Govt risks court action over gender bias in granting Malaysian citizenship

A group of activists is seeking a declaration that a provision not to grant citizenship to children born abroad to Malaysian women who marry foreign spouses is a violation of the Federal Constitution’s guarantee against gender discrimination.

MalaysiaNow understands that the suit is over the home ministry’s refusal to recognise children born to Malaysian women abroad as citizens.

This comes after Deputy Home Minister Ismail Mohamed Said’s statement in the Dewan Rakyat defending the practice.

He had argued that in other countries, children born overseas follow their father’s citizenship, and as such, there could be dual citizenship for children born abroad to Malaysian women with foreign husbands.

Malaysia does not recognise dual citizenship.

Under the Federal Constitution, children born overseas to Malaysian fathers are automatically granted citizenship.

Those born to Malaysian mothers, meanwhile, need to apply for citizenship.

Critics have said there is almost no chance of such applications succeeding.

Activists say the provision violates Article 8(2) of the constitution, which states that there shall be no discrimination against citizens based on religion, race, ethnicity, place of birth or gender.

Speaking to MalaysiaNow, Noor Aziah Mohd Awal, who is the child affairs commissioner under the government’s Human Rights Commission (Suhakam), agreed with critics that the law was discriminatory against women.

“The home ministry’s statement also challenges the right of Malaysian women to marry spouses of their own choosing as the children who are born become victims of circumstances,” she told MalaysiaNow.

Article 8(2) of the constitution states that there shall be no discrimination against citizens based on religion, race, ethnicity, place of birth or gender.

She said there are also other laws which discriminate against women, despite constitutional amendments made to fulfil the Convention on the Elimination of All Forms of Discrimination Against Women, of which Malaysia is a signatory.

She cited the restriction on foreign husbands of Malaysian women from seeking employment within the first year of marriage.

“If foreigners who marry Malaysian women are unable to work for at least a year, this will burden the women,” she added.

Meanwhile, several Malaysians abroad have criticsed the rule not to give automatic citizenship to their children.

In a recent online dialogue hosted by Foreign Spouses Support Group (FSSG), a Malaysian mother said she had no choice but to deliver her daughter outside of Malaysia after her foreigner husband’s appeal to accompany her to Malaysia was rejected due to the Covid-19 travel restrictions.

“No one should be in a position where they have to choose between their family and the right to citizenship,” said Josil, who said she is now worried about her child’s legal status.

She said although she could apply for citizenship within the first year, she is not hopeful.

“Success rate is extremely low. In the network of mothers that we have set up by the FSSG, two out of 70 applications have been successful so far,” said Josil, adding that she foresees challenges in bringing up a non-citizen child in Malaysia.

FSSG said Malaysia is only one of 25 countries that do not grant mothers equal rights of citizenship for their children.

The Joint Action Council for Gender Equality (JAG) meanwhile criticised the citizenship law as unfair to women.

It said there are cases in which the non-citizen status of their children forced some Malaysian women to remain in abusive marriages as they had no choice but to depend on their foreign husbands.

But JAG welcomed the home ministry’s willingness to engage with NGOs and the public on the matter.

“We urge the government to recognise citizenship as a right and not a privilege, and that citizenship should be granted to every child, whose either parent or adopted parent is a Malaysian, irrespective of the marital status of the parents, gender of the Malaysian parent or place of birth of the child,” it added.

Nur Hasliza Mohd Salleh contributed to this report.