There are currently several thousand children with foreign mothers and Malaysian fathers, who are still struggling to obtain Malaysian citizenship despite the fact they were born in Malaysia. The PSM brought three of these families to Suhakam today to highlight their problems and to request Suhakam to look into the issue and advise the Government. A translation of the memorandum submitted on 13/9/2024 to Suhakam is given below –

The purpose of this memorandum is to bring to SUHAKAM’s attention the problems faced by two groups of children who have applied for citizenship under Article 15A of the Federal Constitution.

1. First Group – Children with a foreign mother who had not registered her marriage to her Malaysian husband at the time of the child’s birth

Many Malaysian men have developed relationships with female foreign workers. They get married according to traditional ceremonies but face problems in registering their marriage because the female foreign worker has to wait for her work permit to expire, return to her home country and come back to Malaysia with a social pass to register their marriage. Because of this problem, there are hundreds of families where the eldest child is born before the official registration of their parents’ marriage.

According to Article 14 of the Federal Constitution, any child born in Malaysia after 1963 with either a father or mother who is a citizen (or a Permanent Resident) is a citizen of Malaysia, by operation of law. But many children are denied Malaysian citizenship, despite being born in Malaysia to a Malaysian father, due to the way Section 17, Part III of the Second Schedule of the Federal Constitution of Malaysia is interpreted by the Ministry of Home Affairs (KDN).

Section 17 states that “references to a person’s father are, in a person who is illegitimate, are to be construed as references to his mother”. The KDN, at this time, interprets anyone born out of wedlock as “illegitimate”, even if the biological father later registers the marriage, and is ready to swear that the child is his biological child. As the citizenship of the father cannot be taken into account, such children are deemed to be non-citizens of Malaysia.

The National Registration Department (JPN) usually advises the father of such children to apply for citizenship for their child under Article 15A of the Federal Constitution. This article states that the Malaysian Government can grant citizenship to anyone under the age of 21. Application under Article 15A is through an application form. There is no requirement for any interview by the JPN. (Such interview would enable the JPN to understand the background of the subject in depth). The processing of an application under Article 15A usually takes several years, and it is often rejected without reason. There are many who have been rejected repeatedly. Allow us to present three cases that have been handled by PSM –

a. Chew X X

Chew X X’s mother was an Indonesian (Javanese) worker who married X X’s father, Mr. Chew Sr in 2011 . (She passed away 3 years ago.) Because their parents did not register their marriage, Chew X X and his younger brother Chew X Y have not been registered as Malaysian citizens even though their father is a Malaysian citizen. Chew X X’s father submitted an application for citizenship under Article 15A in 2019. He recently received a written reply that his application has been rejected. No reason was given for this decision.

b. D E

D E’s mother is an Indonesian worker who married her father, En Zulkafli in 1998. D E was born in Ipoh in 1999. Her father submitted an application under Article 15A in 2018 but it was rejected. The family were not told why. D E is now 24 years old and is not eligible to apply again under Article 15A – for that is only for individuals under the age of 21 yrs. (Incidentally, this is one of the provisions of the Federal Constitution that the Madani Government is intending to change – they want to lower the age of eligibiity for 15A from 21 years to 18 years. This has the unfortunate effect of narrowing the window of opportunity for these children.)

As it stands now, individuals like D E have no definite pathway to citizenship once they are too old to apply under the 15A provision. D E tried to apply under Article 19(1) but was rejected because one of the eligibility criteria is that the individual should have been a “Permanent Resident” of Malaysia for 12 years or more at the point of applying. D E had resided in Malaysia for more than 18 years when she submitted the 19(1) application, but not as a Permanent Resident (ie holder of a red identity card.) So, she was rejected.

c. The Foo siblings

Foo A L and Foo Z H were born at Tawau Hospital in 1995 and 1996 respectively. Their father, Foo Sr was a Malaysian citizen (now deceased), and their mother, L is a Filipino. Their parents’ marriage was only registered in 1998. A L has submitted 3 applications under Article 15A since 2010, but all were rejected. There is no way for Ai Lee to apply for citizenship now that she is over 21, other than applying after marrying a Malaysian citizen – but in that scenario too, she would face problems in registering the marriage. Z H has submitted 4 applications under Article 15A. Three have been rejected and he is now awaiting a decision on the last application, which was submitted in 2018.

A L and Z H’s three younger siblings who were born after their parents’ marriage was registered are Malaysian citizens. A L and Z H were born and raised in Malaysia. They have never left the country and are not citizens of any other country. Neither are they interested in going to other countries as their immediate family – mum and siblings are all here in Malaysia.

2. Second Group of 15A Applicants – Children with mothers who do not have an identity card even though these mothers were born in Malaysia

There are some families who fail to register the birth of their children with the National Registration Department (JPN), due to poverty, alcoholism and/or the lack of responsibility. Their children usually do not attend school and, when they get married, cannot register their marriage because they do not have an identity card. The children born to women in this situation will not be registered as Malaysian citizens even though the father is a Malaysian citizen because they are interpreted as “illegitimate” by JPN. They can apply for citizenship according to Article 15A of the Constitution, but face the same fate as the first group above.

An example of this group is the family of Mr K. All five of his children have had their citizenship applications rejected under Article 15A.

Problems caused by the policies of the Home Ministry (KDN)

The absence of citizenship causes a plethora of problems for the affected individuals. Their education is interrupted. They need to apply to the District Education Office and pay a special fee to attend government school. They are not eligible for free textbooks or for the free meals programs in schools. Many of them drop out of school. They are charged much higher fees for treatment in government hospitals. They cannot apply for a motorcycle license, open a bank account or work in the formal sector. They face problems WITH registering their marriages and for female subjects, this will cause citizenship problems for their children as well.

It is important that we realize two main things –

– The majority of children who apply for citizenship through Article 15A are from the B40 socio-economic strata. Malaysian men from the T20 strata are rarely entrapped in this situation because they are more aware of the country’s laws and have the financial means to avoid this.

– The vast majority of the two groups mentioned above will continue to reside in Malaysia and constitute the under-privileged and marginalised under-belly of our society. They will not magically disappear just because we make life difficult for them by denying them citizenship.

For example, Chew X X and his brother have lived in Malaysia since they were born. They attend a local school and they don’t know anyone from their mother’s family in Indonesia
(who, incidentally, speak a Javanese dialect). It is impossible for them to go to Indonesia and live there. D E’s siblings are registered as Malaysians. They and Deby’s parents will continue to live in Malaysia. It is very difficult for D E to go alone and live in Indonesia when her family is in Malaysia. And Mr. K’s children have absolutely no locus standi to apply any other country for citizenship, because their mother was born in Malaysia. They will continue to reside in Malaysia.

So, this policy that causes hardship for thousands of children in Malaysia, is a policy that does not benefits the families involved nor does it benefit the Malaysian nation. These policies stunt the development of these children, and perpetuate intergenerational poverty.

Steps to overcome the problem of children with non-citizen mothers

This problem can be overcome without any additional expenditure on the part of the government. Article 15A of the Federal Constitution empowers the Federal Government to grant citizenship to anyone under the age of 21. The government can use this power to enact a new administrative operating procedure (SOP), where all children born in Malaysia after September 1963 and whose father holds Malaysian citizenship, are registered as a Malaysian citizen despite the fact that their father’s marriage to the foreign mother was not registered at the time of the birth of the child involved. This approach will solve the citizenship problem for hundreds of children from the B40 layer and allow them to obtain education, vocational training and contribute to the family economy and national development.

A better solution would be to amend Section 17, Part III of the Second Schedule of the Federal Constitution. This section states that “references to a person’s father, in a person who is illegitimate, are to be construed as references to his mother”. The words “who is illegitimate” should be amended to “whose biological father cannot be ascertained“. This is the best method because it does not depend on the discretion of the Minister of Home Affairs and Senior Officials of the KDN.

Apart from simplifying the application process under Article 15A, the Government needs to handle those who have failed in their application under Article 15A, and are now no longer eligible to submit a new application because they are over 21 years of age. D E, the Foo siblings and 2 of K’s children face this situation. Currently, the JPN advises this group to apply under Article 19(1). But to do that, they are required to apply for a passport from their mother’s country of origin, and after that, apply for an Entry Permit to obtain Permanent Resident status. Among the problems faced in this process is that the Immigration Department only issues Entry Permits to applicants who are below 6 years old or to female applicants who have married Malaysian men.

Our recommendation is to prepare a new operating procedure to facilitate the application process under Article 19(1). The requirement to apply for citizenship of their mother’s country of origin and then obtain an Entry Permit should be waived for applicants who have previously applied under Article 15A.

Apart from the specific measures outlined above, it is important that Suhakam investigates the root causes for the persistence this problem 67 years after Independence. Is it in any way related to a narrow nationalist ideology that holds that policies that make it difficult for Malaysian citizenship applicants somehow protects and enhances the Malay community? This kind of thinking not only violates the principles of humanity, the spirit of the country’s constitution and religious teachings (Surah 5:8 is just one example), but it is causes misery in many families affected, and creates an underclass in our Society.

We hope that SUHAKAM will take this problem seriously and take steps to monitor and reform the current operating procedures. We include the details of the individuals named in this memorandum as well as those of several others facing the similar problem as Appendix Five. We hope that SUHAKAM can present this issue to the Minister of Home Affairs so that he can solve the problems of the listed individuals and create a more enlightened approach to handle this group of children.

Thank you.

Jeyakumar Devaraj

PSM