Last year, Sabahan Wong Kueng Hui successfully claimed his right to be a Malaysian after fifteen years of protracted struggle against statelessness.

Two rejected citizenship applications, two-and-a-half tiers of court battles, and a multitude of legal quarrels mostly indiscernible to the everyday ear.

That was the Kafkaesque drama that unfolded in Wong’s life before the National Registration Department (NRD) was finally forced to recognise him as a Malaysian citizen.

His right to be a Malaysian eventually lay in the wit, words, and legal reasoning of learned judges and lawyers over the meaning and applicability of a Constitutional safety net to prevent statelessness: Section 1(e).

First inserted by the Malaysian parliament in 1963, Section 1 (e) plainly states that every person born in Malaysia who is not a citizen of any country will be a Malaysian citizen. Ultimately, this safety net rescued Wong from statelessness.

Today, the Home Ministry is proposing constitutional changes that would scrap this safety net altogether and eliminate an important judicial avenue for Malaysia-born stateless communities to escape statelessness–an already painstaking, if not impossible task, in Malaysia’s current legal-bureaucratic landscape.

The Ministry has also proposed changes that would abolish the citizenship rights of foundling children and children of Malaysian permanent residents, reduce the time window for childhood citizenship applications, and place foreign wives at risk of citizenship deprivation.

Not only would these changes worsen existing forms of statelessness today, they would also create new generations of stateless communities in the future.

But first, let me bring you up to speed. How did we get here?

A Regressive Ploy with a Progressive Face: How Did We Get Here?

On February 17, 2023, Law Minister Azalina Othman and Home Minister Saifuddin Nasution announced that Cabinet has agreed to amend the Federal Constitution so that Malaysian mothers married to non-Malaysians will now be able to confer citizenship automatically to their children born abroad.

This means changing the discriminatory father-only constitutional clauses that only allow the “father” to confer citizenship to overseas-born children. The “father” term will be amended to “at least one of the parents”.

As a progressive step towards gender equality, this move was welcomed by Family Frontiers, a Malaysian mothers’ rights group who has been struggling for equal citizenship rights for Malaysian women. Suri Kempe, President of Family Frontiers, called the move “heartening” while Bayan MP Sim Tze Tzin tweeted that it was a “major leap for gender equality”.

Hopefulness, relief, and a feeling of history.

“Those were the sentiments in the air, especially since Malaysia is one of only 24 countries in the world that denies women the right to confer citizenship to their children on an equal basis with men. It is a wrong that politicians and advocates alike have been trying to rectify as early as the turn of the century.”

But the February announcement did not reveal full details of the Cabinet’s upcoming proposal.

According to Malay Mail, the Cabinet said, in general terms, that they will also conduct a detailed study on other aspects of citizenship provisions that will take into account engagement with all stakeholders.

Yet, on June 14, four months later, Home Minister Saifuddin Nasution suddenly made a bombshell announcement: he was already in the midst of finalising a “comprehensive” proposal to seek royal assent from the Conference of Rulers.

The “comprehensive” proposal, it turned out, contained newly creeped-in elements that attempt to restrict citizenship rights for several groups of stateless communities.

While some preliminary discussions took place between the Home Ministry’s taskforce and a few groups like Human Rights Commission (SUHAKAM), Family Frontiers, and Development of Human Resources for Rural Areas (DHRRA), these stakeholders were largely kept in the dark about the full content and scope of the proposal.

“It goes without saying that any proposal to restrict or abrogate fundamental liberties and rights, including citizenship rights, ought not to be done in a shroud of secrecy and without due consultation,” over 100 civil society organizations and activists wrote in an open letter criticising the government’s lack of transparency, clarity, and openness.

It seemed that “all stakeholders” were not meaningfully consulted. Not least those with deep ties, work, and interactions with communities experiencing statelessness or the risk of statelessness.

Responding to these criticisms, on June 23, the Home Ministry’s taskforce pulled together a last-minute, two-hour briefing on the changes. About 20 civil society representatives were given space to raise concerns, but further dialogue or explanation over the questions and concerns raised were left wanting.

Early hopefulness and relief eventually turned into deep concern, criticism, and disappointment.

“Undoubtedly [they are] the worst amendments to citizenship laws since Merdeka (Malaysia Declaration of Independence)”, said Lawyers for Liberty Director Zaid Malek to Malaysia Now.

Now that you are up to speed, let’s look at the five contentious constitutional amendments: What do they specifically entail?

The Constitutional Amendment Creep: Five Proposed Steps Towards Statelessness in Malaysia

Removing the Safety Net for Malaysia-Born Stateless Children: Section 1(e)

“… every person born within the Federation who is not born a citizen of any country otherwise than by virtue of this paragraph.”

— Section 1(e), Part II, Second Schedule, spelling out who is a citizen by operation of the law.

As mentioned earlier in Wong Kueng Hui’s story, the first proposed major change is the amendment to Section 1(e) — a stateless safety net that eventually enabled Wong to be declared a citizen by the courts.

It plainly states that children born in Malaysia who are “not born a citizen of any country otherwise” will receive Malaysian citizenship by operation of the law.

When citizenship is classified as an “operation of the law”, it is deemed an automatic, legally-mandated, and non-discretionary right that the government needs to uphold based on a simple verification of facts. In the case that this right is violated, civil litigation can follow.

Now, the Home Ministry is proposing to change the words “operation of the law” to “by registration”. This would mean that citizenship for Malaysia-born stateless children will now become a non-automatic, application-based, and discretionary process. No longer would the courts have a say over the non-compliance of this clause, like in Wong’s case.

This also amounts to indirectly repealing the safety net since the National Registration Department (NRD) does not enforce Section 1(e) in its day-to-day citizenship-awarding operations, even though it is mandated to do so by the Constitution. Currently, the safeguard is only enforced through the courts.

First introduced in 1963, the 1(e) clause was placed in the Constitution by Act of Parliament when the ruling party at that time, led by Prime Minister Tunku Abdul Rahman and Deputy Prime Minister Tun Abdul Razak, made a set of amendments to modify and restrict jus soli citizenship provisions.

While early post-independence years saw children born in Malaya granted jus soli citizenship unconditionally, the newly introduced amendments required the newborn child to have “real genuine ties with the Federation” (in the words of Tun Abdul Razak). This was done in the name of preventing children of temporary visitors – people they called “birds of passage” – from getting citizenship. It meant that newborn children must from then on have at least one parent who is a citizen or permanent resident to qualify for citizenship by operation of the law.

At the same time, there was also awareness and debate over how introducing these new restrictive citizenship conditions could lead to childhood statelessness. It was in this context that Section 1(e) and other safeguards protecting people from statelessness were introduced in the Constitution.

“[The] modification of the principle of jus soli […] will not apply to any case, in any case, where the result would be to render the child stateless,” said Tunku Abdul Rahman during parliamentary debates in 1962.

Despite Tunku Abdul Rahman government’s original intent and inclusion of 1(e) and other safeguards, they are not proactively used by the NRD to prevent widespread statelessness in Malaysia.

To give a sense of the scale of unresolved statelessness, the Development of Human Resources for Rural Areas (DHRRA) identified 16,392 stateless persons in Peninsular Malaysia through a mapping exercise between 2016 – June 2023.

Through DHRRA’s accompaniment efforts, 7,000 of them have since been recognised as Malaysians, but 9,392 continue to be left hanging in statelessness.

This is only the tip of the iceberg. The scale of statelessness could be larger as DHRRA did not register stateless Orang Asli communities or those in the Borneo side of Malaysia due to resource constraints.

Against the backdrop of protracted government reluctance to use 1(e) or other means to resolve statelessness, Sabah-born Wong Kueng Hui was forced to take his citizenship case to the courts.

Born out-of-wedlock to a Malaysian Sarawakian father and a Bugis-descent mother suspected to be Indonesian, Wong was not automatically eligible for Malaysian citizenship despite having lived all his life in Malaysia.

His case was also complicated by how children born out of wedlock to Malaysian fathers and non-Malaysian mothers are deemed as “illegitimate” children who have to follow their mothers’ citizenship.

Malaysia is one of only two countries in the world that discriminates against unmarried men by depriving them of the ability to confer citizenship.

At the age of 12, Wong applied for citizenship at the NRD only to later be rejected twice. The government did not automatically evoke 1(e) in his citizenship determination process even though he had no citizenship from any country over those years. It was only later, when he fought his way up to the Court of Appeal against the Home Ministry’s lawyers, that he was declared as a citizen by operation of the law on the basis of Section 1(e).

He is not the only one who had to resort to the courts to fight for citizenship in recent years.

“There is a judicial trend where our Malaysian courts will recognise these impacted individuals as citizens under Section 1(e) as long as they are born in Malaysia and did not acquire foreign citizenship,” Jasmine Wong, the Vice President of the Association of Women Lawyers (AWL), told New Naratif about the protective-nature of the judicial pathway for stateless citizens. She has handled more than fifty 1(e) judicial cases in the past two years.

“If Section 1(e) is repealed, statelessness in Malaysia will not be eradicated, it will be exacerbated,” Jasmine Wong added.

Abolishing the Right to Citizenship for Abandoned Children: Section 19(b)

“…any new born child found exposed in any place shall be presumed, until the contrary is shown, to have been born there of a mother permanently resident there…”

— Section 19(b) of Part III of the Second Schedule, providing additional guidance of who is a citizen by operation of the law.

Section 19(b) states that newborn children who are found exposed in any place—in other words, abandoned children or foundlings—would be presumed to be born of a permanent resident mother unless proven otherwise. Under the Constitution, by extension, children of permanent resident mothers are also citizens by operation of the law.

Like the regressive move on Section 1(e), the Home Ministry is proposing to change the words “operation of the law” to “by registration”. It will similarly make foundling citizenship a matter of ministerial discretion bereft of court oversight.

At stake is the automatic citizenship right of stateless abandoned children who were deserted, trafficked, or sold.

Unfortunately, we can’t accurately estimate the number of stateless foundlings in Malaysia as the government has zero data on stateless persons, but we know that in Malaysia, on average, one baby is abandoned every three days.

Over 1,250 babies were reportedly deserted between 2010 – 2022, commonly left in baby hatches or in areas like drains, toilets, and garbage disposals.

The Women, Community, and Family Development Ministry reported 1,726 children as of December 31, 2021, in its 15 welfare homes, but we do not know how many of them are stateless foundlings. Moreover, not all foundlings grow up in welfare homes, as some of them could be living stateless under adoptive Malaysian parents.

Instead of restoring these traumatically stolen childhoods, the Section 19(b) change takes away the fundamental right of abandoned children to be a citizen–the right to have rights that also facilitates basic access to education, healthcare, and housing.

“Rather than heal, the proposal cruelly turns the knife in the wounds of these children.”

The proposed change also nullifies a protection-affirming landmark decision made by the Federal Court in 2021. Overseeing a case called CCH and Anor, the panel of five Federal Court judges unanimously upheld Section 19(b) as enshrining the rights of foundlings to citizenship.

The case concerns a baby born in 2004 in Cheras, Malaysia. Given the pseudonym CYM at the courts, he was abandoned at childbirth in a hospital, and his biological parents’ identities were unknown. Upon hearing about CYM, two Malaysian parents decided to adopt him as their own.

But when CYM turned 12 years old, he was refused citizenship—a blue national identification card or a MyKad—by the National Registration Department (NRD) in large part because he was not seen as biologically related to his Malaysian adoptive parents.

Later, the NRD also issued CYM two new birth certificates, which changed his listed citizenship from “Malaysian” to “yet to be determined” to finally “non-citizen”.

Against that backdrop, CYM’s adoptive parents took the NRD to all three levels of court—the High Court, Court of Appeal, and the Federal Court—to argue that CYM is a Malaysian by operation of the law.

While CYM’s parents initially argued using Section 1(e), the Federal Court judges unanimously ruled that CYM was a Malaysian citizen by operation of the law based on Section 19(b).

They saw CYM as being “found exposed”, as worded in 19(b), which they ruled to mean “children abandoned at the place of birth by the birth mother whose identity is unknown”.

This was a landmark decision because for the first time, the judges used 19(b) to protect and uphold the automatic right of foundlings to citizenship. Unfortunately, not only has the Home Ministry yet to incorporate the practice of granting foundlings automatic citizenship in NRD’s daily practices, but through the switch from “operation of the law” to “registration”, the Ministry’s current proposal will unravel the hard-won Federal Court judgement and reverse the right to citizenship of foundlings like CYM altogether.

Abolishing the Right to Citizenship for Children of Permanent Residents: Section 1(a)

“Every person born within the Federation of whose parents one at least is at the time of the birth either a citizen or permanently resident in the Federation.”

— Section 1(a), Part II, Second Schedule, detailing who is a citizen by operation of the law.

Under the Constitution, Malaysian-born children with at least one Malaysian Permanent Resident (PR) parent are citizens by operation of the law.

The Home Ministry now intends to delete the words “permanently resident” to take away PR children’s automatic right to citizenship. Like the groups who would be affected by the amendments to 1(e) and 19(b), this means that their only pathway to citizenship is through Ministerial discretion, again.

While this amendment would affect PR children from a variety of socioeconomic and cultural background, it raises red flags, particularly for the next generation of longstanding stateless residents who have been living in Malaysia since before 1957 as well as indigenous communities.

In Peninsular Malaysia, these would be mainly children of Tamil-Indian communities who grew up in remote and rural plantations, but they could also be communities of Chinese and Siamese descent. In Sabah and Sarawak, this change would affect indigenous communities or communities of mixed descent who have grown up in the context of Borneo’s rich and complex history of maritime movement, mixed marriages, and intercultural exchange.

“For reasons such as remoteness, lack of awareness, or poverty, these pre-independence or pre-Malaysia communities did not register for certificates of birth or marriages.”

In Peninsular Malaysia, the DHRRA is currently assisting about 1,000 pre-Merdeka stateless individuals to obtain citizenship.

Instead of citizenship, Malaysian authorities have historically granted some of these communities PR status. With this amendment, the government is now taking away their children’s automatic right to be citizens–a right that saves them from further intergenerational statelessness.

This move is also a sleight of hand that indirectly strips the right of abandoned babies to automatic citizenship too, who, as mentioned previously, should be presumed to be children of PR mothers unless proven otherwise as per Section 19(b).

Reducing the Time Window for Childhood Citizenship Applications: Article 15A

“…the Federal Government may, in such special circumstances as it thinks fit, cause any person under the age of twenty-one years to be registered as a citizen.”

— Article 15A, granting broad discretionary powers to the Home Ministry to confer citizenship to those below the age of 21.

In current practice, most stateless children only can apply for citizenship through Article 15A. Only those below the age of 21 can go through this route.

The proposal is now to change the age bracket from “twenty-one years” to “eighteen years”.

This means that once they turn 18, they would need to apply for naturalisation instead, another registration-based citizenship pathway, but that has historically been out of reach for stateless communities because of its strict criteria and limited use for a privileged few. In today’s practice, a stateless individual must also first obtain a Home Ministry approval letter before the National Registration Department would process their naturalisation application–an added and elusive discretionary barrier to overcome altogether.

Thus, while the first three amendments funnel stateless communities into the discretionary citizenship route, this fourth move then squeezes them further by giving them less time to go through an already long and tedious citizenship application process.

It takes an average of 3-6 years for 15A applicants to receive a Home Ministry application decision, who are also unlikely to be successful on their first try. After that, they would need to repeat the whole cycle again.

A double or triple setback, this move risks childhood statelessness being carried forward to adulthood, especially for those whose parents are illiterate, or those who lack timely awareness of the application procedure.

Placing Foreign Wives at Risk of Citizenship Deprivation: Article 26(2)

“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 the marriage.”

— Article 26(2), setting out the conditions a foreign wife may be deprived of citizenship.

The final amendment in question is the Home Ministry’s move to make it even easier to strip citizenship of foreign wives.

At present, one of the criteria for citizenship-stripping of foreign wives is if their marriage is dissolved within two years of their date of marriage. This was put in place to prevent what has been called “marriage of conveniences” – transactional marriages for the purposes of citizenship acquisition.

Now, the Home Ministry is proposing to grant themselves the power to deprive a foreign wife [1] of citizenship should her marriage be dissolved within two years of their date of obtaining citizenship.

Hence, if a foreign wife’s marriage collapses after two years of obtaining Malaysian citizenship, which is later than one’s date of marriage, the government can now deprive her of her one and only citizenship–since Malaysians cannot hold dual citizenship.

“It makes the foreign spouse extremely vulnerable to potential violence and abuse without the ability to extricate herself from the situation without now risking her citizenship,” wrote Family Frontiers in an open letter about the danger of the move.

Put differently, the increased time requirement creates a new power dynamic between the Malaysian husband and his foreign wife. With citizenship on the line, the foreign wife would now face prolonged external pressure to keep her marriage intact, even in situations of abuse, coercive control, or intimate partner violence.

What is Wrong with the Ministry’s Rationale?

Rather than resolve statelessness, these five amendments perpetuate and produce statelessness in Malaysia.

So why is the Home Ministry pushing for it?

While underlying intentions are anyone’s guess, a twin set of discourses seem to be playing a role in the push: population control and national security.

According to New Straits Times, the Home Minister revealed one rationale behind the push was to control the population in Sabah. He said that under current National Security Council practice, residents who have lived in Sabah could be granted permanent residency after living in the country for 15 – 30 years. This also means that their children will be granted automatic citizenship.

“This has contributed to Sabah’s population, and we are facing difficulties until now. There are too many people, so we want such practices to be stopped,” he went on to explain.

The assumption then seems to be that controlling the number of PR children receiving citizenship would lead to a population drop.

But this assumption is flawed because anyone who has already lived in the country for at least 15 – 30 years would, by definition, have deep and growing roots, resources, or relationships in Malaysia.

With a growing sense of home and attachment to Malaysia, these families would likely not depart Malaysia unless they are forcibly pushed out. What then changes with this policy is simply their terms of stay–whether they stay documented or undocumented –rather than population numbers themselves. Even if cruel deportation mechanisms later take place to send these homegrown children and families elsewhere, where would “elsewhere” be when your friends, families, and livelihoods have been in Malaysia all these years?

The Home Ministry’s taskforce has also framed the issue as a matter of national security.

While security is important, tightening already strict citizenship laws would only funnel people into statelessness and dangerous situations of vulnerability, invisibility, and marginality. Far from creating a secure national space, these moves would backfire and force stateless communities to live out of sight and under the radar, especially stateless children, who would then become more vulnerable to human traffickers, criminal gangs, and dangerous situations.

At the heart of these five changes is also the quest to expand the Home Minister’s discretionary power to decide who can be included and excluded from the Malaysian citizenry.

While Home Minister Saifuddin Nasution seems adamant to speed up citizenship decisions at his desk, which is commendable, expanding his Ministry’s discretionary power while sealing off court oversight can be detrimental in the long-run.

Doing so gambles with the lives of the many by putting them at the mercy of an ever-changing few. Even if a Home Minister is willing to protect stateless children today, there is no guarantee that Home Ministers would share the same values, political will, or perspectives tomorrow. With court oversight, at the very least, present and future Home Ministry abuses, overreach, or mistakes can be rectified, checked, and balanced.

Furthermore, while the speeding up of application decisions is a welcomed stop-gap measure, the move is only symptomatic of many deep-rooted issues that have plagued the discretionary citizenship application process for decades.

An “otherworldly level of persistence” that is “far beyond the burden that any human being should bear” was how SUHAKAM’s researchers described the discretional citizenship process in a recent 2023 report on statelessness.

“Drawing from lived experiences of stateless communities, they found the discretionary process to be ambiguous, opaque, inaccessible, confusing, corrupt, ever-changing, tedious, unreasonable, and plagued with hidden costs.”

It was discretion that forced a stateless individual into a thirty-year citizenship application nightmare.

“I’ve been trying since 1988,” a 56-year-old stateless individual told the researchers. “It’s so difficult for me. Before this, people exploited my money saying that they would help me to solve this issue like RM 600 but they didn’t actually help me.”

It was also discretion during the uncertain citizenship application period that led to physical, psychological, and economic harm on stateless communities. Among them were things like constant fear and anxiety, delays in schooling, increased risk of being trafficked and smuggled, risk of getting deported while at school, and inability to open a bank account.

Several stateless applicants, the researchers say, were also suicidal.

“No, I actually don’t know what to do,” said a stateless adult who was abandoned at birth. “I even thought about going to [the] Royal Palace and see my Sultan. I want to tell him that his citizens are stateless. This is bringing a lot of depression to me.”

“But, since I’m a Muslim and we believe to God, so whatever happens [even if it doesn’t go well] I’ll just take it positively. I cannot think negatively then I’ll ended up committing suicide.”

Rather than rely on the ebbs and flows of discretion, we need to collectively build a citizenship granting system that is just, speedy, predictable, transparent, and responsive to the lives and challenges of Malaysia-born stateless communities.

What Can Be Democratically Done to Mitigate Statelessness in Malaysia?

At the time of writing, the government has said that they will be seeking royal agreement from the Conference of Rulers after the state elections. This is in line with the Constitution’s Article 159(4) and (5) mandate that amendments to a small group of constitutional articles, such as those that touch on citizenship rights, require royal agreement, alongside the consent of Sabah and Sarawak’s Chief Ministers. If the proposal receives assent, only then will it be tabled in parliament.

I spoke to Maha Balakrishnan, a parliamentary process expert, about what can be done. At the heart of her advice was for the public and for civil society to continue building debate and deliberation spaces around the proposed amendments. So long as these proposals are not yet passed as laws, they are not set in stone.

From our conversation, it seems that in the interim or after the bill is tabled, these steps could be relevant to take:

• Urge the government to separate the proposed amendments into two bills. The first would comprise the amendment to allow Malaysian mothers married to non-Malaysians to confer citizenship automatically to their children born abroad. The second would include the other proposed set of controversial amendments. This allows more time for all – the Home Ministry’s taskforce, civil society organisations, and the broader public – to debate and deliberate on changes that could have far-reaching and generational consequences. This step, of course, would only be relevant insofar as the proposal has yet to receive consent from the Conference of Rulers.
• Speak to elected representatives from all political parties about the issue. Given state election season, the technical complexities of the proposed changes, and the speed and lack of transparency of the proposal process, it is likely that many elected representatives have not grasped the content and gravity of the proposed changes. The lives of children and stateless communities should not be a partisan matter.
• Engage and raise concerns to relevant Parliamentary Special Select Committees (PSSCs). A key part of the parliamentary process, PSSCs are committees of bipartisan Members of Parliament who have the power to ask tough questions, ensure full and comprehensive discussion over proposed laws, take in expert and community opinions, and put forward changes to the bill(s). The two most relevant committees would be the Committee on Human Rights, Election, and Institutional Reform led by MP William Leong and the Committee on Women, Children and Community Development led by MP Yeo Bee Yin.

In light of the lack of meaningful pre-engagement and the hastiness of the proposals, there also needs to be deeper policy and programmatic discussions around how we do democracy, so that we can avoid the repeat of such a constitutional creep in the future. It is neither just nor fair that such far-reaching decisions that affect the many, especially marginalised groups like stateless communities, are made by the few.

To end with food for thought, Professor Shad Saleem Faruqi, a constitutional expert, floated the idea in a Malay Mail op-ed that such far-reaching proposals, rather than be presented to the Conference of Rulers or Parliament so early on, can first be published as a White Paper for thorough public scrutiny. This would enable civic-minded citizens and experts to chime in while Parliamentary Committees engage in thorough consultation with those likely to be affected.

“Democracy is not mere periodic elections,” he wrote. “Discussion before a decision is the essential condition of a democratic polity.”

“It is time for our nascent democracy to evolve in this direction.”

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Joshua Low

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