KUALA LUMPUR, July 24 — Malaysian citizenship laws are widely perceived as disfavouring Malaysian women who give birth abroad and want their children to be recognised as citizens of this country.
For those embarking on this uphill task, there has been no compelling official explanation as to why citizenship laws were drafted in a manner that discriminates against them.
In its defence, the Home Ministry had cited reasons of “national security” and preventing children born abroad to Malaysian women from gaining dual citizenship.
It should be noted, however, that Malaysian men have the automatic right to confer citizenship to their children born abroad through the simple process of registration under Article 14(1)(b) of the Federal Constitution.
In contrast, Malaysian women who wish the same for their overseas-born children must apply for Malaysian citizenship under Article 15(2) of the Federal Constitution.
This process is a lengthy one as it can be years before the Malaysian government responds, with no guarantee that the child will be granted citizenship as such applications are more often rejected than not.
Take the case of Malaysian Sabeena Syed Jafer Hussain Zaidi, who was married to famed Pakistani painter Syed Riaz Zaidi, and gave birth to their four children abroad.
After the family moved to Malaysia in 2008, the long wait for the children’s citizenship began, eating up the family’s entire savings, and ultimately, proving unfruitful.
The family have endured long separations since, as some of the children could not remain in Malaysia legally and were forced to study or work overseas instead.
Tragically, Sabeena died this year without ever seeing her citizenship wish for her children realised.
A migration of hope ends in despair
Sabeena and Riaz decided to relocate to Malaysia 14 years ago, after Riaz took early retirement from his job with the United Nations (UN).
In March 2009, she applied for citizenship under Article 15(2) for three children: Syed Ali Raghib, Syeda Neeha Batool and Syeda Niba Batool Zaidi.
This was after the couple had spent the previous year compiling the required documents, such as registering their marriage under Malaysian law and securing a long-term spouse visa for Riaz.
Although she had wanted the same for her eldest, she was told that Syed Muhammad Jazib, didn’t qualify for citizenship as he was over 18. Left with little choice, he decided to pursue his studies in the United Kingdom.
Before her death, Sabeena commented in a survey conducted by Family Frontiers: “Since then, my son has only visited, but we’ve never got a chance to live with him as a family. It still breaks my heart. I applied for my other three children instead, Raghib (my second son) aged 18 at that time, my daughters, Neeha and Niba aged 15 and 10.
“After a few years, when we didn’t hear from JPN, we went to check and were told our application had been rejected and that they’ve mailed the letter to us. We never received that letter. By this time, Raghib and Neeha were already over 18 and we could not reapply for them so instead we thought we could try and apply for a ‘Permit Masuk’ (entry permit) instead. In 2013, we put in our application, and in 2014, we received the rejection letters.”
JPN is the Malay abbreviation for the National Registration Department (NRD), which is where Malaysian mothers file the citizenship applications for their overseas-born children.
Meanwhile, Family Frontiers is a non-governmental organisation that supports Malaysian mothers’ fight for equal citizenship rights.
The family reapplied for citizenship for Niba in 2016 under the same Article 15(2) route, despite initial rejections. Niba was already 17 by that time, and to date, there has been no response from the authorities.
“Whenever we call, they either don’t pick up until 50 or more times of redialling, and all we hear is ‘masih dalam proses’. I remember when we moved here, I was excited to go back home with my family and start a new chapter. I was in my 40s then, and now, I’m in my 60s, my family is all scattered and my own country didn’t accept us,” Sabeena said.
Niba, now 23, is the only sibling currently residing in Malaysia; the rest are based in the UK, Pakistan and Qatar.
She is on a 10-year Residence Pass-Talent (RP-T) which allows her to work and study here. She vows to keep fighting until she gets her official Malaysian citizenship papers.
What the Federal Constitution says
Under Article 14(1)(b) of the Federal Constitution, every person born on or after Malaysia was formed in 1963 and fulfilling any of the conditions in Part II of the Second Schedule of the Federal Constitution are “citizens by operation of law”. This basically means they are automatically entitled to be Malaysian citizens or are citizens because of the law if they meet the conditions.
Under Part II conditions for a person born outside of Malaysia to be entitled to Malaysian citizenship, Section 1(b) and Section 1(c) specifically require their “father” to be a Malaysian citizen at the time of their birth.
This would be discriminatory to Malaysian women, as these Part II citizenship conditions under Article 14(1)(b) only mention “father”. This means Malaysian women have not been able to pass on their citizenship to their children born overseas under Article 14(1)(b).
Although the Malaysian government finally amended the Federal Constitution’s Article 8(2) to disallow gender discrimination against Malaysians in any law, and this new protection came into effect on September 28, 2001, the government did not take steps to change the country’s citizenship laws to remove gender discrimination against Malaysian women with overseas-born children.
Instead of being able to use the Article 14(1)(b) method like Malaysian fathers — where Malaysian citizenship for overseas-born children is automatic if all conditions are fulfilled — Malaysian mothers like Sabeena had been forced to rely on the Article 15(2) method for their overseas-born children.
Under Article 15(2), it is up to the Malaysian government to decide whether to register any person ― aged below 21 and who has at least one Malaysian parent ― as a Malaysian citizen, if the person’s parent or guardian applies for the citizenship registration.
This is where those like Sabeena get caught up in a messy legal battle.
With Sabeena gone, what happens now?
Hope returned to the family after the High Court in September 2021 ruled that Malaysia’s citizenship laws discriminated against women, stating that Malaysian mothers whose children are born overseas should also be entitled to Malaysian citizenship.
The High Court had found in favour of Family Frontiers and six affected Malaysian mothers with overseas-born children in their lawsuit against the Malaysian government, home minister and NRD director-general.
However, the government appealed against the decision and the Court of Appeal will issue its judgement on August 5.
Both the High Court and Court of Appeal rejected the government’s bid to stay or suspend the effect of the September 2021 decision while waiting for the appeal to be decided.
This paved the way for Malaysian mothers to start applying for their overseas-born children’s citizenship under Article 14(1)(b) since late December 2021.
So far, all six of the Malaysian mothers in the lawsuit have received citizenship certificates for their children after making Article 14(1)(b) applications.
Following the High Court’s decision, Sabeena and Niba visited the NRD, hoping to file a new citizenship application — this time under Article 14(1)(b).
Niba said the NRD had responded that it required a list of documents for the fresh application, and that the family had to get the documents shipped over from Pakistan again.
Unfortunately, Sabeena died in March as the family was still trying to get the paperwork in order.
Niba is now concerned that she faces a new hurdle after an overseas-born friend in a similar predicament said that her Malaysian mother must be present when the citizenship application under Article 14(1)(b) is submitted to the NRD.
“We didn’t get a chance to submit it. We were still trying to get those things done. At the same time, I spoke to a friend who is like me, and she said that she went and was told that her mum, who had passed away, needs to be present. Which is insane, as she has been here for years,” she said.
When contacted by Malay Mail, lawyer Latheefa Koya said that this issue should not arise as it is the fact of things which transpired at birth that matters to be eligible for Malaysian citizenship.
“It doesn’t matter if your father has died, or your mother has died. It is the fact of what happened to you at birth. There is no such thing where you must produce your deceased parent.
“They are making it hard by imposing unlawful restrictions, which is a breach of their duty to uphold the constitutional rights,” she said, referring to NRD officials.
She said that not only are NRD officials who make such a demand denying the applicant’s constitutional rights, but also that the law does not mandate such a requirement.
“It does not say the parents must be alive,” Latheefa, who handles cases related to human rights and citizenship issues, added.
A son pens his frustration
In an emotional letter to Malay Mail, Sabeena’s Pakistan-based second son, Ali, expressed his disappointment and frustration at the state his family was left in owing to the legal complications.
He urged the Malaysian government to look into the matter and provide ease of passage for those like him.
“After all of this, so many of these questions arise, like why are there such strict rules? Is this more important than humanity? When God created these special relationships, then why are we building all these barriers to break those bonds? Shouldn’t Malaysia create ease for their people, especially when this is basic human rights? This is how relationships work, this is nature, why would you separate children from their parents and vice versa?
“We are fighting so much to get a nationality just so we could be close to our mother and so we could at least visit her especially after all that she has done for us. Imagine just to visit her, we would have to spend so much on tickets, hotels and visas, to come back to the country we call home? Could we get a visa just on the basis that we want to visit our mom’s grave and pray for her there?
“Why are there such strict regulations? Why even after death, you want to keep a mother away from her children? The government should do something about this. We’ve dealt with so much,” Ali wrote.