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Stateless Children in Sabah

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Sabah

Photo Credit: Free Malaysia Today

by Joti Kohli

Statutory Obligations

Towards the end of 2014 we witnessed intense discussion in the media on providing the stateless children in Sabah with birth certificates so that they can be entitled to primary education.  This issue is a controversial one and while there are some legitimate concerns that people of Sabah have, we have to consider Malaysia’s statutory responsibilities as well as the public’s misconceptions on this issue to reach creative and constructive solutions.

First of all, at the expense of being repetitive[i], it is apt to remind ourselves of Malaysia’s responsibilities both in terms of the local statutes and its international commitments to Statelessness.  There are a number of international instruments Malaysia has ratified that ensure a child is not denied her/his nationality.  In the case of The Convention on the Rights of the Child (CRC) and The Convention on the Elimination of All Forms of Discrimination against Women (CEDAW) Malaysia has maintained reservations to the articles that grant this right.  The articles pertaining to the right to identity or nationality within the international instruments are as follows:

  1. Article 7 of the CRC clearly states a child’s right to a nationality, but Malaysia maintains reservation to this article.
  2. Article 9 of CEDAW states there should be no gender discrimination when it comes to transferring nationality to children and Malaysia maintains a reservation to paragraph 2 of this article.
  3. Article 15 of the Universal Declaration of Human Rights highlights that “everyone has a right to nationality” and nobody should be deprived of or denied this right.
  4. Article 18 of the Convention on the Rights of Persons with Disabilities provides the right to a nationality to persons with disability, and finally
  5. Article 7 of The Covenant on the Rights of the Child in Islam also clearly states the right to name and nationality:
    1. “A child shall from birth, have right to a good name, to be registered with authorities concerned, to have his nationality determined and to know his/her parents, all his/her relatives and foster mother.
    2. State parties to the Covenant shall safeguard the elements of the child’s identity, including his/her name, nationality, and family relations in accordance with their family laws and shall make every effort to resolve the issue of statelessness for any child born on their territories or to any of their citizens outside their territory.
    3. The child of unknown descent or who is legally assimilated to this status shall have the right to guardianship and care but without adoption.  He shall have a right to name, title and nationality.”

Malaysia is not a signatory to the 1954 Convention relating to the Status of Stateless Persons, which highlights a clear framework to protect stateless people. Nor is it a signatory of the 1961 Convention on the Reduction of Statelessness which provides guidelines for States to align their nationality laws with international standards.  Yet the above mentioned articles to which Malaysia maintains no reservation clearly bind Malaysia to respect the right to name and nationality.

Domestically, Malaysia is hailed in the international arena for Article 14 of its constitution.  Article 14(1)(b)Part II Section (1)(e) of the Federal Constitution guarantees the right to nationality to a child not only through his/her parents but also if the child would otherwise be stateless.

Article 14(1)(b) states:

“every person born within the Federation of whose parents one at least is at the time of the birth either a citizen or permanently resident in the Federation,“or“ every person born within the Federation who is not born a citizen of any country,”if born on or after Malaysia day to Malaysian citizenship by operation of law.”

Mohamad bin Alamin who is the Sabah Native Affairs Council (MHEANS) President and Bongawan Assemblyman stated at the State Legislative Assembly:

“….the issuance of birth certificate to children of non-citizen parents is a non-issue and should not be politicised……… existing laws on the issue have clearly explained sufficient provisions, as stipulated in Article 123 of the Sabah Birth and Death Registration Ordinance 1951 and Section 7 of the Malaysia Birth and Death Registration Act 1951………. These laws stated that a child born in Malaysia with either one parent is a Malaysian or either one or both parents having at least a Permanent Resident (PR) status, then the child is eligible for citizenship.”[ii]

The protection of children who could be at risk of statelessness under Article 14 (1) (b) of the Constitution together with the laws in Sabah can protect children of mixed marriages, taking care of a large segment of children in limbo on their right to citizenship.  The problem is that in practice these laws are not safeguarding many children’s right to identity and complex procedural matters further exasperate the situation.  Aligning procedures to a strengthened nationality law in accordance to Article 14(1)(b) of the Federal Constitution will contribute tremendously to the reduction of statelessness.  The future of thousands of children who will otherwise be denied a healthy and just future is at stake and so it is incumbent upon Malaysia, based on its international and statutory responsibilities, to first and foremost honour these commitments and work towards reducing the risk of statelessness among children.

Addressing Genuine Concerns

The successful implementation of the above laws will depend on how authorities address public misconceptions.  As mentioned above while there are legitimate concerns regarding the increasing numbers of migrants, stirring up fear or blaming all social ills on the migrant/refugee communities is both removed from facts and damaging to the nation generally.

It should be emphasized that of the 3 categories[iii] of foreign workers in Malaysia, many are legally resident in the country and are law-abiding.  It is the illegal undocumented category that is the most vulnerable about whom misconceptions abound.  To understand how to address this issue one has to start with numbers.

What are the Figures?

Since it is difficult to find reliable figures we have to rely on government figures available to us.  While cognizant of the fact that these figures might not be providing the full picture, they are a good point to start with.  Some figures quoted in the newspapers are as follows:

  1. “According to the Home Ministry’s records, there were 14,095 children whose citizenships were yet to be determined between 2003 and April this year [2014]. Most of them 87.7pc were in Sabah (8,128)….”[iv]
  2. Between 2008 and April 30 this year [2014], the Home Ministry received applications from 9,372 people to become Malaysian citizens.[v] (This is not only in the state of Sabah.)
  3. Penampang MP Darell Leiking quoted the 2010 census figure for Sabah by the Statistics Department where out of the 3,117,405 million population, 867,190 million were non-Malaysian.  And between 2007 and 2012, 122,882 births were registered by foreigners.[vi] (How many more unregistered foreigners exist and how many more births go unregistered is of course not known)

Clearly the figures are in the hundreds of thousands and Bar Council assistant director Sumitha Shaanthinni Kishna stated that authorities acknowledge there are 2 million documented foreign workers in the country with another 2 million who are undocumented.[vii]  There is no question that the plight of the many homeless and abandoned children of these foreign workers needs urgent attention.

Aren’t a lot of Migrants Criminals?

With figures being so high often when even a small percentage of this community engages in criminal activities, it leads the public to conclude that many in the migrant community are criminals.  While there might be a rise in criminal activity among the migrant community, it is simply a desperate means for survival rather than them being hard core criminals.

A 2013 article in Free Malaysia Today states:

“Although all of this columnist’s friends and all twenty of the people interviewed by this columnist opine that most of the crimes are committed by the jobless/unskilled foreigners here, this was not so as revealed by Deputy Home Minister, Wan Junaidi Tuanku Jaafar who announced in Parliament on July 9, 2013 that only 1% of the crimes are committed by these foreigners.”

“Now this is certainly much more worse than what we have come to expect because it simply means that 99% of the crimes are committed by Malaysians!”[viii]

These figures and the opinions of the people interviewed in the above article is a clear indication that misconceptions about crime are prevalent among the public which are played upon by authorities and media alike to alienate and victimize a vulnerable community.

Border Security and Being Swamped with Migrants

 Every nation has national security concerns and ensures to keep the influx of migrants in check.  The state of Sabah is very vulnerable to a huge influx of migrants.  This should not be confused with the foreign population that are fleeing a conflict.  They are refugees and should be granted protection based on humanitarian grounds.

In handling a heavy influx of migrants, most countries resort to border controls and raids inside the country to detain and deport those entered illegally.  Rarely are resources diverted towards transnational criminal organizations who smuggle people and traffic children.  For Malaysia a transnational approach and cooperation on an ASEAN level is the way forward.

Together with this Malaysia can introduce a quota system based on its labour needs and introduce standards suggested by The International Labour Organization (ILO) to protect migrants from exploitation.

Economic Burden, Legalization and Citizenship

 In 2013 a study by the Center for American Progress concluded that immigration reform can raise the pace of economic growth by nearly one percentage point in the near term increasing the GDP per capita by $1500 and can also help reduce the deficit.[ix]

This study analysed the 10-year economic impact of immigration reform under three scenarios. The first scenario assumes that legal status and citizenship are both accorded to the undocumented in 2013. The second scenario assumes that the unauthorized are provided legal status in 2013 and are able to earn citizenship five years thereafter. The third scenario assumes that the unauthorized are granted legal status starting in 2013 but that they are not provided a means to earn citizenship…. The conclusions point to a staggering benefit to the country in all 3 scenarios as seen in the graphic below.[x]

Immigration

xi.

A similar study if conducted in Malaysia can provide insights into the positive contributions made by migrants that go completely unnoticed.  Such a study will allay the fears that migrants are simply here to change the demography of our state, engage in criminal activity and increase other social ills in the country.

The committee looking into the implementation of the recommendations made by RCI under the chairmanship of Sabah Deputy Chief Minister, Joseph Pairin Kitingan would benefit tremendously from such a study.

There is no doubt as to how difficult this task is for policy-makers.  If we start by honouring our statutory obligations and make informed decisions based on facts rather than fears, we are bound to find creative solutions that benefit the children and the nation.

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[i]This information was first provided in February 2014 in an article titled, UNHCR-Workshop On Statelessness, which  you can find on our website at http://voc.org.my/blog/blog/2014/02/18/unhcr-workshop-on-statelessness/

[ii] Daily Express. (November 12, 2014) Birth certs to stateless kids non-issue: YB. Retrieved from http://www.dailyexpress.com.my/news.cfm?NewsID=93251

[iii] a) Expatriates who are employed in executive and high managerial and technical jobs.  They are issued employment passes and work legally in the country.  b)        Legal Migrant Workers who are issued a temporary employment pass by the Department of Immigration and are employed in low and unskilled jobs. (included in this category are the Filipinos who came to Sabah fleeing from war and conflict in the 1970s and are now included in the migrant category because many have remained in Sabah).  c) Undocumented Migrant Workers who either enter the illegally or have overstayed their temporary employment pass and are employed in low and skilled jobs.  They are the category with no protection under the law and vulnerable to exploitation and abuse.  (included in this category are the Filipinos who came to Sabah fleeing from war and conflict in the 1970s and are now included in the migrant category because many have remained in Sabah).

[iv] Daily Express. (November 19, 2014).Sabah has the most stateless kids: Minister. Retrieved from http://www.dailyexpress.com.my/news.cfm?NewsID=93630

[v] ibid.

[vi] Daily Express. (November 5, 2014). It’s against sovereignty of Sabah: Leiking. Retrieved from http://www.dailyexpress.com.my/news.cfm?NewsID=92981

[vii] The Star. (November 3, 2014). Young with a bleak future. Retrieved from http://www.thestar.com.my/News/Community/2014/11/03/Young-with-a-bleak-future-Migrant-children-do-not-have-access-to-basic-education-and-healthcare/

[viii]Free Malaysia Today. (July 13,2013). Rising crime rate cause for worry. Retrieved from http://www.freemalaysiatoday.com/category/opinion/2013/07/13/rising-crime-rate-cause-for-worry/

[ix] Center for American Progress. (March 2013). The Economic Effects of Granting Legal Status and Citizenship to Undocumented Immigrants. Retrieved from https://www.americanprogress.org/issues/immigration/report/2013/03/20/57351/the-economic-effects-of-granting-legal-status-and-citizenship-to-undocumented-immigrants/

[x]ibid.

[xi]ibid.

 

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