Addressing Statelessness in Malaysia : New Hope and Remaining Challenges

Q1 Please describe your experience undertaking and completing your fellowship with the Centre for Human Rights and Legal Pluralism at McGill University from 2018 to 2019. How has this valuable opportunity impacted you personally and your career? 

Coming from the developing world, the Arnold and Blema Steinberg fellowship has made it possible for scholars like me to impact the internationalization of our higher education by tapping into and experiencing with cutting-edge resources and networking opportunities with intellectually robust academic as well as professional communities from North America and around the world.  

A year-stint spent at the Centre for Human Rights and Legal Pluralism in a multi-cultural legal and social landscape was a landmark phase in my career. It provided me with multiple platforms to highlight regional and country contexts on legal, social and development challenges associated with childhood statelessness, via a series of seminars, lectures, and dialogues organized by the Centre and other departments at McGill University.  

Working under the supervision and mentorship of a world class senior academic expert in migration law and policy, Professor François Crépeau (the Hans and Tamar Chair in Public International Law) and the inspiring leadership of the Centre’s Co Director, Professor Nandini Ramanujam has profoundly stimulated a new way to look at and approach things and diversely enriched my foresight and professional interests.  

With all the opportunities and network of support I was able to receive through this fellowship, my research project has culminated in a book manuscript addressing prevention of childhood statelessness, two published journal papers, and various seminar papers presented in Canada as well as Europe.  

Within less than a year of returning to my home country and institution, I was already working as a principal investigator of a research project that seeks to review aspects of migration law and policy governing low-skilled foreign workers under a grant sponsored by the Malaysian government and another research project funded by a United Nations agency on access to birth registration for children affected by migration. I am grateful to have been part of this prestigious fellowship and will certainly continue to treasure the personal and professional bonds established with the wonderful McGill community and other colleagues in Canada.  

Q2 Can you tell us how did you get interested in the statelessness issue in Malaysia and choose the said topic for your PhD thesis? How did you expand on this topic in the research that your pursued under the fellowship? 

First and foremost, I knew I wanted to explore an area of research that would allow me to positively contribute to humanity where there are compelling gaps in the work of scholars. I also wanted to research a problem that affects my region and my own country. My conscience convinced me that that could position me better in terms of appreciating the contexts as well as the dynamics of the research issues, with the hope that my research and the possible solutions that it might generate are strongly grounded in such awareness and insights. 

It struck me to learn of how statelessness and non-belonging to any state could be linked to many intersecting phenomena such as refugee flows and other forms of migration, poverty, discrimination and state succession, among others. Figures that were quoted by the media suggested between tens of thousands to hundreds of thousands of people affected by statelessness or at risk of statelessness in Malaysia. We are just behind Myanmar and Thailand in terms of the scale of the problem, which speaks to the breadth and intensity of the problem region-wide.  

Despite the magnitude of the problem, I found research and conversations about statelessness were somehow invisible in the local academic and non-academic scenes. Speaking of how the subject is treated in Malaysia, many tend to lump stateless with the wider category of undocumented and irregular migrants, which in turn adumbrates statelessness and feeds it into the common narratives around xenophobia and other anti-migrant sentiments.  Some people whom I spoke with mistook stateless for refugees. Some politicians asserted that they do not exist in Malaysia, but at other times, made references to, for instance, stateless children being unable to enter the Malaysian school system. There seems to be much confusion over who these people are and how they come to be stateless or at risk of being stateless. 

Driven by the goal of prevention and reduction of statelessness, I discovered prevention of childhood statelessness to be the specific area I wanted to dig into, as children especially, never deserve to be born stateless and to endure the plight of living without basic needs to accessible and affordable healthcare, education, liberty, and security of person.  

Under the fellowship, I expanded the previous scope of research by looking at the solution dimension to statelessness through a construction of a framework of birth registration that is traditionally confined to host states as the duty bearers to include states of origin. Where structural barriers stemming from ethnic identity politics, lack of political will and discrimination are widespread, the project tapped into context-specific tools employed by non-state actors such as international organizations, civil societies and private entities in overcoming barriers to access birth registration and possession of proof of legal identity. It evaluates the standards of birth registration with a view to exploring areas to strengthen the nexus between birth registration and the acquisition and establishment of a legal identity, including nationality. 

Q3 Which area of law governing statelessness in Malaysia that you wish to see changes on ? 

i. Immigration Law 

The definition of the term ‘prohibited immigrants’ in the Immigration Act 1959/63 that refers to people who are prohibited from entering the country ought to exclude refugees and stateless people. It is important to legally distinguish these people who seek protection from the larger cluster of the so-called ‘irregular’ migrants – to avoid them from being subjected to punishment, harassment, and other mistreatment from both the authorities and members of the public. Secondly, the policy and law concerning labour and immigration should allow for a temporary legal status with the right to legally work, at the minimum, to persons identified as stateless as well as refugees. It would certainly help in terms of the protection of such groups if the government could ratify the pertinent human rights conventions such as the 1951 Refugee Convention and the two 1954 and 1961 Statelessness Conventions. 

ii.  Birth Registration and Marriage Registration

These two rights are interrelated and could magnify the risk of statelessness to children, especially those born within vulnerable and often marginalised groups of stateless, refugees, and undocumented. A birth certificate serves as proof of one’s existence in the eyes of the law. It is needed to demonstrate the vital information of birthplace and parentage, the two criteria to determine and assign 
one’s nationality.                         

The international standards require that every birth should be recorded regardless of the immigration and status of one’s parents. To make this possible, every marriage must be registered and recorded by the civil authority. Informal religious marriages can be a barrier to universal birth registration. Furthermore, marriage registration provides protection from undesirable implications for children and women. To provide awareness on the significance of marriage registration among the vulnerable refugee groups, the Faculty of Syariah and Law in collaboration with a local non-governmental organisation (NGO) known as Refugee Support Group co-organised a workshop on marriage management of the refugees in 2018, which was officiated by the ex- OIC Special Envoy for Myanmar, Tan Sri Syed Hamid Albar.  

Without a legally recognised marriage, children born within it are technically assigned the status of ‘illegitimate’, and women as wives could suffer a host of human rights abuses without being able to legally enforce their rights, including matrimonial and property rights. Family unity including for deported, repatriated and resettled migrants, stateless, and refugees, can certainly be at stake without formal proof of birth registration and family relationship.  

Malaysia is home to many refugees, the largest size of which is represented by asylum seekers and refugees from Myanmar. The latest exodus in 2017 drove some 700,000 Rohingya refugees fleeing the country to its neighbours, primarily Bangladesh, Malaysia, and India – amid allegations of genocide. At the moment, access to the basic rights and livelihood can be restricted if proof of one’s legal residence and stay cannot be submitted – a barrier commonly faced by undocumented asylum seekers and migrants in this country.  

iii. Reservations to Basic International Norms on Legal Identity  

The country is party to both CRC and CEDAW, the two human rights conventions for the protection of children and women. But it still places reservations on a number of key provisions that are needed to ensure every child has a legal identity and is not discriminated against. Malaysia has committed itself to achieving SDG 2030 and is also among the UN Member States that has recently accepted the UN Global Compacts on Refugees and on Migrants. In line with these global pledges calling for promotion of inclusion for development and for safe, regular and orderly migration, non-discrimination, and dignified return – the government should consider lifting its reservations to crucial provisions to protect against statelessness, such as Article 2 CRC on the right of every child not to be discriminated, Article 7 CRC on the rights of every child to be registered at birth and to acquire a nationality, and Article 9(2) CEDAW to ensure equality between men and women of their rights to pass on nationality to their children.  

In Canada, my focus was still on protection of children against statelessness, albeit with a heavier emphasis on its mitigation/ solution dimension through an integrated system of birth and legal identity status, including nationality. Countries in the Americas, including Canada and the United States are known for being countries with more open and lenient immigration and citizenship policies, which are favourable for a wider and meaningful inclusion of migrants and refugees. 

The regional human rights framework in the American continent underscores the vital function of birth registration in securing children’s right to their legal identity. Its regional jurisprudence has grown to support the universality of this right to every child without regards to migratory status. Beyond legal concepts, there is also so much to explore in terms of interventions along paralegal services and advocacy, social mobilization, and digitization in removing barriers to birth registration in this region.  

These are the aspects of best practices through cross-regional learning that my research sought to gather. The region’s tolerant citizenship framework that upholds pluralism and diversity came under greater pressure for reform in the wake of discontent and opposition by far-right and anti-immigrant politics especially in the US. The legal-political climate made the research experience more enriching and worthwhile, allowing one to observe and draw lessons from how other political, social, and academic movements critically respond to this contemporary polemic and debate around political membership and inclusion.

Q4 What do you think is the greatest opportunity and the most difficult challenge in terms of addressing statelessness in Malaysia today? 

Concerns over statelessness have gained steam at the turn of the century. UNHCR’s global initiative better known as the #IBelong Campaign has contributed to a steady increase in the ratification of the statelessness conventions. In light of this positive trend, Malaysia has seen progress in terms of awareness and actions on the ground that engage multi-stakeholder approaches to document, register and assist undocumented people, such as the Indians of Tamil descent to apply for their birth registration and citizenship. Beyond this, much work remains to be done, including for the stateless and at-risk groups in Sabah – predominantly the Bajau Laut and other undocumented natives and migrant populations with uncertain nationality status – who have lived out their lives in the state for generations. Having said that, it is hard to design intervention strategies without being able to have reliable estimates and baseline information of the affected populations. Mapping, data gathering, and data sharing need to be systematically arranged in such a way that leads to better predictability and evidence-based policies at the domestic level, supported by interstate and interagency cooperation for mitigation and resolution of the issues.  

Lack of gender-neutral provisions for conferral of nationality and restrictive judicial interpretations of the constitutional legal safeguards continue to create pushback against the potential of the safeguards to benefit children in need of protection against statelessness and its negative human rights implications, including children born out of wedlock to at least a Malaysian parent. Human rights based perspectives are still ambivalent in judicial interpretations of the legal provisions vis-à-vis technical understandings on citizenship claims. Even the principle of the best interests of the child is seldom invoked as a tool of legal analysis of the related provisions on citizenship that could offer protection against statelessness. 

There are ample frameworks that call for the principles of shared responsibility and cooperation between states on improving the aspect of management of irregular migration, such as the Bali Process and the recently concluded Global Compact on Migration. The provision of legal identity for all is clearly embedded in such frameworks, which is key to tackling the root causes of displacement and ensuring orderly and regular migration – both forming important measures to reduce statelessness. The big task ahead is how to translate and channel all these commitments and principles into actionable plans as progress in tackling politically sensitive issues such as statelessness is always conditioned on the level of political will and buy-in on the part of the policy makers and political actors. 

Q5 Majority of the Human Rights Convention is not being enacted into local legislation. Why is it so? 

Treaties ratified by the Federal Government of Malaysia are not self-executing as Malaysia adopts a strict dualist approach. The definition of ‘law’ in the Federal Constitution of Malaysia itself does not include international law. The Government thus retains its authority to determine the scope and application of the treaties. Contrary to the idea of universal nature of human rights, such power, which also entails refusal to enact certain ratified provisions is thought necessary, among others, to avoid unintended results that could undermine the Constitution, prejudice and interfere with local customs, federal-state relations and other domestic interests. This assertion of sovereignty can be viewed as being contrary to ‘good faith’ for a contracting state that has already ratified a certain convention. The domestic courts, however, are not restricted from engaging with unincorporated treaty provisions in their legal interpretations and judicial reasoning, particularly for removing ambiguities in domestic legislation, including the Constitution, and highlighting the need to act consistently with the relevant ratified treaties. Such judicial roles which have been advanced in a number of cases can certainly help mitigate against the effects of such strict dualism. 

Q6 What do you hope to accomplish through your current work and research? 

Through my current research, I hope to present states within ASEAN including Malaysia, analysis of data and resources to evaluate strengths, weaknesses and gaps in their birth registration coverage and governance. The compilation and comparative evaluation of the standards and best practices will provide them with legal, policy and to some extent technical guidance for improvement in realizing universal birth registration and legal identity for all, especially children. The outcomes could further contribute to enhancing the knowledge base complementing and supporting the goals of promoting equality and opportunity for all through ASEAN Community 2025, as well as promoting and protecting human rights and sustainable development goals of 2030, through the provision of legal identity for all.  

I hope that my work on statelessness, together with the efforts and contributions by other stakeholders within and beyond academia, will deepen our current understanding, facilitate discussions and eventually nurture potential solutions for legal identity and protection   of the rights of every child. 

*The above conversation is adapted from an earlier interview given for Lexis Nexis by Dr Rodziana Mohamed Razali and her testimonies to McGill Centre for Human Rights and Legal Pluralism.