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Malaysia's move to amend citizenship laws marks progress for gender equality, but the non-retrospective nature raises concerns.

Women’s advocacy groups have been instrumental in pushing for equal citizenship rights in Malaysia. : Igordoon Primus, Unsplash Unsplash license Women’s advocacy groups have been instrumental in pushing for equal citizenship rights in Malaysia. : Igordoon Primus, Unsplash Unsplash license

Malaysia’s move to amend citizenship laws marks progress for gender equality, but the non-retrospective nature raises concerns.

In Malaysia, a child born overseas can acquire citizenship if their father is a Malaysian citizen. But it’s not the same for Malaysian mothers with foreign spouses. Their child faces a long and difficult battle to gain citizenship rights.

But that inequitable law may be about to change. The Malaysian government is currently considering a proposal to grant equal rights to children born overseas to Malaysian mothers.

The landmark constitutional change showcases the government’s renewed commitment to advancing gender equality. It marks a huge step for Malaysian mothers, who have advocated long and hard for their overseas-born kids to get citizenship.

But the proposal has been met with widespread condemnation.

In particular, critics have raised fears the new amendments, which would not apply retrospectively, would leave thousands of children stateless.

Following in Singapore’s footsteps

Malaysia is among 24 nations worldwide that still have unequal nationality laws preventing mothers from conferring their nationality to their children.

The proposed amendments aim to give both parents equal rights to pass citizenship to their kids born overseas.

But there are a few catches: children will need to take an oath by a certain age to keep their citizenship. Births need to be registered within a year. And the new law won’t help children born before it gets passed.

In contrast, Singapore amended its law in 2004, affording equal rights to mothers, ensuring citizenship for overseas-born children if either parent was a Singaporean citizen by birth, registration, or descent.

Likewise, Nepal‘s House of Representatives last year endorsed an amendment allowing for maternal transmission of citizenship. However, the right is provisional upon declaring the absence of the father, presenting risks — particularly for survivors of domestic violence.

The impacts of being denied citizenship

Malaysia’s proposed amendments stem from the increasing recognition of inequality and discrimination faced by children born to Malaysian mothers, who are currently denied automatic citizenship and subjected to a protracted and uncertain registration

This disparity has denied many children access to education, healthcare, jobs and property ownership.

Non-citizen children are excluded from government schools, restricted from joining the public service and face higher fees for healthcare and property transactions.

This disparity not only delays educational opportunities but also limits employment prospects and access to subsidised healthcare.

It also forces some Malaysian mothers to remain abroad or remain dependent on their foreign spouses for their children’s legal status.

Two key criticisms remain

Women’s advocacy groups such as Family Frontiers and the Joint Action Group for Gender Equality have been instrumental in pushing for this reform. UN experts have also criticised Malaysia for the discriminatory law.

The 2021 landmark case against gender bias in citizenship laws, which ruled that children born overseas to Malaysian mothers should automatically receive Malaysian citizenship, has pressured the government to address this issue. However, the Court of Appeal overturned this decision in 2022.

The government did commit in early 2023 to amend the laws.

And while the proposed amendments represent a substantial step towards rectifying these inequities, they have attracted criticism for failing to address the status of children born before the amendments take effect.

The government has also been criticised by civil society organisations for bundling the proposed change with five other regressive amendments that would remove existing constitutional rights for vulnerable children.

These organisations are calling on the government to separate the amendment granting equal citizenship rights from these other regressive amendments, which could increase statelessness.

Advocates and judges both advance women’s rights

If the amendment does pass, it will be one of several recent legislative reforms brought about by a combination of women’s rights advocates, and judges’ progressive interpretations of old laws.

In recent years the Women’s Aid Organisation voiced the need for changes to the Employment Act 1955 to provide stronger protections for women in the workplace.

The organisation’s “Voices of Malaysian Women on Discrimination & Harassment in the Workplace” survey, conducted in 2020, found 56 percent of Malaysian women have experienced workplace gender discrimination. Insights from more than 1000 women addressed issues such as inappropriate questions about marital status, being overlooked for promotions in favour of less qualified colleagues and being assigned gender-specific tasks.

This survey played a part in the passing of the Employment Act 2022, which provided for an increase in maternity and leave; flexible working arrangements; and changes to sexual harassment and discrimination laws.

The judiciary has also increasingly played a crucial role in advancing women’s equality — by interpreting laws on a gender-neutral basis. This has included interpreting other laws in a way that advances women’s status, as the Constitution guarantees equal rights to all citizens, regardless of gender.

One example was the case of a Malaysian mother who challenged her children’s religious conversion certificates because they were issued in contravention of the law. The court held that such conversions were unconstitutional and violated the rights of the non-converting parent.

In a separate case, a teacher took a local education district to court after it revoked her job offer as a temporary teacher after learning she was pregnant. She won the court case and was awarded MYR 300,000 (US$63,674) in damages.

These cases have boosted women’s rights in Malaysia.

There have also been instances where the court did not decide in favour of women, but the decision nevertheless fuelled the action of the women activists to fight for gender equality.

Malaysian courts refuse to hold private companies liable for breach of constitutional rights — as in the case of a former Malaysia Airlines flight attendant who sued her employer after she became pregnant and refused to resign. That case attracted attention from women’s advocacy groups, which ultimately led to the amendment of the Employment Act in 2012.

Engaging the public for change

As society’s perspectives continue to evolve, lawmakers are increasingly urged to consider amending the Constitution to ensure equal citizenship rights for all children, regardless of whether their Malaysian parent is the mother or father.

In doing so, they will face several challenges — including reconciling societal expectations with legal imperatives.

Public engagement, including through policy dialogues involving advocacy groups, government officials, and lawmakers, could play a pivotal role in refining legal reforms to ensure they are comprehensive and culturally sensitive to Malaysia’s unique demographic, historical, and cultural contexts.

These dialogues would enable the careful examination of specific challenges, ensuring reforms effectively address gender discrimination while respecting Malaysia’s societal values.

Ensuring the government is committed to establishing strong monitoring systems is equally vital. This would guarantee that progress in implementing reforms is tracked efficiently.

In addition, the government would be wise to consider partnering with advocacy groups in the process of amending the Constitution. Proactive involvement with those groups could ensure reforms effectively address issues of discrimination while avoiding unintended loopholes.

Similarly, the Malaysian government could engage with international human rights bodies, which provide valuable external perspectives to assist Malaysia in aligning its legal framework with global standards without compromising its cultural integrity.

Ultimately, by mobilising grassroots advocacy, strategic legal action, and comprehensive public education, Malaysia can continue to enhance its equitable citizenship rights system — ensuring fairness for all citizens, irrespective of gender, while maintaining constitutional legitimacy.

Nurus Sakinatul Fikriah Mohd Shith Putera is a law lecturer specialising in interdisciplinary law.

Hartini Saripan is an associate professor of law specialising in legal education, governance, cyber security law, and technology law.

Norazlina Abdul Aziz is a senior law lecturer in constitutional law and human rights.

Rafizah Abu Hassan is a senior law lecturer specialising in family law, criminal justice, and administration of estate.

All authors are from the Universiti Teknologi Mara (UiTM), Malaysia.

Originally published under Creative Commons by 360info™.

Editors Note: In the story “Women voters” sent at: 24/06/2024 08:43.

This is a corrected repeat.

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