Kuala Lumpur, Malaysia – After a decade in the United States, Aniza Ismail returned to Malaysia in 2009 with her two daughters. Recently separated from the girls’ Indonesian father, the 50-year-old wanted to bring them closer to her extended family and equip them with a better understanding of Islam.
But despite the fact that Aniza is Malaysian and the family has lived in Malaysia for 12 years, her daughters are not Malaysian.
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This is because the girls were born outside the country. Malaysian women married to foreigners are unable to pass their citizenship to their children born abroad because the constitution only affords the right to Malaysian men.
“Why do fathers so easily have the right, but not mothers? My two eldest daughters who were born outside Malaysia can’t get citizenship, but my youngest born in Malaysia automatically gets citizenship. Why the difference?” Aniza asked.
Article 14(1)(b) of Malaysia’s constitution gives fathers the automatic right to confer citizenship on their children born abroad – but omits any mention of mothers.
In December 2020, local rights group Family Frontiers and six other Malaysian mothers with non-Malaysian spouses and children challenged the constitutionality of the clause in the courts, asking that judges interpret it in line with the principle of gender equality.
Despite a High Court ruling in the mothers’ favour last September, the government has continued to oppose their case. The outcome of its appeal against the High Court decision is due to be announced on August 5.
The Malaysian government ratified the Convention on the Elimination of All Forms of Discrimination against Women (CEDAW) in 1995 and amended its constitution in 2001 to enshrine the principle of gender equality, but it made a reservation on matters dealing with nationality.
According to global rights group Equality Now, Malaysia is one of just 28 countries that still prevent women from passing their nationality to their children on an equal basis with men. A United Nations report (PDF) said such laws reflect the patriarchal view that fathers should have priority rights over their children in a marriage.
For decades, Malaysian mothers have had to rely on Article 15(2) of the constitution – which allows anyone under the age of 21 to apply for citizenship, as long as one parent is Malaysian – to try to secure citizenship for their children born abroad.
However, unlike Article 14(1)(b) for fathers, the success of an application under Article 15(2) is neither automatic nor guaranteed. Granted at the discretion of the home ministry, approvals are rare.
The home minister revealed during a parliamentary session in March that just 117 of 4,870 citizenship applications by children born overseas to Malaysian mothers had been approved since 2013, while 1,728 were rejected, and the rest had yet to be decided.
The procedure is also vague and time-consuming. Experiences shared with Family Frontiers show that applications can take years to process, and mothers are often not provided with reasons for rejection or instructions on how to reapply.
Since 2009, Aniza’s application has been rejected three times and she is still waiting for an answer on her fourth, which dates from 2017. Her two eldest daughters, now 20 and 16 years old, have only been able to stay in the country on student visas.
The unequal law has made it difficult for mothers to reconcile the needs of their foreign-born children with their own needs, their partners’ needs – and for some, the needs of their Malaysian-born children.
A mother may feel she has little choice but to remain in the country of her child’s father, even if it means staying in an abusive marriage, to avoid being separated from her child.
If she chooses to bring her child home with her to Malaysia, she has to pay more for healthcare and education because her child is considered a foreigner. There is also the inconvenience of visa runs – as “long-term social visit” passes (for children below the age of seven) and student visas usually have to be renewed annually.
Jennifer* was born in Indonesia – her father’s homeland – in 1998, while her elder sister was born three years earlier in Malaysia. Her sister is Malaysian; she is not.
“I’ve always felt a kind of divide between me and my family. My mum and my sister are Malaysians. They can stay here as long as they like. They will be together without thinking that they may be forcibly separated,” the 24-year-old told Al Jazeera. “For me, it’s different.”
Around the time of her birth, her parents’ relationship was deteriorating amid challenging financial circumstances, and her mother was unable to return to Malaysia.
Other women have not always been able to return home to deliver their babies because of pregnancy complications, the needs of their other children, or job commitments.
Such hardships have been exacerbated over the pandemic as countries imposed extended travel restrictions, often leading to the protracted separation of binational families.
It was during this time that Family Frontiers and the six mothers took their cause to the courts. A change of law through parliament also looked increasingly unlikely given the political uncertainty that continues to plague Malaysia due to successive changes in government in the past two years.
Just before COVID-19 broke out, Aniza’s eldest daughter, then 18, had her student visa expire while waiting for her high school exam results. Aniza applied for a three-month social visit pass for her in the meantime, but when it expired in April 2020, she was told that her daughter could not extend it.
She would have to leave the country for 30 days and re-enter to reapply. “They asked me to send my kid out during the pandemic. What is that?” Aniza said.
To remain in Malaysia during the pandemic, her daughter had to immediately enrol in a private university, for which she was able to apply for a student visa without leaving the country.
Last September, the Kuala Lumpur High Court decided in the women’s favour in a landmark judgement, interpreting the constitution to rule that Malaysian mothers can pass on their citizenship to their children born overseas, on the same automatic legal basis as fathers under Article 14(1)(b). The judgement applies to all Malaysian mothers in similar circumstances.
The government appealed the High Court decision and attempted to postpone its implementation pending the appeal, but the request was rejected in December last year.
The government has since issued the six mothers who are plaintiffs in the case citizenship documents for their foreign-born children. But Family Frontiers says the authorities are dragging their feet on doing the same for other mothers.
On July 19, the home minister revealed in parliament that there had been 591 submissions under Article 14(1)(b) from children born overseas to Malaysian mothers between 2021 and July this year. Of these, 33 have been resolved, but Family Frontiers committee member Chee Yoke Ling says this does not necessarily mean the women have received their children’s citizenship documents. Meanwhile, 558 submissions are still in process.
Jennifer had only ever lived in Indonesia before she arrived in Malaysia in 2016 with her mother and sister to start anew. At the time, she was 17 and her parents’ marriage was fraying. Her father remained in Indonesia.
She managed to stay for a year in Malaysia on a student visa before returning to Indonesia to bide her time until she could afford to continue her bachelor’s degree back in Malaysia, where her mother and sister had settled into new jobs.
But days after she returned, she and her father got into a heated argument. As he raged outside her room that night, she held a knife under her pillow. “When he gets angry, he can get very physical. He has a history of clinical depression,” she said.
She was kicked out of her father’s house and rented a flat for a few months with money her mother and sister sent her. In late 2017, she returned to Malaysia on a three-year student visa, which, together with her university fees, cost almost 80,000 ringgit ($17,950). Then, that visa lapsed too – in the middle of the pandemic.
The home minister has previously said that the government appealed the High Court’s decision so it could buy time to amend the constitution in favour of mothers, beginning with the formation of a new parliamentary committee to study the matter in December last year.
The government maintains that the 2001 amendment on gender equality does not extend to nationality and that matters of citizenship are outside the jurisdiction of the courts.
However, Chee says there has been no sign of progress from the government and that Family Frontiers has not been consulted. “On one hand, they keep delaying the court case and are not honouring the judgement. At the same time, they are not moving on the constitutional amendment,” she said. “So we just don’t see good faith, in every corner.”
Some find the government’s intransigence on the matter perplexing, when ministers across political and ethnic lines have publicly supported the mothers.
“I don’t understand this. Do the women in this country have more flaws than the men?” Azalina Othman Said, who heads the Parliamentary Select Committee on Women, Children and Social Development and is part of the ruling coalition, asked in parliament last year.
Noor Aziah Mohd Awal, the children’s commissioner of Malaysia’s Human Rights Commission, says the government’s opposition reflects discriminatory attitudes towards Malaysian women who marry foreign men. “It’s a mindset from pre-independence days – that women will be exploited, there will be marriage of conveniences, that kind of thing.”
Malaysia’s deputy home minister previously said that a child born overseas might hold dual citizenship – illegal in Malaysia after an individual reaches the age of 21 and has to choose – and so pose a national security threat.
“What national threat? They are born from a Malaysian mother, same as if they were born from a Malaysian father. Why are the father’s kids not considered a national threat?” Aniza said.
Recovering well from COVID & just emailed my latest interview responses for ending Malaysia’s Unequal Citizenship Laws.
— Tehmina Kaoosji (@TehminaKaoosji) August 1, 2022
Mothers might be able to tolerate discrimination against ourselves but we can’t tolerate our children being discriminated. We want them to have their equal rights in their Mother-land. #SayaJugaAnakMalaysia #ManaDokumenKami pic.twitter.com/k28Z4aE3Gb
— Esther A_Malaysian_Mother (@EstherJohor) June 11, 2022
Meanwhile, the unequal law is jeopardising the long-term prospects of many women and their children. Many lives hang in the balance.
Jennifer is running out of ways to stay in Malaysia. After her last student visa expired amid the pandemic, she tried to secure a work visa. But the job market was bleak, and not many companies were looking to hire foreigners as it would cost them more. She was also unable to apply for jobs in public sector and government-linked companies.
She had no choice but to apply for another student visa to stay in Malaysia – this time, for a master’s degree. She felt guilty using up more of her mother’s savings, but she is not allowed to work on a student visa to relieve the burden.
A permanent residency, too, seems out of reach; she was told by the authorities that she – the daughter of a Malaysian and over the age of 18 – would have to marry a Malaysian to be eligible. Aniza was advised the same about her eldest daughter.
“I am basically buying time to be here. It’s so expensive, emotionally and financially. Every day I wake up, I am closer to being separated from my loved ones,” Jennifer said.
Whatever this week’s ruling by the Court of Appeal, Chee expects the case will make its way eventually to Malaysia’s highest court.
But even if the Federal Court ultimately decides in favour of Family Frontiers and the six mothers, it is already too late for Jennifer since she is over the age of 21 and legally an adult.
If she does not find a job in Malaysia by November 2023 – which is when her current visa expires – Jennifer will have to find her own way in Indonesia.
Her parents divorced in 2019, and she has not been in contact with her father since she left his house.
“It’s so weird. I don’t feel like I have a community or roots there, though I lived there for 17 years of my life. I was baptised here in Malaysia. My loved ones are all here,” she said.
*Names have been changed to protect the identities of some of those affected.