Malaysian citizenship is a hot topic these last few months, especially with regards to Family Frontiers’ bid obtain citizenship for 6 Malaysian mothers’ children born abroad.
In Sabah, the main citizenship issues are slightly different. This can be seen through two cases recently highlighted, which are uniquely linked to the practice of marriages through Adat Kampung, a marriage that is not recognized under Malaysian laws.
Sabah Citizenship Case #1: Chia Yong Chai
On 17 of February 2022, a stateless 26-year-old man born in Sabah to a Malaysian father and Indonesian mother was declared a Malaysian by the High Court. Chia Yong Chai has been waiting for his citizenship for over a decade despite having 3 elder sisters who are Malaysian and all born from the same set of parents.
Chia, born in 1996, has made three citizenship applications since he was 12 years old under Article 15(2) of the Federal Constitution which states that subject to Article 18, the Federal Government may cause any person under the age of twenty-one years whose parents one at least is (or was at death) a citizen to be registered as a citizen upon application made to the Federal Government by his parent or guardian.
Based on court affidavits, his parents were married in Tawau, Sabah in 1982 through adat kampung (also known as kahwin kampung) or village customs, which is not registered under the Law Reform (Marriage and Divorce Act) 1976. Chia’s father died in 2007 when he was just 11 years old, while his non-Malaysian mother had became uncontactable and untraceable and is believed to have returned to her country of origin, Indonesia.
Sabah Citizenship Case #2: Wong Kueng Hui
Chia’s case is similar to Wong Kueng Hui, a 27-year-old who was also born in Sabah to a Malaysian father and a foreign mother, who is believed to be Indonesian. Just like Chia, he started applying for his citizenship when he turned 12, the year when all Malaysians are eligible to receive a MyKad.
Based on New Naratif’s report, Wong could not produce his parents’ marriage certificate, as it was his father’s second marriage, and it was not registered. As his father had died when he was eight, he could not prove his relations to his father except for his birth certificate and his father’s documents, including the death certificate.
In an unprecedented move, Kuala Lumpur High Court granted him a Malaysian citizenship on 22 October 2019 under Article 14 (1)(b) of the Federal Constitution, whereby every person born in Malaysia, but is not a citizen of any country, can apply as a citizen by operation of law. This decision was appealed by the government, however on 19 January 2022 a three-member bench affirmed this decision declaring that Wong is a Malaysian citizen based on the Second Schedule, Part II under Section 1(e) of the federal constitution.
However, the court decision has been appealed once more on 17 February 2022, spurring possibly another 2-year long wait for Wong’s citizenship.
The Sabahan Context of Statelessness
Based on this two cases, SERATA speaks to two prominent activists who has been working on similar citizenship issues on the ground in Sabah – Asrin Utong, and the founder of ANAK (Advocates for Non-discrimination and Access to Knowledge), Anne Baltazar.
According to Asrin, he has observed a number of adat kampung marriages that happen between Malaysians and people of Filipino or Indonesian descent. This is supported by Anne who has also come across several similar cases in her work, stating that the reason that some couples do this due to lack of legal documentation.
“Only non-citizens who has a permanent resident status, a passport or an IMM13 document can legally get married in the country. Those who are unable to provide such documents resort to kahwin kampung, she said.
IMM13 is a social visit Pass that was last issued in around 1984 for Filipino refugees entering Sabah.
When asked whether stateless issues in Sabah differ from those in West Malaysia, Anne responded that there is a very fine line between the migrant, undocumented and stateless issue in Sabah compared to West Malaysia where it can be much more clearly defined separately.
Anne attributes this disparity to the huge numbers of non-citizens in Sabah as compared to the numbers in West Malaysia, which is stimulated by the vast, porous, borders neighbouring Philippines and Indonesia and the long history of economic trade, migration and the coming of refugees during the civil war in southern Philippines.
“For example, there was a case when a person from Filipino descent was deported to the Philippines but they were not able to find her links to any family in the country and sent her back to Sabah, at the same time, she is also not recognised as a Malaysian. Statelessness is defined in the 1954 Convention Relating to the Status of Stateless Persons as a person “who is not considered as a national by any State under operation of its law,”” explained Anne.
Asrin emphasized that stateless cases in Sabah are mainly due to birth out of wedlock, as most of the children were abandoned by the parents. He also highlighted that because these marriages are unregistered under Malaysian law, thus citizenship of the child is dependent on the mothers’ nationality by default. This is further compounded by late birth registration.
The Endless Battle for Malaysian Citizenship Continues
In their relentless fight to stop more children from claiming their citizenship, the Malaysian government has not yet dropped their appeal against the right for Malaysian mothers to pass their citizenship on to their children due to be heard on 23 March 2022, although three of the mothers have finally just succeeded in receiving citizenship certificates for their children on 21 February 2022.
As to date, the government had gone to court 6 times to stop Malaysian women from conferring citizenship to their overseas born children.
Meanwhile, Wong Kueng Hui has been fighting for his Malaysian citizenship for the past 15 years, and Chia for the past 14 years.
Both Anne and Asrin feel that a positive outcome of the Malaysian mothers’ case may positively affect the cases of the stateless children in Sabah as well.
“The journey to ending statelessness in Malaysia is still a long one and granting Malaysian mothers the right to pass their citizenship on their children born overseas would be one of the first steps to many. Personally, I have not come across many cases such as this in Sabah, there seems to be many more statelessness coming from Malaysian fathers not being able to pass on citizenship to their children who are born to non-citizen mothers due to the marriage not legally registered or recognised. However, we hope that this case will be successful, and it will be a big step towards equal nationality rights in the country,” said Anne.
Let’s all hope for the best come 23 March 2022!
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