaysian mothers with non-Malaysian spouses and children challenged the constitutionality of Article 14(1)(b) in court and were successful. In September of 2021, the High Court of Malaysia ruled in the mother's favor that the word “father” shall be interpreted harmoniously to include “mother” and that overseas-born children of Malaysian women are citizens by “operation of law”.
This was a short-lived success, as on August 5th, 2022, the Court of Appeal ruled in favour of the government on a 2–1 split, declaring that the relevant provisions refer to the “biological father” and cannot be extended to mean the “mother”.
Representatives of the UN have called out the government for failing to fulfill its CEDAW requirements. The UN has also stated that Article 14(1)(b) contradicts Article (8)(2) of the Malaysian constitution that no public authority should interfere with the right to private and family life.
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