MPs must reject catastrophic constitutional amendment bill

Dewan Rakyat today is expected to debate the Constitution (Amendment) Bill 2024.

In March, Home Minister Saifuddin Nasution Ismail tabled the proposed constitutional amendments which aimed, among others, at granting equal right to Malaysian mothers to confer citizenship to their children born abroad. 

A progressive and laudable moment in Malaysia was turned into a fiasco and citizenship crisis when the government also sought to include several regressive amendments including removing the automatic citizenship of foundlings and children of Malaysian Permanent Residents born in the country.

Although the government later tabled a new version of the bill and withdrew the amendments to remove the foundling provisions, some regressive amendments remain including concerning children of Permanent Residents born in the country under section 1(a) of the Second Schedule, Part II of the Federal Constitution. 

During the parliamentary session, the minister made misleading claims to justify the proposed amendments, including the presence of 3.5 million foreigners in the country. 

The minister’s implication was clear, that ineligible children of foreigners were abusing the automatic citizenship right of children of permanent residents born in the country.

The statistic cited by the minister is obviously untrue as according to the Department of Statistics Malaysia in July 2024, there were 3.4 million foreigners residing in the country, which includes migrant workers. 

Therefore, the minister has conflated the number of foreigners in the country to mean Malaysian permanent residents.

The minister should know that Malaysia’s citizenship law does not provide for citizenship via jus soli. Therefore, children of foreigners born in the country cannot claim Malaysian citizenship as they could only inherit the citizenship of their foreign parents.

The minister must come clean in Parliament and provide the unvarnished statistics of the number of permanent residents in the country and their composition by ethnicity/nationality. 

Many of these permanent residents are not "foreigners" but Malaysians with genuine ties to the country who have been deprived of their rightful citizenship. 

They include Orang Asli, Orang Asal, generations of people of Chinese and Indian origin (and other ethnicity) who were born and permanently residing all their lives in Malaysia and do not possess any other citizenship.

If the citizenship by operation of law provision is removed and children of permanent residents born in the country can only apply for citizenship by registration as proposed by the minister, the latter is not enforceable in court. 

Therefore, citizenship by registration applications can only be decided at the discretion of the minister, and the courts will not be able to intervene. 

This would be catastrophic as it has been well documented that citizenship applications with the National Registration Department (NRD) can take many years, even decades to process, often only to receive a rejection without any explanation and no further recourse. 

Most will not have the support or resources to fight long administrative battles with the NRD, while also struggling with the daily challenges their stateless status presents. 

As the minister’s outrageous claim to justify the proposed amendments has been debunked, there is absolutely no rationale for the government to remove the right of children of permanent residents born in the country to acquire citizenship by operation of law.

There are other regressive provisions in the proposed amendments that the government has not justified which should also be rejected. These include lowering the age ceiling for citizenship application by children under Article 15A of the Federal Constitution from 21 years to 18 years; and revoking the citizenship of foreign women who became a citizen through marriage, if the marriage was dissolved within two years of them gaining citizenship under Article 26(2) of the Federal Constitution, when the limit was previously two years from the date of marriage.

As the bill stands, I call upon all parliamentarians who believe in human rights and a life with dignity to reject the proposed amendments as they would worsen significantly statelessness in the country. 

Vulnerable populations including Orang Asli, Orang Asal and people of Indian origin will be the most affected, as they continuously face a cycle of statelessness that is handed down from one generation to the next.

The minister’s vow to resolve outstanding citizenship cases and provide better standard operating procedures when processing applications are of little value, and certainly no substitute for the constitutional right of citizenship by operation of law. 

I further call for the proposed amendments to be decoupled, i.e., for each provision to be considered and voted separately in parts insofar as to only pass the amendments granting equal right to Malaysian mothers to confer citizenship to their children born abroad under section 1(b) and section 1(c) of the Second Schedule, Part II of the Federal Constitution. 

These amendments should also have retroactive effect so that all existing cases and circumstances of children born abroad to Malaysian mothers can be resolved immediately without further delay. It is high time for the unjust and discriminatory provisions against Malaysian mothers be removed, so that both Malaysian fathers and mothers can finally have equal right in conferring citizenship to their children.

 
Eric Paulsen is co-founder of Lawyers for Liberty and former representative of Malaysia to the Asean Intergovernmental Commission on Human Rights (AICHR).

The views expressed in this article are those of the author(s) and do not necessarily reflect the position of MalaysiaNow.