Who loves being in limbo? That is statelessness in a nutshell.
According to the United Nations High Commissioner for Refugees (UNHCR), a stateless person is an individual who is not a citizen or national under the operation of the laws of any country.
Like countries elsewhere, Malaysia has its fair share of stateless people. UNHCR data say roughly 10,000 people in the peninsula have been denied nationality as at end December 2017 while the numbers are unknown in Sabah and Sarawak.
Recently, a group of Indian members of parliament (MP) from Pakatan Harapan pledged to solve citizenship problems among the Indian community, as part of the ruling coalition’s 100-day pledge.
But Latheefa Koya, co-founder of Lawyers for Liberty, criticised the agenda, pointing out that statelessness is not confined to one people group.
“Why again are the Indian leaders left to take up Indian issues, which should be the concern of all government leaders and elected reps, irrespective of race?” she said in a June 26 statement.
Statelessness transcends ethnicity
In Malaysia, there are four main groups of people described as stateless or at risk of statelessness: Malaysians of Indian descent; Rohingya refugees from Myanmar; the nomadic boat-dwellers known as Bajau Laut or Sama Dilaut; and children of refugees and migrants and those born out of wedlock.
For the Malaysian Indians, after Malaya gained independence in 1957, they were entitled to citizenship under the Federal Constitution. But obtaining citizenship proved difficult for a select group of Indians – the plantation workers.
These communities in the estates were “fairly self-contained and isolated from outside society”, says the Malaysian Indian Blueprint (MIB).
According to the MIB, a large number of Indian migrants successfully registered as Malayans – later Malaysians – after independence, but “there are still pockets that remain undocumented due to ignorance, illiteracy and procedural challenges.”
Other people groups affected by statelessness or rather at risk of statelessness are “by and large perceived as irregular migrants and/or non-citizens”, wrote academic Rodziana Mohamed Razali in her paper, Addressing Statelessness in Malaysia: New Hope and Remaining Challenges, published last year.
Besides undocumented stateless refugees and asylum seekers and their children, Rodziana found many from this group are of undetermined nationality due to “mixed migration” or children denied citizenship due to being out of wedlock.
Mixed migration or a “mixed flow” is defined as “complex population movements including refugees, asylum seekers, economic migrants and other migrants”, according to the International Organisation for Migration.
It may also consist of unaccompanied minors, environmental migrants, trafficking victims and stranded migrants, among others.
Michael Jeyakumar Devaraj, a central committee member of Parti Sosialis Malaysia (PSM), met the Institutional Reforms Committee and brought with him 20 stateless people who were born in Malaysia.
Ragu Rajamani, 43, was among the 20. He was raised in an orphanage but does not possess an identification card or MyKad.
“I cannot even open a bank account or EPF account, which makes things really difficult for me. I want the new government to help review my case and make life easier for people in the same boat as me,” he told reporters after meeting the committee on June 27.
Many of the discussions around statelessness revolves around children, especially those born out of wedlock.
When stereotyping is policy
Previously, the Home Ministry dealt with statelessness by pointing to the fact that a child’s citizenship is determined by, and the sole responsibility of, the parents.
For example, Seputeh MP Teresa Kok, during the final sitting of the 13th parliament, asked the Home Ministry to provide a breakdown of stateless children from state to state.
She wanted to know what the ministry’s policies were, as this group of children are not allowed to study at public schools and denied entry into the workforce.
In its reply on March 12, the ministry established three arguments to deny that a child is stateless in Malaysia.
First, the National Registration Department (NRD) records every birth in the country. Second, a birth certificate is issued and in it states the nationality of the baby as well as his or her parents. Third, for children born out of wedlock, their nationality follows that of the mother according to Section 17, Part III, Second Schedule of the Federal Constitution.
“To label a child as stateless is inaccurate as it is the responsibility of the mother or guardian to ensure identification and travel documents of the mother’s country of origin are made available,” the ministry says.
In the same reply, it went on the blame the mother or guardian for failing to register their child and labels such stateless people illegals.
“The ministry wishes to stress that it is the failure of the mother or guardian in performing their duties that causes this issue to arise, such as the lack of an identification document from the country of origin. This results in them being illegal immigrants in this country,” it says.
In that reply, as it deals with schooling, the home ministry pointed to the Education Ministry when it comes to admitting stateless children into public or private schools, citing the Education Act 1996.
Previously, the education ministry has been inconsistent with its policy. The recent cases of G. Darshana and Roisah Abdullah bring to light how inept the ministry is at handling stateless children.
Roisah was born to a foreign mother while her father’s identity is unknown. She was adopted by a Malaysian woman after birth but her adopted mother died in 2014.
Rosiah was able to sit for her primary and secondary school exams but was stopped short from entering university because she lacked an identification card. After public outcry, she was allowed to pursue her studies at a public university.
As for G. Darshana, her Malaysian parents legally adopted her in 2014 but she was unable to enrol in a public school as she had been categorised a non-citizen.
Again, only after the incident made headlines, the education ministry allowed Darshana and other stateless children to enter public schools while citizenship was being sorted.
These are the lucky ones. The rest are left to their own devices. In 2015, UNHCR published a report on statelessness worldwide and its coverage on Malaysia, particularly on the Tamils in the peninsula, found that “a few children have seen their lack of nationality and inability to attend school lead to serious social problems”.
“In the case of Edwin, a stateless boy of Tamil origin in Malaysia, the impact of being deprived of the discipline and socialising benefits of school was stark.
“Orphaned at a young age, he grew up in a foster home without proper care or support. Unable to attend school because of the high ‘foreigners fees’ imposed on those without an ID card, he fell in with the wrong crowd and became addicted to drugs and alcohol,” reads the report.
To date, there is no clear policy move from the education ministry on statelessness.
The home ministry also adopted a similar response when queries were made for Sabah and Sarawak. It was the same script: the term statelessness is inaccurate, the ministry does not record such data, it is the responsibility of the mother or guardian to ensure the child’s birth is registered.
In Sabah, statelessness came to light when Aljazeera reported and documented their plight two years ago.
The documentary discovered that stateless people have resided in the state for generations, have assimilated themselves into the local economy working in industries such as palm oil, plantations, construction and fishing.
Aljazeera noted that the risks these people – especially the children – go through include being deported or put in prison.
Locals often blame stateless children for a range of social ills, the report adds. This stereotype is nationwide – that stateless or illegal immigrants have sinister intentions.
When Puchong MP Gobind Singh Deo asked the home ministry about its action to deal with the statelessness, part of the ministry’s response read, “these illegal immigrants purposely hide their information with the intention to get Malaysian identification”.
But when seen in the context of potential deportation, many undocumented migrants and stateless people opt to stay under the radar.
Sabah’s undocumented immigrants play an important role in the balance of powers of the state.
Academician Kamal Sadiq, in his research paper When States Prefer Non-Citizens Over Citizens, observes the incorporate of foreigners into the local population shifted voting patterns.
“This largely Muslim makeup of this illegal immigration into Sabah is viewed as an instrument for changing the voting pattern of Sabah to benefit Malay parties such as Umno”, he writes in his 2005 paper.
The motive, according to Kamal, was to increase Umno’s vote bank and the goal was “to override the Kadazandusuns and Muruts in favour of a coalition of Muslim groups represented and led by Umno”.
But it is not unheard of for stateless people as well as illegals working menial jobs in the peninsula.
In 2015, The Wall Street Journal discovered many undocumented migrants working the oil palm fields in the peninsula, in places such as Jempol. These plantations are controlled by Felda Global Ventures.
A case of inaccuracy
The NRD and home ministry has no statics on stateless children or people. The media has been citing then home minister Zahid Hamidi as saying there were 300,000 stateless children as at 2016.
The categorisation is inaccurate. Zahid was referring to the number of non-citizens born out of wedlock, which the NRD records.
This is in accordance with laws in the Birth and Death Registration Act 1957; Registration of Birth and Death Ordinance of Sabah; and Registration of Birth and Death Ordinance of Sarawak.
As at September 30, 2017, the NRD had registered around 588,197 births out of wedlock and this involves both citizens and non-citizens.
The NRD defines children born out of wedlock as, among others, those born of parents who are not married or parents whose marriage is not officially recognised according to Malaysian law or Malaysian Islamic law for Muslims.
A more inclusive policy approach
As noted earlier, Pakatan Harapan’s policy focus is the Indians. Barisan Nasional did not include this in its election manifesto.
But PSM in its Manifesto for the 99% treats statelessness as a national issue that transcends ethnicity.
PSM pledged to “review and amend” all laws and constitutional provisions that discriminate a person based on gender, including gaining citizenship for non-citizen spouses.
It also promised to establish a royal commission of inquiry to deal with citizenship problems for Malaysians born or have lived in the country for more than 10 years; provide permanent resident for foreign spouses of Malaysians; and address the problems of undocumented migrants in the country.
In the past, statelessness has been used for political gain. One famous programme was Projek IC or the granting of citizenship to immigrants in Sabah during the 90s.
This matter came to light when there was an abnormal spike in the state’s population during that period where foreigners comprise nearly 30% of Sabah’s 3.12 million populace.
Prime Minister Dr. Mahathir Mohamad has been named the man responsible for the programme during his previous stint as prime minister from 1981 to 2003.
In 2013, a royal commission of inquiry was set up to investigate the matter and a year later, in its report, the commission noted there was reason to believe there was a concerted citizenship-for-votes effort.
Newly minted Sabah Chief Minister Shafie Apdal has promised to fix statelessness in the state. Shafie is a former Umno strongman. He formed Warisan after falling out with then prime minister Najib Razak in 2015.
His ascension to chief ministership came on the back of an anti-Barisan Nasional/Umno wave but it is yet to be seen whether he is a different man, especially with regard to such policies.
Pakatan’s retention of the Special Unit for Socio Economic Development of the Indian Community (SEDIC) could also point to patronage when dealing with statelessness.
The unit was formed in 2015 under the Najib administration and comes under the purview of the Prime Minister’s Department as a vehicle to execute the policies in the MIB, among them statelessness. The Mega MyDaftar campaign was one of the agency’s brainchild.
SEDIC’s effectiveness had come into question. Klang MP Charles Santiago, who is almost among the group of Indian MPs pledging to combat statelessness, maintained that the unit will remain but will be “revamped”, raising concerns whether this will be another attempt at political patronage.
Latheefa, in her June 26 statement, pointed out that SEDIC was a “miserable failure” in resolving statelessness among the Indians.
“Sedic was also abused by Najib to carry out mock-cheque programmes to pay out taxpayers’ money to MIC-linked NGOs. This was little more than political patronage, which left the Indian community high and dry,” she says.
According to the UNHCR 1954 Convention, the important minimum standards of treatment for stateless people are the respect to freedom of religion and education for their children.
That means reforms from the top beginning with a concerted effort between the home ministry and education ministry not agencies such as SEDIC which is under the Prime Minister’s Department.
But, to date, there has been nothing concrete from the home ministry or its minister Muhyiddin Yassin.