English 
Malay By: Bina Ramanand
Organisation/ Individual: Association of Family Support and Welfare Selangor and KL (Family Frontiers)
Policy Code: 2e Child
Problem Statement and Current Policy:
Children born to either parent Malaysian in the following categories currently face the barriers to acquiring automatic citizenship due to gender-biased provisions in the Malaysian Federal Constitution (F.C.): 1. Children born overseas to a Malaysian mother and a non-citizen father 2. Children born before a legally recognised marriage to a Malaysian father and a non-citizen mother Many children who are denied citizenship under these provisions are at-risk of stateless or are rendered stateless. Children impacted in this regard face a myriad of challenges, including unequal access to fundamental rights such as healthcare, education and economic opportunities. Children are also placed in vulnerable situations, including uncertain futures, forced family separation, and risk of detention and deportation should they be undocumented. In cases of separation or divorce of the parents, or the death of the Malaysian parent, most often the non-citizen parent is asked to return to their home country, which denies them visitations and co-parenting of their children, including when there is joint custody over the child.
Value(s) and Belief:
In the best interest of the child, ensure children whose either parent (adopted and biological) is Malaysian has access to Malaysian citizenship by ‘operation of law’ regardless of the marital status of the parent, gender of the Malaysian parent and the place of birth of the child.
Proposal of Solution and Call for Action:
Malaysian citizenship laws should be reviewed and reformed, in the best interest of the children, such that children of either parent (adopted and biological) Malaysian has access to automatic citizenship, particularly: 1. Amend Article 14(1)(b) of the F.C. and its related schedule to ensure overseas-born children to Malaysian mothers can secure automatic citizenship on an equal basis as children of Malaysian fathers. 2. Repeal Section 17 of Part III of the Second Schedule of the F.C. such that children born out of wedlock can obtain their Malaysian father’s citizenship on an automatic basis. 3. Amend Section 1 of the Second Schedule of the F.C. to ensure that adopted children can inherit citizenship from their adoptive Malaysian parent(s). Immigration policies concerning Malaysian binational families should be reviewed and reformed, particularly: 1. Enable a non-citizen parent of a Malaysian child to obtain a Residence pass with the right to employment to enable financial support, visitation and co-parenting of the Malaysian child 2. Allow separated, divorced and widowed non-citizen spouses of Malaysians (upon provision of supporting documents) to reside and work permanently and independently of the Malaysian spouse, without bias on the basis of nationality, ethnicity, gender, number and custody over children, or income. Reservations to Article 9(2) of the CEDAW and Article 7 of the CRC must be lifted.
Additional information:
A. ON ACCESS TO CITIZENSHIP: A detailed explanation on the two substantial obstacles to children acquiring Malaysian citizenship that this submission covers include: 1. Children born overseas to a Malaysian mother and a foreign father: Article 14(1)(b) of the Federal Constitution allows a person born outside of Malaysia to be a citizen by ‘operation of law’ provided that their father is a citizen at the time, limiting Malaysian mothers to Article 15(2) and its related Second Schedule, where citizenship is upon application—a system fraught with inconsistencies, delays, and no guarantee of securing citizenship. Those denied Malaysian citizenship are required to apply for long term visas or permanent residence for their children. However, both processes are unguaranteed, arbitrary and tedious. 2. Children born to a Malaysian father and a foreign mother outside of a legally recognized marriage: Section 17 of Part III of the Second Schedule of the Federal Constitution states a person born outside of a legally recognized marriage shall automatically be accorded the citizenship of their mother. According to Parliamentary Hansard from the 20 March 2019 parliamentary session, between 2013 and 15 February 2018, the National Registration Department (NRD) had recorded a total of: ● 4112 applications via Article 15(2) and 22,556 applications via Article 15A ● During the 9 October 2019 parliamentary session, it was recorded that the NRD approved: 142 applications via Article 15(2) and 1683 applications via Article 15A Malaysian mothers who have to apply for citizenship for their overseas-born children encounter numerous challenges. The approval rate is very slim, and with border closures during COVID-19 and travel risks, it can be deduced that there will be an increase in the number of children of Malaysian women born overseas, who are unable to secure citizenship. Lived realities documented by Family Frontiers shows that many Malaysian women strived to return to deliver their children but were faced with the risk of contracting the virus, and family separation, hence choosing to deliver their children overseas. With the difficulty to register marriages in Malaysia due to border closures and slowing down of civil registration services, children born to Malaysian fathers who are yet to legally register their marriage in Malaysia will be deemed to be born “out of wedlock” and may face the risk of statelessness. B. ON FAMILY SEPARATION: Impact on children in case of divorce of parents, demise of the malaysian parent, or abusive domestic environment— Divorced and widowed non-citizen spouses with children but without permanent residence status are left to acquire a six month pass (Social Visit Pass). In some cases the non-citizen spouse is not allowed to work during this period and is again left at the mercy of the benevolence of others. Those seeking remedy for domestic violence are allowed to remain in the country for a short-term, while those seeking custody of their children are often met with disappointment and eventual dismissal from the country. Very few are able to acquire the Residence Pass although this is mentioned on the Immigration website as an available facility. In cases where the foreign parent is unable to remain in the country or obtain custody of their children, the children may be forced to be separated from their foreign parent, as well as difficulty relating to matters on child maintenance. This is not in the best interest of the child and the separation and trauma can lead to long-term impacts on the child, including psychological, emotional and behavioural problems.