Statelessness Working Paper Series No. 2017/9 1. Introduction The Chairperson of the UN Committee on the Rights of the Child has acknowledged Malaysia as one of the countries which have shown significant reduction in the number of stateless persons in their territories, attributing this to the positive impact of UNHCR’s #Ibelong Campaign. 2 According to UNHCR, the initiatives of a local NGO—the Development of Human Resources in Rural Areas (DHRRA)—has helped reduce the estimated number of stateless persons in Malaysia from 40,000 in 2009, to 12,368 persons as of September 2017.3 Nonetheless, obstacles as fundamental as getting official recognition of the existence of stateless persons and the related complexity in mapping their presence especially in East Malaysia, 4 remain the delicate challenges for actions to prevent and resolve statelessness in Malaysia. With the exception of the group of stateless persons of Indian origin, whose statelessness and lack of (identity) documentation was recently pointed out in a policy document issued by the Government,5 other diverse categories of persons affected by statelessness, or rather at risk of statelessness are by and large perceived as irregular migrants and/or non-citizens. These categories include undocumented stateless refugees and asylum seekers and their children, people of undetermined nationality in the context of mixed migration and the maritime community of Sama Dilaut or Bajau Laut in Sabah, together with innocent children denied citizenship by operation of law due to being born outside of wedlock. Despite having a strong jus soli safeguard6 against statelessness for children born on its territory who would otherwise be stateless,7 there are a number of cases which so far have unfolded a rather narrow prospect of its practical utility in averting childhood statelessness. 2. Official Recognition of Statelessness and Its Identification In Malaysia, the existence of statelessness is frequently publicly refuted, making it a non-issue in the eyes of the government.8 In other instances, some sections of the government make inconsistent 2 Institute on Statelessness and Inclusion, The World’s Stateless CHILDREN, Wolf Legal Publishers 2017, p 138 UNHCR, ‘Ending Statelessness in Malaysia’, http://www.unhcr.org/en-my/ending-statelessness-inmalaysia.html accessed 10 November 2017 4 Ibid. 5 Prime Minister’s Office, ‘Malaysian Indian Blueprint Blueprint’, http://mib.my accessed 5 September 2017, p 117 6 A safeguard against statelessness refers to the right to a nationality provided in a state’s nationality legal framework for every child who would otherwise be stateless - due to his/her inability to acquire a nationality by descent or place of birth. A child who would otherwise be statelessness includes someone born to parents who are stateless or who are not able to confer nationality upon the child, due to factors like gender discrimination in nationality laws. Foundlings or children who are abandoned and whose parents’ identity are unknown are commonly safeguarded against statelessness through a legal provision that confers nationality via the presumption that the child was born in the state in which he/she is found to parent(s) who hold the state’s nationality. Some safeguards are conditional and may not be fully inclusive. For instance, the right to a nationality may be subject to the condition that the parents are stateless and hold a certain legal residence status. For further discussion, see Institute on Statelessness and Inclusion, The World’s Stateless CHILDREN, Wolf Legal Publishers 2017, Chapter 11 7Section 1(e) of the 2nd Schedule of the Federal Constitution (to be read with Article 14(1)(b) of the Federal Constitution) stipulates “every person born within the Federation who is not a citizen of any other country is a citizen of Malaysia by operation of law”. Not only the mode of conferral of nationality prescribed is ex lege or automatic, the safeguard is also subject to no further requirement under the law. 8 Catherine Allerton, ‘Contested statelessness in Sabah, Malaysia: Irregularity and the Politics of Recognition’ (2017) 15(3) Journal of Immigrant and Refugee Studies 250-268; Malaysian 13th Parliament, House of Representative, Third Term, First Meeting, No. 10, 24 March 2015; N.A., ‘No Stateless people’ Daily Express (Sabah, 20 April 2015) <http://www.dailyexpress.com.my/news.cfm?NewsID=99073> accessed 30 August 2017 3 5