The Sunday Star
by Rouwen Lin
CITIZENSHIP is a man’s basic right, for it is nothing less than the right to have rights,” wrote United States Supreme Court Chief Justice Earl Warren in 1958. Despite this lofty pronouncement from one of America’s most important and influential jurists, statelessness is a growing problem in our modern world.
The United Nations High Commissioner for Refugees (UNHCR) believes that there may be as many as 15 million stateless people in at least 49 countries in the world. In Malaysia alone, there are an estimated 30,000 stateless persons who do not have access to education and healthcare and are unable to be legally employed. They do not have the right to hold travel documents and are barred from voting and running for political office.
Stateless persons struggle with numerous limitations on a daily basis, but perhaps the most horrifying is the thought of being caught by the authorities. Should this happen, they will be treated as illegal immigrants.
In effect, this means that they are liable to a fine not exceeding RM10,000 or imprisonment not exceeding five years, or both, under Section 6(3) of the Immigration Act 1959/63. They are also liable to whipping of not more than six strokes.
Bar Council member Roger Tan points out that under Part V of the Act, such a person can also be detained or deported. However, in practice, detention is more likely.
“They will continue to be detained because, if they are stateless, which country should they be deported to?” Tan says.
Different countries offer stateless persons varying degrees of protection, depending on their laws and policies. However, Malaysia has no effective mechanism to protect stateless persons, he adds. “At an international level, the UNHCR is mandated to help and protect stateless persons. But Malaysia is not a signatory to two important conventions - the 1954 Convention relating to the Status of Stateless Persons and the 1961 Convention on the Reduction of Statelessness.
“We are signatories to the Convention on the Rights of the Child 1989 (CRC) and the Convention on the Elimination of All Forms of Discrimination Against Women 1979 (Cedaw). But implementation will remain sketchy unless these international obligations are incorporated into domestic laws.”
Tan says although there are numerous reasons for statelessness (see In no man’s land), most people without citizenship in Malaysia fall under the category of those born in the country but who failed to register their births under Malaysian law,
“The majority of stateless persons in the country come from the Indian community and the failure to register is often due to illiteracy, poverty or social stigma,” he adds.
Yayasan Strategik Social (YSS) assistant director Karrupiah Palaniandy explains that most of the stateless persons from the Indian community find themselves in this quandary because they are not registered with the National Registration Department (NRD).
“Many cases of non-registration happen because parents are not fully aware of the repercussions of growing up without a birth certificate. Although there are some parents who (unequivocally) do not bother about registering their children, there are others who attempt to, but they give up when complications arise,” he says.
As these parents do not grasp the magnitude of the problems this will lead to, there seems no necessity to get it done. Under these circumstances, the hassle associated with attempting to register their children is sufficient justification to abort the mission.
YSS assistant director Vanita Ramany elaborates: “For example, when a child is born out of wedlock, his parents may find it too inconvenient or are too embarrassed to go through the registration. There may be additional paperwork and questions to deal with. It seems easier then to leave the child stateless.
“Also, when a marriage is not legally registered – as in the case of a traditional ceremonial wedding or a second relationship while the first legally-registered marriage still exists – the child can be registered as a Malaysian citizen, but his father’s name will not be stated on the birth certificate.
“In such a case, the parents may simply not register the child because they feel it is shameful to not have his father’s name on the document. The child will then grow up stateless,” Vanita says.
She agrees that while parental negligence is a factor that cannot be overlooked, looking for a scapegoat to pin the blame on will not help put things right.
“What we need here is action. Pointing fingers will not help,” she says, lamenting that the consequences of not registering a child are usually only felt several years down the road.
In turn, this delay often makes the problem of non-registration more difficult to rectify.
The NRD lists on their website the documents required to be submitted with delayed registration of birth (considered as such if registration is made more that 42 days after birth). The parents’ marriage certificate is included as one of them (see www.jpn.gov.my/BI/2_1_3_daftar_lewat.php).
“As it stands now, I’ve seen so many cases in which they insist that the mother has to come forward to vouch for the child if the relevant documents required for delayed registration are not in order,” says Vanita.
What if the mother is no longer alive by then, she asks. “I think the government has to make changes to the current policy as there are lots of such cases.
“My recommendation is that the child should be given citizenship as long as there is a letter from the area penghulu (headman) or from any political party vouching that he has grown up in the country for so many years without a criminal record.
For children in orphanages without documents, the government should consider giving them at least PR status, she suggests.
“At the end of the day, they are going to grow up here. With no education and no job, they end up in illegal activities. What’s going to happen to them, or to the country, then?” she asks.
Often, all it takes is one instance of non-registration of birth - particularly, but not limited to the cases that remain unresolved - to render the subsequent generations stateless.
Given the sheer number of cases and the nature of the problem, the spotlight in Malaysia has been on the Indian community. But this problem also affects thousands of indigenous people in Sabah and Sarawak, particularly those residing in the interiors, who have no citizenship papers.
Adrian Lasimbang, president of the Indigenous People Network of Malaysia (JOAS), says that without such documents, these people cannot stake a claim to their land. They are, in effect, stateless on their own land. Additionally, farmers who are unable to produce documentation are not eligible for subsidy or any form of assistance from the government.
It can be said that the indigenous people are worse off than illegal immigrants in certain aspects. As Lasimbang put it, indignantly, “they do not even have access to healthcare! Illegal immigrants are better off in this regard because they are at least entitled to healthcare under IMM-13 (a pass issued by the Immigration Department which legalises the stay of holders in the country and allows them to gain lawful employment and access to education and healthcare).
“It is also very difficult for children without documents to go to school. Those in school are forced to stop early because if you don’t have an identification card (IC) you cannot sit for the public exams (the first of which, the UPSR, is taken in Primary Six), what more go to university. “Everyone says there are lots of dropouts in rural schools due to the lack of technology or infrastructure. But I think the other factor that accounts for the high dropout rate is the lack of citizenship documents. And what happens to these people? They have to go back to the kampung to tanam jagung (plant corn) – that is the istilah (phrase) we use here.
“I call this the snowball effect because generation after generation will suffer from the same thing. Their children will be without documents, too. This is what is happening now. It’s a big problem and I think the NRD should be serious about finding a solution to this or the problem will remain,” Lasimbang says. But this is easier said than done, and he makes a reference to a syndicate in Sabah a few years back that used faked national certificates to successfully obtain Malaysian ICs for thousands of illegal immigrants, effectively turning them into citizens overnight.
“They only came to Malaysia a few years ago, and now they are all bumiputras, complete with privileges. I know of people in my neighbourhood who hold an IC even though we all know that they are not genuine citizens,” Lasimbang says.
“Since that syndicate (was exposed), NRD has stopped recognising the native certificate issued by the native chief as a supporting document for citizenship application.
“There must be other means of checking whether someone is a citizen, but the problem is that the NRD works autonomously without any check and balance from the state and no coordination with any department.”
His concerns are valid: Between 1970 and 2000, Sabah’s population increased by 285%, against Sarawak’s 106% and Peninsular Malaysia’s 113%, leading to a call for a Royal Commission of Inquiry on ICs issued in Sabah.
Even now, entire groups of Indonesian immigrants can obtain Malaysian citizenship, allege NGOs familiar with the situation.
“I know of entire kampungs of Indonesian immigrants who have ICs! Why are they able to get citizenship so readily when people born in the country have their citizenship applications rejected repeatedly?” Vanita asks. Overall, it appears easier for children of Indonesians who hold a permanent resident (PR) status to become citizens of Malaysia, Tan observes.
“We really do not know how many thousands or hundreds of thousands of Indonesians have been made PRs in this country,” he says, pointing out that Article 14(1)(b) and section 1(a) of Part II of the Second Schedule of the Constitution state that persons born in Malaysia will be deemed a citizen if at least one parent is, at the time of birth, a citizen or a permanent resident.
Need for coordination
The consequence of Sabah’s unusual population demographics has yet to be felt in Peninsular Malaysia, but Lasimbang predicts that in a decade or two, the authorities will be forced to faced the music when the number of overnight citizens there becomes a significant issue.
“I’ve noticed that they’re afraid to stay in Sabah because we all know by now that they are immigrants. They are afraid that if anything happens, they will have a problem, so they go over to semenanjung (the peninsula) to work,” says Lasimbang.
Commenting that there seems to be a lack of coordination between the federal and the governments, Lasimbang suggests that the locals should be appointed to deal with the issue of who gets citizenship, and how. At present, officals from Peninsular Malaysia hold all the top posts.
“There should be a special commission in every district that includes the district officers and native chief because who else knows more about this than them?
“NRD, at least at the district level, should have participation from the local leaders, who understand the situation and know everybody living in the district. If an illegal immigrant attempts to apply for citizenship, it will be easy for them to check his claim of being from a particular kampung.”
Lasimbang adds that it has been suggested that the indigenous people should give birth in hospitals instead of going to traditional midwives. This will prevent further generations from being rendered stateless as those born in hospitals can be registered much more easily.
But, as with many a suggestion, there is a hitch: the villages are located so deep in the interior that this is not a very viable option.
“How can you expect them to afford to travel (out) a week before the baby is due and stay in the hospital in town?”
To its credit, the NRD has been attempting to resolve the issue of late birth registration or non-registration among the rural folks by deploying mobile registration units into the interior. But such efforts fall short.
Explains Lasimbang: “NRD officers come in their vehicle, take thumb-prints and photos and so on, and the people are given a slip with their name and a reference number. NRD then expects them to travel to its nearest office with supporting documents before the application can be processed. The problem here is that it sometimes takes them days to travel. It’s not something they do every day, the way we hop into a car and drive to town.
“Although I do commend the NRD’s efforts in getting these people registered through the programme, it will continue to be ineffective if there are no follow-up visits. It’s not just about going there and taking photos and putting the burden on the community to do the follow-up.
“I believe the NRD has the resources to return in a few months for the required documents and to inform the people of the outcome of their application.
“How can the country progress if your citizens are not educated and do not even have access to good healthcare? They talk about negara maju and vision 2020 and your citizens don’t even have citizenship documents? Malulah,” Lasimbang says.
> Several attempts were made to get comments from the NRD. But the only response we received from department public relations officer Jainisah Mohd Noor via e-mail was: ‘The NRD regrets to inform you that the NRD could not state any comment regarding the inquiries made.’
Many cases pending
SANDRA Monteiro, an adopted child, had her birth certificate confiscated when she applied for an identity card at 12 because the word “adopted” was missing from the document. She was issued a temporary identity chit and thereafter, a green card (which denoted permanent resident status). When the government cancelled all green cards, she was made stateless and has remained so for over a decade now.
ABDUL Rahim Ariff was born in Kubang Kerian, Kelantan, a few months before Merdeka, but only received his citizenship at the age of 52, after being deemed “a genuine case” following “an extensive interview and screening for several years”.
The problem was that his name was not listed on his birth certificate when it was issued.
When Abdul Rahim received his citizenship in January this year, the father of six said: “Now I am legally a Malaysian. It is a wonderful feeling as I had been living here my entire life.”
YONG Lee Hua @ Piang Lin (pic), a 78-year-old Sino-Kadazan native in Sabah had her identification card (IC) stolen. She applied for a replacement but was issued a red IC (denoting PR status) instead. The National Registration Department (NRD) officer informed her that this was the usual procedure for senior citizens who had lost their ICs.
When Yong returned to the NRD pursue hre case, she was told to put in an application for Malaysian citizenship. Pending that, her bank accounts were frozen, but she was able to vote in last year’s March 8 election by using her driving licence as identification.
Interestingly, while her records on the polling list were still intact, that at the Immigration Department had disappeared. It took almost two years, during which the media highlighted her plight, before Yong got her citizenship back.
TWO Indian brothers had their IC applications denied in 1999 because a “technical error” in their birth certificates showed that they were born to the same parents just one month apart. In May 2008, they had their citizenship “restored” after the Malaysian government corrected the “technical error”.
T. GOMATHY had to stop school when she was 12 because her birth certificate identified her as a boy. The mistake was detected when the Malaysian Indian went to apply for her IC. The authorities wanted her biological mother to testify, but she had disappeared when Gomathy was 11 and could not be contacted.
Gomathy spent the next six years appealing to the NRD to have her records changed, but in vain. She was finally issued a new certificate at a camp set up under the Birth Certificate Registration Programme organised by the Ministry of Women, Family and Community Development last July.
LAM Khoi Tong, 72, was born before independence and has pre-independence identity papers. Although she was eligible for citizenship, she was issued a red identity card when she registered for an IC. Her subsequent application for a passport has been denied, and she has been applying for citizenship since then.
ADOPTED child Thee Hin Yee, 19, had her birth certificate confiscated by the NRD when she went to collect her IC seven years ago.
They Department officials told that her birth certificate was not legitimate, and also retained her IC. Her application was submitted in 2002, but there had no progress as of November 2008.
BORN and raised in Alor Setar, S. Chelaiya was granted citizenship at the age of 84, after a 35-year battle. He had been denied citizenship earlier because he did not have the proper documentation.
In no man’s land
THERE are various reasons why statelessness occurs but the United Nations High Commissioner for Refugees (UNHCR) lists the most common as follows: faulty administrative practices, conflicts in the nationality laws of different countries, and the failure or refusal of a state to ensure the registration of births.
In The State of the World’s Refugees: A Humanitarian Agenda, UNHCR reports that children born to stateless persons or refugees, or born out of wedlock, are often denied citizenship despite it being the fundamental right of every child to acquire a nationality.
Citizens may find themselves stateless or with a disputed claim to citizenship if decolonisation occurs, or if a government amends its citizenship laws.
A citizen may also be rendered stateless if he loses his nationality and fails to acquire a new one as a result of an extended stay abroad or through marriage (and subsequent divorce from) a person of a different nationality. This is a problem that affects a disproportionate number of women.
Large-scale statelessness may arise in the context of mass expulsions and refugee movements, especially when the population concerned has lived in exile for many years without acquiring the citizenship of its asylum country.
Interestingly, the UNHCR also reports that in recent years, asylum seekers have become or remained stateless by choice, to enhance their prospects for admission into one of the more prosperous countries.
A long, long wait
TWENTY-six years. That’s how long I’ve been waiting for news about my status,” says Paula (not her real name), a Singaporean married to a Malaysian.
Each time she enquires about her application for citizenship, the immigration officer would tell her to “tunggu” (wait) and “sabar” (be patient), she says.
“Now that it has been over two decades, they have taken to telling me that I should appeal my case. But, what is there to appeal against where no decision has been made?”
“They constantly remind me that citizenship is a privilege, not a right, but even my permanent resident application has not yet been processed,” laments the mother of three school-going children.
Paula’s is one of an estimated 60,000 problem cases concerning citizenship application.
MCA Citizenship Task Force national coordinator Dr Jeffrey Goh says: “There are so many cases out there and the reason for this is that we do not have a standard application procedure and there is no transparency.
“We are sick and tired of dealing with them on a case-by-case basis because we are always told ‘tunggu’ or ‘sabar’. Therefore, we have set up a task force to compile these cases and analyse whether there is a pattern to them”.
Goh adds that the first batch of cases will be compiled after a month and sent to the relevant parties,
The task force has adopted a holistic approach to the study, Goh adds, and among the things it is interested in are: what percentage of applicants are foreign spouses or are children born out of wedlock; how many people have been waiting for over 10 years for a response from the National Registration Department; how many are above 40 years old; how many have had their applications rejected, and on what grounds.
It is also interested in why Indonesians can obtain citizenship so easily while genuine Malaysians are not.
Goh suggests that the government should come up with a standard procedure for applications, with a time line, and state clearly the criteria required to qualify for citizenship.
“The criteria should be made clear from day one and it should be relevant and transparent. In that way, people will know what to expect and there will be no queries if an application is rejected. Applicants should be informed on the spot if their documents are not in order, not years later.
“They should be also be told when they can expect to be called in for the interview and when they will be informed of the outcome of their application. At present, they are just told to wait. Some of them have told me that they’ve been waiting for up to 40 years. I think that’s just ridiculous,” he says.
>Visit www.mcawp.org.my for a listing of MCA citizenship task force service centres and contact persons.