Unequal Before The Law: How Malaysian Moms And Their Kids Are Second-class Citizens


Cover art by Darsh Kanda

Thousands of children the world over are stuck without Malaysian citizenship, innocent victims of archaic, sexist laws which deny Malaysian women the rights men have to automatically confer citizenship to offspring born abroad. For over six decades, little’s been done to make things right.

RAM ANAND examines this broken system that tears families apart.

*The names of the mothers have been altered or omitted.

When the Covid-19 pandemic began to ravage the globe last year, many Malaysians abroad sought the refuge of their home country.

Li Li, however, remained in Italy, not so much because she preferred it there, but because she’d been left with little choice.

The 37-year-old single mum had for years been longing to return to Malaysia with her four-year-old daughter and reunite with family.

The problem is, she’s afraid. You see, her daughter isn’t a Malaysian citizen, and Li Li isn’t sure how long her child would be allowed to even remain in Malaysia.

The child was born in Italy to Li Li and her non-Malaysian father. She is one of the thousands of children born overseas to Malaysian mothers stuck in limbo, still waiting for or denied citizenship by the Malaysian government.

They are the innocent victims of the country’s archaic, ambiguous and discriminatory citizenship policies that prevent Malaysian mothers with non-citizen husbands from automatically conferring citizenship to their children the way Malaysian dads abroad with foreign spouses can.

In the case of Li Li, any return to Malaysia would mean putting her daughter on a temporary visa with no guarantee of it being renewed. The problem is compounded with Covid travel restrictions. The last thing Li Li – or any parent, for that matter – wants is to be separated from her child due to red tape.

“I’m trapped here (In Italy),” she said.

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Fathers need not even apply

Over the last two weeks,
Between The Lines (BTL) spoke to over a dozen long-suffering women, both in and out of the country (we’ve compiled most of their stories on Instagram, which you read and listen to here and here).

One of their main bones of contention is that Malaysian fathers with non-citizen wives need not even apply for citizenship for their children born overseas. Malaysian moms do, in accordance with Article 15(2) of the Federal Constitution (*see Infobox #1 below).

These mothers are often made to wait years to know if they’re successful —  Li Li’s application for her daughter has been pending for four years now. Those who do hear back are often disappointed.

The number of women affected appear to be legion. According to government data, only 142 — a measly 1.6% — of citizenship applications made under Article 15(2) from 2013 to 2018 were approved, while 3,715 were rejected and 4,959 applications were pending.

Note, however, that apart from mothers of foreign-born children, other forms of citizenship applications for minors also make up these numbers. The Immigration Department did not respond to BTL’s request for a detailed breakdown.

For context, children whose citizenships have been rejected are often denied long-term visas, risk becoming stateless, forced to take on their fathers’ nationalities and could be denied the rights accorded to other citizens, such as access to public education, healthcare and welfare.

Worse still, this law also prevents at-risk mothers and children from escaping abusive households.

Some women, like Li Li, only discover the gender disparity when they begin the arduous process of applying for citizenship for their children.

With no clear guidelines as to what qualifies as approval or rejection by authorities, this leaves the discretion of which child is granted citizenship to the whims and fancies of Home Ministry officers.

Some women, like Kavita, 40, are already aware of this inequality. Hence, she’d intended to return to Malaysia to give birth to her daughter. Life, however, had other plans.

Pregnancy complications meant she was forced to deliver in Spain, where her husband works. That was four years ago. 

Despite providing documents proving the circumstances that led to her giving birth overseas, Kavita’s bid was rejected in 2019. She’s yet to hear back on her appeal.

And just like Li Li, Kavita baulks at the prospect of being separated from her child. So she remains in Europe, putting her career on hold — she was running her own veterinary practice in Malaysia. 

She says there’s just no empathy for mothers.

“They even refused to issue her (Kavita’s daughter) an emergency travel document for us to fly back to Malaysia.

I love Malaysia, my entire life’s in Malaysia, but this makes me question many things, things I never realised when I was living there. It’s made me very angry.

Sadly, according to Family Frontiers, the NGO that’s been tracking this issue since 2009 and that has since taken the Malaysian government to court, some mothers lose hope altogether after years of fighting a broken system.

Family Frontiers programme manager Melinda Anne Sharlini says: “Many Malaysian women reported to us that they were frustrated with the system and gave up when their applications were rejected after a long wait…

“Without reasons provided for the rejection, they were not confident of a positive outcome to reapply.” 

In the name of the law

What the Constitution says:

Article 14 grants automatic citizenship to every person born outside of Malaysia, providing his/her father is a citizen at the time.*

Article 15(2) allows registration of every person under 21, born to at least one Malaysian citizen, upon application by parent/guardian.

Article 8(2) allows for no discrimination against citizens on the grounds of religion, race, descent, place of birth or gender in any law, “except as expressly authorised by this constitution”.

*See also Part I and Part II of the Second Schedule
Source: Federal Constitution of Malaysia

The problem lies in the country’s very DNA — the Federal Constitution — itself, namely Article 14. It enables only male citizens to automatically pass on citizenship to children born in wedlock, regardless of where they’re born. The key word here is “automatic”.

On the flip side, the law concerning illegitimate children favours mothers, even those who are non-citizens, but creates difficulties for Malaysian fathers.

Ironically, Article 8(2) of the constitution disallows discrimination of citizens on the grounds of gender and/or place of birth, while Article 9(2) of the International Convention on the Elimination of All Forms of Discrimination against Women, of which Malaysia’s a signatory, promises women equal rights with men when it comes to the nationality of their children.

To law reform group Lawyers for Liberty co-founder Latheefa Koya, the problem has a very simple fix — one tiny amendment to Article 14.

“Just add the word ‘mother’ to the second schedule,” she tells BTL

Latheefa also hopes the court hearing the Family Frontiers’s case will provide a path to citizenship for affected children.

“If the court challenge fails, then there needs to be a campaign to amend the laws in Parliament. I don’t think anyone would say no to the amendment, but it must be framed that this is a fairly simple amendment to make,” she says. 

Yet, despite the problematic provisions, Latheefa says the country’s citizenship laws were generally “well-drafted”. The issue, therefore, is their interpretation by the Home Ministry and officers at the immigration and national registration departments. 

“You have instances where officers will tell some applicants to get some other documents from other embassies first, even though it’s not necessary,” she says. 

Going back decades

Tehmina Kaoosji, a broadcast journalist and gender activist, has been living with the fallout for almost three decades. 

Born in India to a Malaysian mother and an Indian father, Tehmina’s family came to Malaysia in 1995 when she was 10.

She recalls a close shave when in 2008, she was told the Immigration Department would no longer approve another extension on her student visa. She’d already stretched out her college education tenure for seven years while trying to find a more concrete way to stay in a country she’d called home for over a decade.

Luckily, she succeeded in gaining a permanent resident (PR) status in 2009, at the age of 24. Now 37, she qualifies for citizenship by virtue of being a PR-holder for 10 years. But she tells BTL she’s not prepared to go through the whole rigmarole of applying for citizenship.

Citizenship, she says, should’ve been granted to her a long time ago. She’s now hopeful that a change in the reading of the “cruel” laws — thanks to the ongoing court battle — could see her granted what she deems her birthright.

“I would like that to be the manner with which I become a citizen. It’s inhumane that we should go through (the application process) again. My mother’s gone through this thrice over (including for Tehmina’s siblings).

The fact this is written into the constitution is mind-blowing, that this is the level of gender discrimination that’s hardwired into the Malaysian legal and political hierarchy,” she says.

Having grown up without access to public schooling and healthcare, and having a late start to her career due to complications surrounding her citizenship, Tehmina warns that the feeling of disenfranchisement in affected kids stays with them, even into adulthood.

“Every single (transnational) family that we knew from back then are no longer residents in Malaysia. Most children, once they became adults, went back to their father’s country of origin.”

Little has changed

It’s obvious there’s little political will to drive the necessary change. 

Since the Federal Constitution was written, Malaysia’s seen three governments — Barisan Nasional (BN), Pakatan Harapan and now, Perikatan Nasional. 

The current Prime Minister, Muhyiddin Yassin, was home minister under the previous Pakatan administration while his former party, Umno, led the BN coalition up to 2018. Former premier twice-over Dr Mahathir Mohamad had also served as home minister in the 90s.

None have fixed this problem.

Any constitutional amendment requires a two-thirds majority vote in the lower house; no Malaysian administration has enjoyed such a supermajority since 2008. 

The BN government came close to doing something in 2010, when then-home minister Hishammuddin Hussein announced that his ministry would introduce new regulations “administratively” to help affected women obtain citizenships for their children, without the need to amend the laws.

Nothing changed.

Not only has this decade-old government stance been forgotten, Deputy Home Minister Ismail Mohamed Said last December insisted in Parliament that the issue was one of national security

His logic? The government wanted to prevent dual-citizenship for children of women with foreign spouses, allegedly believing, inaccurately, most children in other countries followed their fathers’ nationalities (*See Infobox # 2 below).

For the record, Malaysia disallows any citizen to hold dual citizenships.

Disparity in numbers

  • Malaysia is 1 of only 22 countries that have unequal citizenship laws affecting mothers 
  • It is only 1 of 4 countries in Asia (including Iran, Nepal, Brunei)
  • It is only 1 of 2 countries in SEA (including Brunei)
  • Only 142 of all *applications from 2013 to 2018 were approved

*under Article 15(2) of the Federal Constitution of Malaysia
Sources: Home Ministry written parliamentary replies 2019, UNHCR 2014, World Bank 2016

Addressing patriarchy

And although deputy minister Ismail’s explanation was roundly derided by lawyers, activists and opposition politicians alike, things, once more, stayed the same.

Such political gumption is “emblematic of past and current patriarchy mindset”, according to Segambut MP Hannah Yeoh. She spoke up on the issue while serving as women and family deputy minister under the Pakatan regime — one of the few politicians who did so.

In my previous conversations with MPs from all parties, many generally didn’t have an objection to fixing this. Many recognise the time is now.

“Our women minister then had written in and even raised this with Muhyiddin when he was home minister, but nothing moved,” she claims.

“It’s the lack of initiative and commitment from the home ministers — both past and present. If Undi 18 can be done, there’s no reason why this can’t,” she adds, referring to the 2019 constitutional amendment Bill to lower the minimum voting age, which received historical bi-partisan support.

At most, Muhyiddin had promised to revise SOPs for the processing of citizenship applications when he was home minister to make it fairer and speedier, including reducing the processing time for children to under a year from 2020. However, it’s unsure if such guidelines were ever implemented.

“(It’s) why we’re here today — facing mountains of applications that have not been processed, long processing periods and pending approval from the minister’s desk,” adds fellow opposition lawmaker Kasturi Patto.

She claims that any attempt to challenge the norm of citizenship application is often met with the argument of nationalism and worse, xenophobia. 

The “siege mentality” and “unchecked powers” must be challenged. The Batu Kawan MP suggests the Attorney-General’s Chambers serve as a catalyst for this change.

“Not discrimination”

It’s this lack of remedy for affected families that’s forced Family Frontiers to the courts. They, along with six mothers, filed a constitutional challenge with the Kuala Lumpur High Court late last year.

But are they seeking to amend the constitution? No. 

They’re not looking to strike down any provisions. What they hope is that a court order could address the contradictions and represent how the law is read moving forward — allowing women also automatically confer citizenship to their children.

Muhyiddin’s Perikatan government has attempted to strike out the suit, even labelling it frivolous and vexatious

The judge, however, threw out the strikeout bid, pointing to apparent discrimination that Putrajaya must justify. Putrajaya is appealing this. 

In fact, the government is insisting there’s no discrimination at play here. 

In his affidavit-in-reply to the court, sighted by BTL, current Home Minister Hamzah Zainudin argued, among others, that the law did not contradict Article 8(2) of the constitution on equal rights.

He also argued that the courts have no power to decide on matters of government granting of citizenship.

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We’re losing out

The mothers themselves can’t make sense as to why various administrations have doggedly refused to budge on the issue, with one mother describing it as a lose-lose situation that’s forcing women to remain overseas and chasing families away.

It was estimated up to a third of Malaysia’s one million-strong diaspora in 2010 alone constituted brain drain. Although specific numbers on gender were unavailable, improving on Malaysia’s inclusivity and immigration policies have been among suggestions mooted as a way to overcome this problem.

Over the years, the various administrations themselves have addressed the important role of women in the local workforce and the need to attract female talent. 

According to the World Bank in 2019, Malaysia’s income per capita could grow by 26.2% if all economic barriers were removed for women here. Women in the country who’ve been on career breaks are offered tax exemption to return to work, while “skilled” Malaysians abroad are offered tax incentives under the Returning Expert Programme to come home. 

Yet, the country still lags behind other Southeast Asian nations when it comes to female labour force participation rate (which stood at 55.8% in 2019). 

Failure to address the disparity in these citizenship laws could keep working mothers abroad, like Kavita and Li Li, from returning home and contributing to the workforce.

But the government seems determined to be blind to them. For Priscilla, a single mother living in Malaysia, the matter goes straight to the heart and strips her, her two daughters, and families like them of their rights and sense of belonging.

“I am Malaysian…This is who we are. It’s a huge disappointment that the government pushes mothers aside. 

“The moment they change that law, there’ll be so many Malaysian women coming back.

“But there is no humanity here.”

*BTL attempted to contact the Home Ministry, Minister Hamzah, Deputy Minister Ismail, former home minister Hishamuddin and the Immigration Department for comments. None have responded as at time of publication.

Ram Anand has been writing on Malaysian politics and policies for both local and regional news publication for over a decade.

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