Proposed amendments on citizenship laws in Malaysia: One step forward, several steps back — Shad Saleem Faruqi
Wednesday, 28 Jun 2023 12:58 PM MYT
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Prof. Datuk Shad Saleem Faruqi
JUNE 28 — The government must be congratulated for agreeing to amend the law to grant citizenship to children born overseas to Malaysian mothers. The proposed amendment will consign to the dustbin of history the intolerable gender discrimination between Malaysian men and women if their children are born abroad.
As the law stands, if a child is born overseas to a Malaysian father and a foreign wife, the child is eligible to inherit the father’s Malaysian citizenship. But if a Malaysian mother, in a lawful marriage with a foreigner, gives birth overseas to a child from the foreign father, our law disowns the child and he/she has to follow the foreign father’s citizenship.
While celebrating the proposed, positive constitutional evolution, we must nevertheless express alarm at some accompanying regressive proposals that allegedly seek to tighten the law on nationality. Some of these proposals are inhuman, cruel, heartless and in violation of our international obligations under the UN Convention on the Rights of the Child.
These alleged proposals will augment the suffering and deprivation of many helpless, dehumanised and victimised persons and groups, namely: abandoned children, children born out of wedlock (even if the parents then marry), adopted children, children of generational undocumented families and stateless persons and their offspring whose statelessness will spiral down the generations. It is alleged that a constitutional safeguard protecting individuals from becoming stateless, instead of being augmented, is quietly going to be removed. This may create a large new class of stateless persons.
Such regressive proposals may reach the decisive point because the Malaysian system of enacting and amending laws lacks transparency and consultative processes. There is a top-down approach to all decision-making. There is the unbelievable practice of misusing the Official Secrets Act to keep all legislative proposals under wraps till the Bill is laid before Parliament.
It is alleged that a constitutional safeguard protecting individuals from becoming stateless, instead of being augmented, is quietly going to be removed. This may create a large new class of stateless persons. — File picture by Farhan Najib
In some democratic countries, the Government publishes and publicises White Papers to outline its legislative proposals to invite public feedback. Parliamentary Committees indulge in thorough consultation with those who are likely to be affected. Civic-minded citizens and experts are invited to render advice.
Democracy is not mere periodic elections. Discussion before a decision is the essential condition of a democratic polity. It is time for our nascent democracy to evolve in this direction.
It is also humbly submitted that when the Amendment Bill is submitted to the Conference of Rulers for royal assent under Article 159(5), Their Majesties should not allow this controversial Bill with provisions that were hidden from the public to get by without thorough royal scrutiny.
Besides gender inequality, the cruel treatment of illegitimate but innocent children should end. Illegitimate children derive descent solely from the mother and the Malaysian father’s status (even if confirmed biologically) does not matter. There are structural issues that prevent poor or uneducated families from meeting their kids’ registration requirements.
The Yang di-Pertuan Agong and the Conference of Rulers are our constitutional auditors and Their Majesties must remain informed of the dark underbelly of this legislation.
* Prof. Datuk Shad Saleem Faruqi is Tunku Abdul Rahman Chair at Universiti Malaya's Faculty of Law.
As the law stands, if a child is born overseas to a Malaysian father and a foreign wife, the child is eligible to inherit the father’s Malaysian citizenship. But if a Malaysian mother, in a lawful marriage with a foreigner, gives birth overseas to a child from the foreign father, our law disowns the child and he/she has to follow the foreign father’s citizenship.
While celebrating the proposed, positive constitutional evolution, we must nevertheless express alarm at some accompanying regressive proposals that allegedly seek to tighten the law on nationality. Some of these proposals are inhuman, cruel, heartless and in violation of our international obligations under the UN Convention on the Rights of the Child.
These alleged proposals will augment the suffering and deprivation of many helpless, dehumanised and victimised persons and groups, namely: abandoned children, children born out of wedlock (even if the parents then marry), adopted children, children of generational undocumented families and stateless persons and their offspring whose statelessness will spiral down the generations. It is alleged that a constitutional safeguard protecting individuals from becoming stateless, instead of being augmented, is quietly going to be removed. This may create a large new class of stateless persons.
Such regressive proposals may reach the decisive point because the Malaysian system of enacting and amending laws lacks transparency and consultative processes. There is a top-down approach to all decision-making. There is the unbelievable practice of misusing the Official Secrets Act to keep all legislative proposals under wraps till the Bill is laid before Parliament.
It is alleged that a constitutional safeguard protecting individuals from becoming stateless, instead of being augmented, is quietly going to be removed. This may create a large new class of stateless persons. — File picture by Farhan Najib
In some democratic countries, the Government publishes and publicises White Papers to outline its legislative proposals to invite public feedback. Parliamentary Committees indulge in thorough consultation with those who are likely to be affected. Civic-minded citizens and experts are invited to render advice.
Democracy is not mere periodic elections. Discussion before a decision is the essential condition of a democratic polity. It is time for our nascent democracy to evolve in this direction.
It is also humbly submitted that when the Amendment Bill is submitted to the Conference of Rulers for royal assent under Article 159(5), Their Majesties should not allow this controversial Bill with provisions that were hidden from the public to get by without thorough royal scrutiny.
Besides gender inequality, the cruel treatment of illegitimate but innocent children should end. Illegitimate children derive descent solely from the mother and the Malaysian father’s status (even if confirmed biologically) does not matter. There are structural issues that prevent poor or uneducated families from meeting their kids’ registration requirements.
The Yang di-Pertuan Agong and the Conference of Rulers are our constitutional auditors and Their Majesties must remain informed of the dark underbelly of this legislation.
* Prof. Datuk Shad Saleem Faruqi is Tunku Abdul Rahman Chair at Universiti Malaya's Faculty of Law.
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