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Every year on 10 December, the Malaysian Bar commemorates Human Rights Day to raise awareness on the universality and indivisibility of human rights, with a vision of empowering all of us to fight for our rights and to take action.
This year, the Malaysian Bar directs its focus particularly towards a long-simmering issue in need of immediate attention by the Government — citizenship and statelessness in Malaysia.
The Malaysian Bar commends the Government’s decision on 18 February 2023 in approving constitutional amendments to the Federal Constitution (“FC”) in relation to citizenship, in particular Article 14(1)(b) and sections 1(b) and 1(c) of the Second Schedule, Part II of the FC, to address the current discriminatory laws and grant automatic citizenship to children born overseas to Malaysian mothers and non-Malaysian fathers.
However, the Government had expressed that “other amendments related to citizenship, especially Part III, will be studied in greater detail by a committee established under the home ministry and will be tabled before the Cabinet after these proposed amendments have been finalised, taking into consideration feedback from engagements with all interested parties”.1
The Malaysian Bar notes that the Ministry of Home Affairs engaged with civil society organisations on 23 June 2023 to seek views on the proposed amendments to Part III of the FC on citizenship matters. Some of the key proposed amendments (“proposed amendments to the FC”) include:
(1) Entirely removing sections 1(e) and 2(3) of the Second Schedule, Part II of the FC, which fundamentally protect persons from becoming stateless;
(2) Removing the right of foundlings, including abandoned children, to citizenship by operation of law under section 19B of the Second Schedule, Part III of the FC;
(3) Deleting the words “permanently resident” in section 1(a) of the Second Schedule, Part II of the FC;
(4) Including provisions consolidating and granting more discretion to the Government to reject or postpone citizenship applications;
(5) Repealing Articles 15(3) and 16A of the FC for consistency;
(6) Lowering the age limit from 21 to 18 to obtain citizenship in particular Articles 15, 15A, 19 and 23(3) of the FC; and
(7) Replacing the phrase “date of marriage” with “date of obtaining citizenship” on Article 15(1) read with Article 26(2) of the FC.
The Malaysian Bar is deeply perturbed about the above-listed seven proposed amendments to the FC, which will have far-reaching and detrimental effects to our society. It will affect the lives of vulnerable persons and significantly exacerbate the long-standing issue of statelessness in Malaysia. These proposed amendments to the FC are devoid of justifications and unsupported by proper data, and would remove the existing constitutional protection for some categories of stateless children, leaving them without any constitutional safeguards. For instance, removing section 1(e) in its entirety will only exacerbate the current situation and add a new category of stateless persons to the existing long list of categories.
The negative impact — politically, economically and socially — on the lives of stateless persons cannot be overstated. They would be denied access to, among other things, fundamental rights including formal education, healthcare, formal employment, and access to justice. Due to all these disadvantages, they become vulnerable and earmarked for abuse, mistreatment, and subsequently, become victims of social ills.
The Malaysian Bar further notes that despite immense pushback from the various stakeholders at multiple platforms, the Unity Government appears to assert that their course of action is limited and is dependent on the decision of the Conference of Rulers, as the proposed amendments to the FC have been presented to them for consent.2
The Malaysian Bar urges the Government to re-evaluate and halt the proposed amendments to the FC as it is a step backwards and is perilous to the already vulnerable segment of our society. A transparent, thorough, and genuine consultation process with the relevant stakeholders, as well as undertaking further research to fully understand the implications and impact of proposed amendments to the FC, would be the right course of next action. Instead of implementing the proposed amendments, the Unity Government must ameliorate the current existing citizenship framework, preserving the constitutional safeguards within the FC and the recent court decisions,3 giving life to these existing constitutional safeguards. Surely these existing constitutional safeguards are in place since Merdeka and have been conferred because the FC drafters thought that it would not be detrimental to the interests of the country to do so.4
The Malaysian Bar takes the position that the original provisions of the FC, which provided the Constitution with its basic foundation and structure, took into account the dignity and freedom of individuals,5 and cannot be destroyed by any form of amendment. The powers to amend the FC should not abrogate, emasculate, or damage any of the fundamental rights or the essential elements in the basic structure of the FC. The Government should therefore prioritise the welfare of the country, both citizen and non-citizen, including those currently stateless, but who have been living as Malaysians, considering Malaysia their only home.
The Government should emphasise the amendments to grant automatic citizenship to children born overseas to Malaysian mothers and non-Malaysian fathers, and put aside its plan to combine and package the seven listed proposed amendments to the FC, which would only serve to complicate the issue.
The Malaysian Bar is committed to supporting efforts to reduce the gap in this matter and pursuing other necessary legal reforms, and will continue to engage and participate in stakeholder engagements to provide our perspective and point of view, and assist in reviewing and giving feedback on the current state of laws.
Karen Cheah Yee Lynn
President
Malaysian Bar
11 December 2023
1 “Cabinet gives green light to amendments on equal citizenship”, Malaysia Now, 18 February 2023.
2 “Amid calls to refine proposed citizenship amendments, PM Anwar says govt must honour Rulers’ position, will explain to backbenchers”, Malay Mail, 6 November 2023.
3 For example, the Federal Court case of CCH & Anor v Pendaftar Besar bagi Kelahiran dan Kematian, Malaysia [2022] 1 MLJ 71 recognising that section 19B of the Second Schedule, Part III of the FC allows foundlings to be presumed to be born to Malaysian parents at the time of their birth if the identity of their biological parents cannot be identified.
4 Kesavananda Bharati & Ors v State of Kerala & Anr LNIND 1972 SC 531, Supreme Court of India.
5 Ibid.