Homegrown Statelessness in Malaysia
WHO ARE STATELESS IN MALAYSIA?
The following sections identify six groups of persons in Malaysia that are
stateless. 60 Five of the six groups can be considered to be administratively
stateless persons, while the last group would include genuine stateless persons.
In categorising stateless persons in this way, the article does not provide
nuanced legal opinion as to stateless persons eligibility or entitlement to
citizenship. Nevertheless, in many of the cases, on the face of the law in
Malaysia, persons identified in five of the categories appear to meet the legal
requirements for citizenship but face administrative or legal barriers from
obtaining citizenship. These barriers as well as the potential reasons why people
remain stateless are discussed in further writing and are outside the scope of this
paper.
The difference between the five groups and the last group is the existence
(among the five groups) of a genuine and effective link to the state by birth,
long-standing residence in the state and/or a parent who has Malaysian
citizenship. In some instances, however, the sixth group may also contain cases
of stateless persons who also have an effective and genuine link to Malaysia. The
table in the appendix sets out the types of stateless cases that were identified in
this study and what follows is a discussion of each category. 61
A
Persons with Long-standing Residence Since Pre-Independence and Their
Descendants
This category involves persons who have been living in Malaysia prior to
Malaysia gaining independence on 31 August 1957 (Merdeka Day) and forming
a federation on 16 September 1963 (Malaysia Day). Subsection 14(1) of the
Federal Constitution explicitly provides that every person born before Malaysia
Day who was a citizen of the Federation are automatically citizens. 62 As well, ss
16 and 16A of the Federal Constitution provide, in general, citizenship by
registration to persons who were born in Malaysia before Merdeka Day where
they can show they have resided in Malaysia seven years preceding the date of
application, they intend to reside permanently in Malaysia, ‘[are] of good
60
61
62
It is important to note that there are various reasons why the six groups of stateless persons
in Malaysia find themselves stateless; there are political, economic, social and other factors
that inform the vulnerability of this population. This is outside the scope of this paper but a
brief overview of why stateless persons are vulnerable is found in other writing. See, eg,
Catherine Allerton, ‘Statelessness and the Lives of the Children of Migrants in Sabah, East
Malaysia’ (2014) 19(1–2) Tilburg Law Review 26; Avyanthi Azis, ‘Urban Refugees in a
Graduated Sovereignty: The Experiences of the Stateless Rohingya in the Klang Valley’
(2014) 18(8) Citizenship Studies 839; Linda Lumayag, ‘A Question of Access: Education
Needs of Undocumented Children in Malaysia’ (2016) 40(2) Asian Studies Review 192.
Where there was a case that could fit into more than one category, an evaluation of the
dominant reason why the person could not obtain citizenship was identified. For example,
while many cases were affected by the lack of documentation, if the reason for statelessness
also was the child was born prior to the parents getting married, the lack of marriage was
seen as the dominant reason. It was only those cases that were solely premised on lost or
missing documentation and no other reason that were counted in the documentation
category. As well, many lawyers, stateless persons and NGO persons discussed the same
case with me. I counted the case once, despite the fact that many persons may have brought
it to my attention. Where the case was brought up by the stateless person, this is where the
case is counted. In other circumstances, I counted the case with the person who could give
me the most details about the case.
Federal Constitution (Malaysia) s 14(1).
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