KUALA LUMPUR - In 2009, 19-year-old Diyana (not her real name) fell in love with a young man Abdul Razak (not his real name). Both lived in Sabah and couldn’t wait to get married.
That impatience may have cost her children’s future. Her first hint of trouble came from the Sabah Islamic Affairs Department which would not approve their marriage application, supposedly because she was abandoned as a child and did not have a male family member or wali to give her away.
An elderly man had adopted and raised Diyana and her sister. He passed away two years earlier.
In Islam, close male relatives are charged with giving away their female relatives’ hand in marriage.
"They told me I could use a legal wali but the procedure was a bit complicated since I had no wali, so we decided to marry in the village, culturally,” Diyana, who now lives in Klang, Selangor, told Bernama.
To all intents and purposes, her marriage to Abdul Razak, a Malaysian citizen, was no different from the marriages of other couples. They had everything a couple needed except for a document bearing the official seal of the state government recognising the marriage, making their marriage invalid.
It all stems from Diyana’s statelessness. As she is not a citizen of any country, she is not allowed to marry legally. The Suluk woman is one of the rumoured hundreds of thousands of stateless people in Sabah and Sarawak, most of them having been foundlings and abandoned children.
According to news reports, the increasing number of foundlings is supposedly one of the reasons why the government is proposing to amend several provisions in the Federal Constitution regarding citizenship to, among others, restrict birthright citizenship of stateless children born in Malaysia. Another justification is to preserve national security, although no evidence or data has been presented to support this.
Home Minister Datuk Seri Saifuddin Nasution Ismail has said the Cabinet is set to discuss the amendments tomorrow (March 8).
INEFFECTIVE SOLUTION
One of the proposed constitutional amendments seeks to allow Malaysian mothers married to foreign nationals to pass citizenship to their foreign-born children. While activists welcomed this, they are balking at the other proposed amendments - dubbed regressive - such as the one removing automatic citizenship of foundlings, abandoned children and children of permanent residents, and requiring them to apply for citizenship instead.
The government is also proposing to lower the maximum age to apply for citizenship from 21 to 18 years.
Civil rights groups and scholars say these "regressive” amendments will exacerbate statelessness in the country, rather than prevent or solve it.
Activists and civil rights groups told Bernama they have heard government officers saying the proposed amendments are needed to prevent foreigners from abandoning their children in Malaysia. Requiring them to apply for citizenship would theoretically weed out stateless children of foreigners, who are said to deliberately abandon their infants and children in Malaysia to take advantage of current protections in the Federal Constitution.
Legal scholar Dr Rodziana Mohamed Razali did not see how restricting citizenship to these children would deter intermarriages and stop people from having children out of wedlock.
"(Like those due to) unregistered marriages... they're unable to register due to the fact the mother is undocumented, irregular or of undetermined citizenship,” she said.
Cases like Diyana, for instance.
Her difficulty in getting a wali to represent her was just the tip of the iceberg for her and her family. Since stateless people are not allowed to marry, her four children - one boy and three girls - are all stateless because they are considered born out of wedlock. In such cases, citizenship, non-existent or otherwise, passes through the mother.
The girls in turn will pass on their statelessness to their children. Being stateless means they will not be able to work meaningfully or open a bank account. They won’t be able to get free healthcare services or continue their tertiary education. There is always a risk of detention because they are non-citizens. They also do not have the right to travel freely.
Their only hope to break the curse is to get citizenship.
But the process is long and difficult with no guarantee of success. On Oct 1 last year, Saifuddin Nasution told reporters the ministry approved 19 citizenship applications out of 9,539 processed as of Sept 30, 2023.
A few stateless persons have found some success by going through the court to get citizenship, although this too is a lengthy process as well as expensive.
"Even as we speak, there is no automatic recognition of abandoned children,” said Agalya J. Munusamy, a citizenship lawyer at MahWengKwai and Associates.
LACK OF DATA
Experts and advocates said before any amendment is passed, there should be a study on its possible impact and implications on society and the nation’s economy and security.
However, the government does not have data on "genuinely” stateless people in Malaysia - that is, those without citizenship or ties to other countries, and born and bred in Malaysia. Instead, the National Registration Department groups the stateless with foreign workers, refugees and undocumented migrants under the catch-all term of non-citizens.
Some NGOs do have estimates of their numbers. Development of Human Resources in Rural Areas Malaysia (DHRRA), a non-profit organisation that works with stateless people, told Bernama over 9,000 cases of stateless persons from four states in Peninsular Malaysia are currently registered with them.
Sabah alone has an estimated 300,000 stateless people, although the figure is based on the number of non-citizens in the state, according to Maalini Ramalo, director of social protection at DHRRA.
Stateless people should not be confused with refugees, foreign workers or undocumented migrants. While refugees can also be stateless, like the Rohingya, the distinction is that the "genuine” stateless people in Malaysia have no country of origin other than Malaysia, are usually descended from residents of Malaysia from before Malaysia was formed, and usually have one Malaysian parent.
Former Foreign Minister and Home Minister Tan Sri Syed Hamid Albar told Bernama the government should not rush to pass the amendments without conducting a thorough study on its impact and implications first.
He said it is important to distinguish between the various groups of non-citizens and draw a line between the different types of stateless persons as genuinely stateless people differ greatly from non-citizens who hail from other countries.
"A lot of the (stateless who were) born here do not know anywhere else except here, have been living here and they do not know any other language. They identify themselves with this country. That one I think you need to consider separately,” he added.
SECURITY ISSUES
On Feb 28, Deputy Home Minister Datuk Seri Shamsul Anuar Nasarah, in his reply in the Dewan Rakyat to a question on the impact of statelessness on the economy and nation-building, said welfare issues must be considered alongside security matters, adding that foreign workers and undocumented migrants are not entitled to citizenship.
He did not provide data to support his arguments.
Experts warned against falling for the psychology of fear.
Rodziana, who is also a senior lecturer at the Faculty of Law and Sharia at Universiti Sains Islam Malaysia, told Bernama it is crucial to back any argument with data and evidence.
She said so far the government has not shown any proof to support the arguments that foreigners were abandoning their children en masse or how stateless children posed security risks.
"So probably because of the phenomenon of intermarriages between locals and foreigners and the fact that foreigners are trying to take advantage of our locals by having children and through that have their pathways to stay in the country... but, well, that remains fictional unless you give us data,” she said.
Ironically, creating a bigger pool of stateless people, who are unable to leave the country and have few options, may actually create security issues in the long run. Stateless people are also more vulnerable to abuse, exploitation and human trafficking.
"It's not healthy also for us to have big numbers of stateless persons under the guise of protecting our national security, sovereignty and/or safety,” said Syed Hamid.
He said he understood the need to ensure whether the person applying for citizenship is entitled to one and that new citizens can contribute to the country.
Syed Hamid and Rodziana agree that passing the amendments, especially the one removing automatic citizenship from foundlings and abandoned children, would lessen Malaysia’s standing in the world.
Rodziana said passing the amendments would be going against the global trend of protecting vulnerable communities such as women and children.
"I think (the government) is ignoring a lot of international norms that we sign up to that sort of bind us. Such as protection of foundlings through their right to citizenship, (it) is something that is internationally protected under international law,” she said.
"Instead of moving forward to strengthen the protections, we are doing the opposite,” she added.
SOLDIERING ON
The toll of being stateless and knowing she has passed her statelessness to her children weigh heavily on Diyana. Looking at her 13-year-old daughter, who is a top student at her school and wants to be a doctor when she grows up, her face falls.
Diyana dreads telling her daughter that she may not be able to go to medical school, let alone any university after SPM.
She told Bernama she has felt like giving up many times but she soldiers on in the hope that her children will have a better future and that they will finally belong.
"It’s okay if I don’t get my citizenship. But my kids, they still have a lot of life to live,” she said. - BERNAMA