Homegrown Statelessness in Malaysia
examination suggests, should be on the types of people subject to the plight of
statelessness and why. The problem of statelessness is home-grown, indigenous,
and one borne by people who have deep roots to the country of Malaysia. The
five categories of stateless persons have genuine, effective and significant links
to Malaysia. Their link is substantiated by their birth in the federation, and the
fact that they are stateless. Further proof of an effective link can point to a
‘blood’ or legal connection through a parent where necessary but the Federal
Constitution does not necessarily require this — the fact of birth in Malaysia
with the fact that one is stateless after the first year of one’s birth, in law, is
sufficient.
C
There are Built-In Restrictions in the Law for Foreigners
The third reason is that there are built-in clear restrictions on who and how
stateless persons can acquire citizenship. Public discourse in Malaysia reveals a
guarded approach to the stateless issue due to a misunderstanding that if
citizenship is resolved for any stateless person, then all stateless persons will
have access to citizenship no matter what link that person may have to Malaysia.
The laws governing citizenship in Malaysia, however, provide restrictions on
how foreign nationals may obtain citizenship. For example, migrants and
refugees do not qualify automatically by virtue of the fact that they were not
born within the Federation. Further, they do not have a Malaysian parent. They
must proceed through the naturalisation process if they have no genuine or
effective link to Malaysia. For migrants or refugees who marry a Malaysian
citizen, there are opportunities for registration as a citizen, but even that process
has requirements that the migrant must meet (including number of years of
residence; speak Malaysian sufficiently and others) to indicate their genuine and
effective link beyond marriage to a Malaysian citizen. 132
Legal practitioners may point to the children of migrants or refugees who are
born in the Federation. It is important to point out that citizenship by operation
of law only applies to those born in Malaysia that have no other citizenship.
Children who have no parent who is a Malaysian citizen only qualify if they are
also stateless following the first year of their birth. There certainly may be cases
where there are migrant children who are entitled by operation of law to
citizenship but this is because they are stateless and also have no hope of
obtaining citizenship from a country other than Malaysia. Substantiating this
kind of statelessness is beyond the scope of this paper. The mere opportunity to
obtain citizenship elsewhere is not the same as being a citizen of another
country. In this sense, while migrants themselves may not be entitled to argue
they have a genuine and effective link (unless they have shown long-standing
residence), their children may be considered to have such a link by virtue of their
birth within Malaysia. The mechanics of how such children (and their parents)
may navigate the process to obtain citizenship by operation of law or by
naturalisation is outside the scope of this paper.
CONCLUSION
One academic was interviewed for this exploratory study and indicated that
citizenship is a sensitive issue politically in Malaysia, even during the conception
132 Federal Constitution (Malaysia) art 19.
123