by Oreoluwa D. Babatope.

Economist Review[1] – Citizenship in Malaysia: Malaysia still discriminates against women over citizenship.

Summary

The constitution of Malaysia guarantees that fathers can pass their nationality to children born abroad, but mothers must apply for it; a process that can leave foreign-born children in limbo for years. Malaysia is one of 25 countries that restricts women from conferring their nationality to their children and is one of three countries that prevent men from passing citizenship on to their children born outside marriage. Malaysia’s constitution is one that needs attention as it currently contradicts itself. One article guarantees “no discrimination against citizens” on the basis of gender, but another discriminates against married women and single men over nationality. Advocacy outfits in Malaysia have called for constitutional amendments to settle the problem for good, as such discriminatory citizenship laws can render children stateless. Ivy Josiah, an adviser to the Malaysian Campaign for Equal Citizenship (MCEC), believes it is possible the government will make the hoped-for constitutional change by the end of next year.

Stateless, Rightless and Voiceless.   

The United Nations defines a stateless person as ‘a person who is not considered as a national by any State under the operation of its law, this means that a stateless person does not have a nationality of any country.’[2] Statelessness has also been described as a Human Rights issue, as without citizenship, stateless people have no legal protection, no right to vote, and they often lack access to education; employment; health care; registration of birth, marriage or death; and property rights. The right to be a citizen provides the path to all other rights; any rights a person is entitled to, result from possession of a nationality. This protection for citizens of a state, is effective at both a domestic and international level, as states are able to protect its nationals in the international arena under principles of International Law.[3] According to Chan,[4] “statelessness arises as a result of a deliberate act of deprivation of nationality by the state concerned, as a result of territorial change, or more frequently, as a result of a conflict of nationality law.” Oftentimes, women bear the brunt of this conflict. Now, children are also made to suffer the lack of territorial protection.

In its Global Trends 2017 report,[5] the United Nations High Commissioner for Refugees estimated that there are over ten million stateless people in the world while only about 39% of them have been formally identified by the agency. Though, quite a number of these people are rendered stateless as a result of violence, war and ongoing conflicts, there are circumstances where people become stateless due to discriminatory citizenship and nationality laws, as is the situation in Malaysia. As is often the case, the principal ‘problem’ remains the sovereign State, which considers itself, and is considered by others, as being solely competent to determine its own membership and the conditions of citizenship.[6] Should states be allowed to justify these discriminatory laws with the principle of autonomy? According to Goodwin-Gill (2019),[7] it has so far proved impossible to get States formally to accept constraints on their sovereign competence in nationality matters, even though what a State does in relation to nationality is entitled to recognition by others, only so far as it is consistent with international law. Under the cover of sovereignty and through their national laws, these states are able to negatively affect the course of an individual’s life; even from birth.

What should be done about these laws? In addition to Malaysia, countries such as Jordan, Saudi Arabia, as well as others in the Middle East and North Africa also have such citizenship laws. The current international legal frameworks which are in place have a limited impact on improving their status. Though, the United Nations, through Conventions aimed specifically at stateless persons, has tried to reduce the problem to a certain extent, statelessness still exists. The instruments are only effective in the extent to which they are signed and ratified by the various countries. Furthermore, without monitoring agencies, there is no certainty that the provisions will be implemented. More work needs to be done by the international community to compel compliance with and adherence to the instruments. There is also the vital role that could be played by advocacy. National and international non-governmental organizations could advocate for the amendment of such laws to remove the discriminatory factor. Such international attention, in form of ‘third party intervention’, could propel the country towards positive change. The aim should be to eradicate statelessness and guarantee that the right to a nationality be attached with certainty to one or another state. This is the only way such people deemed ‘stateless’ can have access to rights and a voice, in addition to the sense of national identity and security. One cannot be a citizen of the world without first having a nationality.

It is important to recognize the link between people and territory, as well as, between the individual and their own country.[8] As stated by Late Sir Hersch Lauterpacht of the International Court of Justice, “… if States claim the right to be the only link between the individual and international law, then they must not be permitted to render that link non-existent.

 

[1] Economist Article (28th Nov. 2019). Culled from https://www.economist.com/asia/2019/11/28/malaysia-still-discriminates-against-women-over-citizenship. Date accessed: 04/12/2019.

[2] The United Nations Refugee Agency (2019). Ending Statelessness. Retrieved from https://www.unhcr.org/ending-statelessness.html. Date accessed: 04/12/2019.

[3] Wakelin E. 2012. The Implications of Statelessness on the Politics of Protection. E-International Relations Students. Retrieved from https://www.e-ir.info/2012/08/06/the-implications-of-statelessness-on-the-politics-of-protection/. Date accessed: 04/12/2019.

[4] Chan, J. (1991). The right to a nationality is a human right: the current trend towards recognition, Human Rights Law Journal, vol. 12, No. 1,2.

[5] United Nations High Commissioner for Refugees (2017). Global Trends: Forced Displacement in 2017. Retrieved from https://www.unhcr.org/globaltrends2017/. Date accessed: 04/12/2019.

[6] Goodwin-Gill G. (2019, September 12). Statelessness is back (not that it ever went away). Blog of the European Journal of international Law. Retrieved from https://www.ejiltalk.org/statelessness-is-back-not-that-it-ever-went-away/. Date accessed: 05/12/2019.

[7] Ibid.

[8] Goodwin-Gill G. Op cit, 4.