Author: Sarisha Harikrishna
April 17, 2024
Malaysia is not an exception to the global effort towards achieving gender equality with there being various positive moments for Malaysian women in this regard. However, Malaysia does fall short in terms of empowering its laws to allow Malaysian women who are married to foreign spouses and have given birth abroad to confer their citizenship to their children. Although Malaysia is party to the Convention on the Elimination of All Forms of Discrimination against Women (CEDAW), its citizenship provisions enshrined in the Malaysian Federal Constitution have not always been very equal. In fact, according to global rights group Equality Now, Malaysia is one of 28 countries that bar women from passing on their nationality to their children born outside of their home country. The United Nations (UN) has condemned Malaysia’s stance and pointed out that discriminating against individuals based on their gender is a violation of international law.
The Legal Fight for Justice
Thus, the people, especially Malaysian women, began taking it into their own hands to carve a better future for their children and ensure that their basic right, a right to Malaysian nationality, is afforded to them. Family Frontiers, an organization dedicated to bringing the plight of these women to the public, are at the forefront of this movement to amend the discriminatory provision of the constitution. Six Malaysian mothers affected by this provision, along with Family Frontiers, filed a lawsuit in the High Court against the government on December 18, 2020. In 2021, the Malaysian government sought to have this case struck out but this effort was ultimately futile as the Court rejected their argument that the case was ‘frivolous’.
The plight of Malaysian mothers unable to confer their citizenship to their children born overseas was highlighted by the film Saya Juga Anak Malaysia, which translates directly to ‘I am a child of Malaysia’. The fight for citizenship was not without loss as a Malaysian mother, Sabeena Syed Jafer Hussain Zaidi who had fought tirelessly for 14 years to ensure that her four children became Malaysian citizens, sadly passed away. Her children are still unable to be recognised as Malaysian citizens.
A Step in the Right Direction
In his election manifesto, then Prime Minister candidate Anwar Ibrahim promised that this alarming issue would be the focal point of his future Cabinet’s attention. Currently Prime Minister Anwar has stayed true to his promise to the Malaysian people and his Cabinet has tabled the amendment to the citizenship provisions in the constitution. This proposed amendment seeks to substitute the word “father” to “at least one of his parents”. However, it must be noted that this move will not be without roadblocks—for an amendment to the constitution, the most supreme law of Malaysia, a majority agreement in Parliament and the agreement of the Council of Rulers is needed. As a constitutional monarchist state, Malaysia holds great reverence for its King (known as the Yang di-Pertuan Agong) and the Council of Rulers which comprise of rulers from the different states in Malaysia.
One Step Forward, Two Steps Back
The move to propose amendments to the discriminatory provisions in the constitution has been welcomed with open arms. However, along with these proposed amendments that will undoubtedly bring about positive changes in the legal atmosphere, the government also proposed an amendment that will potentially undermine the rights of women even further. The amendment of Article 26(2) of the constitution that seeks to substitute the phrase “date of marriage” with “date of obtaining citizenship” may lead to foreign wives being stripped of their Malaysian nationality. If a Malaysian man’s marriage to his foreign wife has irretrievably broken down within a timespan of two years of her attaining Malaysian nationality, her Malaysian citizenship will be revoked.
This is an incredibly alarming issue for two reasons. Firstly, these amendments which have been agreed to by the Malaysian Cabinet are in contrast to the present citizenship provisions in the constitution, which aims to prevent, not create, statelessness. Article 8 of the constitution explicitly prohibits gender discrimination, so allowing such a law would be in clear contravention. Secondly, Malaysia is a country that strictly disallows dual citizenship, meaning that for a foreign woman to be eligible to gain Malaysian citizenship, she would have to renounce her nationality of her country of origin. This has been clearly outlined by Article 24(1) of the constitution, which states that the federal government reserves the right to revoke an individual’s citizenship if that individual is found to have attained another citizenship. When a foreign woman is granted Malaysian citizenship but then has it revoked as her marriage to her Malaysian husband has dissolved, she will inevitably be stateless. Statelessness is an issue that Malaysia has long struggled with, and this proposed amendment is not only an aggravation of this issue but also a huge blow to women's rights. To further rub salt into the wound, these proposed regressive amendments are inconsistent with the government’s initiatives, particularly those aimed at empowering the Human Rights Commission of Malaysia (“SUHAKAM”) as even SUHAKAM’s dissatisfaction with the proposed amendments were blatantly ignored. While the initial proposed amendment brings joy to a group of women after a long fight for their rights, another group of women have their future hanging in limbo.
Glossary
Article 8(2) of the Federal Constitution: ‘Except as expressly authorised by this Constitution, there shall be no discrimination against citizens on the ground only of religion, race, descent, place of birth or gender in any law or in the appointment to any office or employment under a public authority or in the administration of any law relating to the acquisition, holding or disposition of property or the establishing or carrying on of any trade, business, profession, vocation or employment’.
Article 26(2) of the Federal Constitution: ‘The Federal Government may by order deprive of her citizenship any woman who is a citizen by registration under Clause (1) of Article 15 if satisfied that the marriage by virtue of which she was registered has been dissolved, otherwise than by death, within the period of two years beginning with the date of marriage’.
Convention on the Elimination of all Forms of Discrimination against Women (CEDAW): A human rights treaty adopted by the UN to ensure women’s rights and fundamental freedoms on a basis of equality with men in all areas of life.
Family Frontiers: A non-governmental organization that aims to advance, promote and strengthen family unity so that no family is left behind.
Federal Constitution: The Constitution of the Federation of Malaysia that codifies all of the laws that all Malaysian citizens need to adhere to. First created in 1957, the year that Malaysia gained independence and later amended in 1963 when one of its constituents, Singapore left Malaysia, the Federal Constitution is the highest law of the land.
Frivolous: Not based on fact or good reasons, or relates to an unimportant issue, so that it is obviously not likely to succeed or has any merits in taking the suit to court.
Human Rights Commission of Malaysia (SUHAKAM): An independent organization that investigates human rights violations in Malaysia.