Legal action to address childhood statelessness in Malaysia
1. Background: Statelessness Among Malaysian Indians in Peninsular Malaysia
Statelessness is a longstanding and multifaceted issue in Malaysia. Malaysians of Tamil Indian descent, the majority of whom can trace their roots to colonial times, are a group that has been particularly affected. In the 19th and early 20th centuries, a large number of Indian Tamils were brought to Malaysia by the British colonial administration as indentured labourers on plantations. The root causes of statelessness within this group include administrative technicalities as well as chronic socioeconomic marginalisation and discrimination. Many Tamil people would have been eligible to claim Malaysian nationality during the transition to independence after 1957, but did not obtain the documentary evidence needed to substantiate their claims. Because the Malaysian government primarily abides by a jus sanguinis citizenship regime, the failure to acquire papers such as birth certificates and identity cards during this period has resulted in the perpetuation of statelessness across multiple generations. In addition, poverty, geographical segregation, racial discrimination, and social exclusion in the contemporary era place Tamil Malaysians at a higher risk of not possessing vital documents.
2. Community-Based Legal Aid
DHRRA (Development of Human Resources in Rural Areas) Malaysia has been providing legal assistance to stateless communities in West Malaysia since 2006 through an initiative known as Projek Mendaftar Anak Malaysia. In 2014, DHRRA significantly scaled up its work on statelessness by carrying out a comprehensive mapping, registration, and community-based legal assistance project across the Peninsular region. Harnessing innovative mobile app technologies and a centralised digital database, mobile registration teams (consisting of 11 volunteers in each district) went from door to door brightly dressed in orange shirts to identify stateless and at risk of statelessness individuals, and guide them through Malaysia's civil registration system.
In 2014, registration began in Kedah and Perak, moving on to Negeri Sembilan and Selangor in 2015. Based on this mapping, a total of 12,341 cases of individuals lacking birth certificates, identity cards, or citizenship were identified.
3. Evidence-Based Advocacy and Awareness-Raising
DHRRA recognises that quality evidence is needed to inform federal level policy discussions on the provision of legal identity to marginalised and hard-to-reach populations. In the past, the number of persons affected has been highly contested with estimates varying from 9,000 to 300,000. Through the mapping and registration initiative, DHRRA aimed to establish more accurate estimates of the size of the stateless population, with a focus on the Indian community in West Malaysia. The customised database not only facilitates the work of paralegals and case workers to resolve people's documentation issues with the National Registration Department (NRD), but also functions as an important data-generating tool. The database, for example, provides baseline data on births, deaths, marriages and related matters, and can be disaggregated by key demographic characteristics such as age, gender, ethnicity, educational attainment, employment status, nationality status, nationality status of parents, documentation of parents, and residence/location.
4. Strategic Litigation
Strategic litigation is an important pillar of DHRRA's initiative. There are a number of provisions within the Malaysian Federal Constitution that, if implemented fully and consistently, could result in the resolution of many cases of statelessness in West Malaysia. Therefore, legal action with the aim to set legal precedent and reform policy is one way to reduce and eventually eradicate statelessness.
Cases that cannot be resolved at the NRD level by community-based paralegals are taken to court by pro-bono lawyers. DHRRA has so far identified 260 of such cases, which mainly fall under four categories:
- Adoption: Malaysian parents who adopt children either formally or informally, are unable to pass their citizenship on to them. DHRRA maintains that adopted children should be entitled to inherit the citizenship of their adoptive parents under Article 15 of the Federal Constitution. In cases concerning adopted children, DHRRA’s pro-bono lawyers first aim to formalise the adoption process, and secondly to argue in favour of the right of the adopted child to inherit the citizenship of their adoptive parents.
- Children born out of wedlock: According to Malaysian nationality law, children who are born in Malaysian territory but out of wedlock inherit citizenship from their mother only. DHRRA has encountered many situations in which a child is born to a Malaysian man and non-Malaysian woman who can no longer be located (due to, for example, having returned to their country of origin), rendering the child with undetermined nationality. DHRRA’s position is that in these circumstances, it is in the best interest of the child to inherit Malaysian citizenship through his/her father.
- Safeguard against statelessness: The Constitution states that a child born in Malaysia who is not the citizen of another country and who cannot register to acquire the citizenship of another country within 12 months is a Malaysian citizen. However, while this provision theoretically provides a powerful safeguard against statelessness, it has not been implemented in practice by the Malaysian government. Cases filed on behalf of foundling children aim to test this provision.
- MyPR/MyKas Holders: Article 14 of the Federal Constitution states that every person born on or before Malaysia Day (independence day) is a citizen by operation of law. People who meet these qualifications, but who are unable to produce the documentary evidence to prove their presence in the Federation prior to 1957, are often given temporary or permanent residence status. Due to their inability to satisfy the administrative requirements set out by the NRD, they face rejection despite the fact that most have lived their entire lives in Malaysia. DHRRA advocates for a reform of NRD’s administrative procedures in the interest of establishing a more flexible approach to applying the nationality law. Another common scenario that falls under this category concerns foundlings who are raised in welfare homes. Because their parents cannot be located, they are given temporary residence status (MyKas), renewable every five years.
5. Impact made
Using a community-based paralegal approach, DHRRA has been able to empower community members to help one another acquire or confirm their nationality. Community-based paralegals help link local society and government institutions in flexible, accessible, and cost-effective ways. As of 1 November 2016, DHRRA Malaysia has registered a total of 12,350 people who do not have any documentation that establishes their Malaysian (or foreign) citizenship. The Community Paralegals have assisted 9,247people to make applications for nationality documentation to the NRD. So far, 1,461 of these applications have been successful.
Through DHRRA Malaysia’s evidence-based advocacy and awareness campaigns, we have encouraged the Government of Malaysia to be more open to addressing statelessness. Progressive developments include shortening the processing time of cases referred by DHRRA Malaysia and expediting the search in NRD state offices. Apart from that, the Special Implementation Task Force for Indian Committee was established by the Prime Minister’s Office in coordination with the Ministry of Home Affairs to assist and engage in dialogue to address documentation issues and statelessness.
Often, stateless youth and children are asked to discontinue their studies or to pay a much higher fee/levy (charges for foreigners) to continue their education. We have assisted over one hundred stateless youth and children whose applications are pending before the NRD to continue their education and skill/vocational training with relevant government institutes.
6. Challenges/ reflections and lessons learned
DHRRA has confronted numerous challenges in its work. Stateless populations are not concentrated in one place, but are geographically dispersed across both urban and rural areas. Most communities in Kedah, for example, live in hard-to-reach palm oil plantation sites and cannot afford to travel into town. Volunteers have had to brave torrential rainstorms and other extreme weather conditions to reach and map these populations.
Furthermore, volunteer teams have had to work hard to gradually gain the trust of the communities they work with. Some people have endured a lifetime of legal invisibility, instilling within them a sense of scepticism and hopelessness towards the prospect of undergoing the registration process.
Lastly, the administrative procedures laid out by NRD are costly, complicated and lengthy, and applicants are held to high standards of proof in order to obtain vital documents. For example, we have faced difficulties retrieving proof of birth from hospitals because the date of birth provided by applicants does not line up with their hospital records. People who were born on plantations are especially at risk of not being able to produce birth records due to the likelihood that the clinics in which they were born have since been closed down. Although there is a provision for a declaration to be submitted in such instances, it is not considered as conclusive evidence. Furthermore, family members may not be willing to cooperate in providing necessary documents proving their biological relation to the applicant, or may be estranged or deceased.
Even when applications have been fully assembled, the time that applicants must wait for a decision is lengthy. The NRD’s initial procedure of looking through the database for duplicates before accepting an application alone can take four to eight weeks. The standard waiting period for a decision by the NRD is two to three years.
Despite these challenges, our evidence based work with statistical output has worked to our advantage, providing us with the necessary platform to discuss opportunities to strengthen the administrative framework and improve operational policy to resolve cases.