[COLUMNIST] Alarming risks faced by the homegrown stateless community in Malaysia

WHILE the current Home Minister, Datuk Seri Saifuddin Nasution Ismail is committed to resolving the citizenship issue in Malaysia, the identity dilemma of the homegrown stateless community, given its size, the nature of the challenges faced and the implications to the nation, shall no longer be overlooked.

Earlier this year, the Home Minister stated that his ministry had received an estimation of 150,000 citizenship applications and is expected to process at least 10,000 applications this year.

To elucidate, the obtainment of Malaysian citizenship is accorded by the Operation of Law, under (Article 14) and the application of citizenship through registration (under Article 15, 15A and 16) or naturalisation (Article 19) under the Federal Constitution of Malaysia.

As a matter of fact, anyone who does not possess a nationality of any country is regarded as “stateless”.

It is found that one in three people in Sabah fails to obtain their Malaysian citizenship, which substantially restricts their access to opportunities and civil rights (see “Documenting the Undocumented: The Struggle for a Legal Identity”, New Naratif, April 12, 2023).

Relatedly, a study by Rodziana Mohamed Razali indicated that in contrast to the 2,316,963 (72.3%) Malaysians in Sabah, the state hosted 889,779 (27.7%) non-citizens as of 2010 (see “Addressing Statelessness in Malaysia: New Hope and Remaining Challenges”, Institute for Statelessness Inclusion, 2017).

While “statelessness” has been given attention in Malaysia, there has been some gap in attention accorded to the homegrown stateless community in Malaysia. Often, they are regarded or mistaken for refugees, asylum seekers or undocumented migrants.

It is crucial to distinguish between these two groups, as the ;

I. “Homegrown stateless” is an individual born and breed in a specific country but not considered as a national by the state under the operation of its law (de jure stateless)

II. Undocumented migrants, refugees, etc. are nationals of different countries, who are unable to seek protection within their home country, who flee to neighbouring countries (de facto stateless)

Most homegrown stateless individuals in Malaysia are from East Malaysia (Sabahan and Sarawakians), Tamil Indians (from estates and plantations), some from the Chinese community and the indigenous (orang Asli) community in Malaysia.

According to a recent report by Malaysia's Human Rights Commission (SUHAKAM), there are several reasons why a person falls under the category of stateless in Malaysia (see “Human rights and statelessness in peninsular Malaysia”, SUHAKAM, 2023):

I. Individuals with a long-standing residence since pre-independence and their descendants (mainly from the Chinese and Indian communities)

II. Individuals who lack legal documentation (e.g. birth certificate)

III. Abandoned and orphaned children who were born and raised in Malaysia.

IV. Children born out of wedlock or illegitimate children

V. Parents who failed to register the birth of their children at birth.

The status of 'statelessness' exposes this minority community to oppression, including infringement of basic human rights, restricted liberty of movement, forced displacement, restriction to land ownership, limited job opportunities also lack of access to education and healthcare services.

Apart from that, they are also vulnerable to arbitrary detention.

A study by Mary Anne et al. involving Filipino-descent children in Sabah indicates that more than 60% of respondents (children) expressed discomfort for a number of reasons, including worry about being detained and a lack of identity (see “Children at-risk of statelessness and their constraints to citizenship, SHAPE-SEA, June 2019).

In addition, due to the lack of legal rights, this marginalised community falls further into the country's lower-income economic group (B40).

Frequently, the dilemma of this community is only looked at and resolved when the issue is raised on social media. Why the long wait?

Even worse, many families in this community are vulnerable to “generational statelessness” where statelessness runs for generations.

For example, research by the United Nations High Commissioner for Refugees (UNHCR) identified a sizable Indian Tamil population within which certain households have resided in Malaysia for many generations without any documents attesting to their citizenship or connection to the nation. During a registration effort, they discovered at least 12,400 stateless individuals of Indian-Tamil descendance in Malaysia.

As reported by local media outlet Malaymail just recently, a family has filed a lawsuit against the government for withholding citizenship to three generations of the family despite having roots in Malaysia going back five generations (see “A Perak family’s suffering: three generations, all stateless, go to court to be Malaysians”, Malaymail, June 17, 2023).

Impact of “statelessness” on children

In the absence of a legal identity, children receive very little or no access to healthcare services and education — the two elements that are vital for a child's development and future well-being.

Children from the stateless community are not eligible for reduced fees at a polyclinic, free vaccinations for children, or childcare subsidies.

Considering most stateless families in Malaysia are from the low-income group, they are unable to spend on health, savings insurance schemes, or private education for these children.

In terms of education, schools such as Sekolah Bimbingan Jalinan Kasih (SBJK) and the Professional Circular 1/2009 policy have aided in the fundamental education of stateless children. The Professional Circular 1/2009 policy, however, has a flaw in that it only enables undocumented children with at least one Malaysian citizen parent to enrol in public or government-aided schools.

On a positive note, just recently the Education Minister, Fadhlina Sidek emphasised that the ministry is working on the process of schooling for undocumented children.

Comparatively, in Thailand primary education is compulsory regardless of the status of citizenship and children have the right to receive 12 years of free access to education. In addition, school fees, subsidies for school uniforms, textbooks and other school needs are also sponsored by the Thai Government (see “a legal analysis of stateless children and their rights to education in Malaysia: a comparative study with Thailand”, International Journal of Academic Research in Progressive Education and Development, 2022).

Likewise, Malaysian policymakers should focus on a holistic and inclusive approach, making primary and secondary education compulsory for all children and providing the required assistance to all students regardless of their national status.

As the right to education is denied, these children are missing on opportunities such as better standard of living in terms of higher income and an overall healthier lifestyle, and this is a potential human capital loss for the nation – even if they are part of it, many will be missing out on access to medical care, and formal job opportunity as people without citizenship are often discriminated and stigmatised in the community.

In the same spirit, it is recommended for the Ministry of Health (MOH) to focus on provisions of universal healthcare services for the homegrown stateless community in Malaysia. In particular, the need to focus on the health and well-being of children should be emphasised by the government.

Hence, the government should consider establishing systematic and efficient approaches and policies for identifying and addressing statelessness so that those individuals would not be left in limbo indefinitely.

Following are the proposed policy recommendations by EMIR Research:

1. Earmarking a central, integrated, and systematic procedure and database on citizenship, passes and visas in Malaysia.

So far, various identity registration documents have been used to register stateless and undocumented migrants and especially in East Malaysia.

Documents such as the IMM13, Kad Burung-Burung, Sijil Banci, Pas Sementara Sarawak (DSITKS) and the Pas Sementara Sabah are some of examples. Instead of having different documents for immigrants from different countries, it is recommended that the state governments of East Malaysia standardize and centralize the identity registration documents.

Having a centralized database simplifies and smoothens the application process for both citizenship and other permit passes in the country and therefore can specifically assist in identifying stateless individuals for the purpose of targeted intervention programmes.

2. Expand the existing Malaysia’s Mobile Court programme to Peninsular Malaysia

In East Malaysia, since courthouses are only located in big towns, and the less fortunate public cannot afford to travel to court, the then Chief Judge of Sabah and Sarawak,Tan Sri Richard Malanjum took the initiative to hold hearings in the districts rather than at the courthouse for the community.

Cases heard by the mobile court include criminal charges such as illegal logging, cases related to citizenship, late registration of deaths and births, marriage, family-related, and inheritance concerns.

For instance, the Sabah mobile court has now served over 66 locations in Sabah thanks to this initiative, and it is spreading throughout the area.

It is recommended for Peninsular Malaysia to adopt a similar approach in focusing on a highly saturated homegrown stateless population, specifically in urban poor, rural and remote areas of west Malaysia.

3. Government to enhance the pre-existing policies and regulations in the aspect of education.

Firstly, amendment on Article 12 of the Federal Constitution of Malaysia should be considered by substituting the word “citizen” for “all residing in Malaysia regardless of their nationality”.

Simultaneously, it is recommended for the government to ratify Article 28 (1) (a) of the United Nations Convention on the Rights of the Child (CRC).

Article 28 (1) (a) is as follows:

Make primary education compulsory and available free to all.

Given that the MOE is actively trying to include undocumented children in Malaysian education, it is now more vital than ever for the government to first ratify the reserved subsection of the article.

4. Finally, members of parliament (MPs) should play an active role in providing on-ground assistance and in advocating, at the parliament level, to eradicate homegrown statelessness.

Despite the fact that this marginalised population lacks political rights, MPs are nonetheless accountable for ensuring the welfare and well-being of their constituency as the chosen representatives of the people.

In the final analysis, apart from being a social concern, persistent ignorance on this community has an impact on the economy’s instability, as it is often accompanied by unemployment and poverty, which pressures this population and results in contributors of the low-income and below-poverty line community in Malaysia.

Furthermore, it gravely jeopardises Malaysia's capacity to attain the goal 16 (target 9) of the Sustainable Development Goals (SDG), that is to provide legal identity for all by 2030.

In this case, granting citizenship to stateless persons has a vast potential to improve the nation’s gross domestic product (GDP) output, while protecting the rights and well-being of the marginalised community.

In conclusion, in order to steer clear of a chicken-and-egg scenario, it is important for the state and federal governments to progressively resolve the legal status of Malaysia's native stateless population.

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Jachintha Joyce is Research Assistant at EMIR Research, an independent think tank focused on strategic policy recommendations based on rigorous research.

** The views and opinions expressed in this article are those of the author(s) and do not necessarily reflect the position of Astro AWANI.