Definition
According to Article 1(1) of UNHCR 1954 Convention, stateless is defined as “who is not considered as a national by any State under the operation of its law.” This definition is accepted internationally by many States around the globe.
The term marginalized children are commonly used as well in discussing this issue. Marginalized children are defined as children who are outside and peripheralized from the mainstream group or centre of the society. Among the groups of marginalized children is children born in the disadvantage family as asylum seekers, refugees, illegal immigrants, undocumented parents, drug abuser and trafficked children. This results them being stateless.
Groups of statelessness
As the definition had been outlined previously hence there are several groups of people who fit into the definition.
In the constitutional law, the general principle is that a child will follow the citizenship of his/her father of a valid marriage. Children born out of wedlock, on the other hand follow the citizenship of their mother. However in the case whereby the mother is not Malaysian while the father is, the child is vulnerable to be stateless following his/her mother.
Abandoned children placed in government-run welfare homes can also be a stateless. In some cases, the children are not able to validate their Malaysian citizenship as they are without possession of birth certificate or any other form of identity documents. There is an instance when even if they are being issued with birth certificate, it stipulated their citizenship status as non-citizen. Following that, at the age of 12, they then have to apply for Green MyKas which was carries the status of temporary residents and “persons of undetermined citizenship”. Finally at the age 18 when they are released from the shelter homes, they are left without citizenship determination for failure to renew their green card or to bring required evidences and documents or financial constraints. As a result they are left hanging – become undocumented therefore held as stateless in the eyes of the law. (Regulation 5(3) , 1990 ) (Regulation 5(3) , 1990 ) (Regulation 5(3) , 1990 ) (Regulation 5(3) , 1990 )
Children of refugees and migrants workers are also considered as stateless as their births were not registered at their respective consulate and were unable to trace their family’s country of origin. This may happen in the instance where the parents were deported back to the original country and leaves the children behind here in Malaysia or where the parents themselves are stateless as well. This situation happens particularly in Sabah whereby the Indonesian and Filipinos immigrants mainly stay. Regarding the embassies of the mentioned countries, the Philippine government does not place their embassy on Sabah making it harder to register the births. On the other hand, there is an Indonesian embassy placed in Tawau and Kota Kinabalu. However the difficulty arises financially as the cost for these people to go there is quite constraining.
Rohingya refugees from Burma, Malaysians of Indian descent and members of the traditionally nomadic, boat-dwelling Bajau Laut/ Sama Dilaut community north Borneo are other groups that are described as stateless in Malaysia as well.
When issue started to arise
The issue of statelessness had stormed the world even before the World War II. In this era when the practice of slavery was ongoing, the number of stateless people is large. The citizens of the conquered territories are taken into the possession of the winning army and been brought back to the new country thus denying their original citizenship. However, throughout the years, more organizations are established in giving protections to the stateless people. Among the earlier ones is the Nansen International Office for Refugees 1930 in charge of helping refugees by giving them identity cards.
Taking the context of Malaysia, it is quite challenging in tracing back the earliest moment when the issue of statelessness arise since there was no documents recorded. For example, the stateless group of Bajau Laut in Sabah which had been presiding there for over hundreds of years ago even before the arrival of British North Borneo Chartered Company on 1878. During the coming of the Chinese and Indians in the past with the economical objective, the issue is of statelessness during that time is not sparked as much since the British Colonies did not found the coming of them to constitute a problem in the future. Only in our present time that this issue started to arise as more cases are brought to the court regarding the stateless especially the children on adoption and others. Besides, the increasing awareness among our society members had also contributed to the gravity of this issue. The development of law in Malaysia will be discussed more thoroughly in the following topics.
Total number of stateless children in Malaysia
The estimation of total number of stateless children in Malaysia recorded in 2014 is 150,000. The number of these children is increasing as we speak and will keep on increasing if no further action is taken.
Attempts to Recognize the Stateless Children
“statelessness can set in stone grave problems that will haunt them a life of discrimination, frustration and despair. If our hopes for the future generation meaningful part of the present. None of our children should be stateless”
– Antonio Guterres
Stateless children are born into a world in which they will face a lifetime of discrimination; their status profoundly affects their ability to learn and grow, and to fulfil their ambitions and dreams for the future. Stateless children, through no fault of their own, inherit circumstances that limit their potential. They are born, live and unless they can resolve their citizenship issues, die as almost invisible people. There have been numerous efforts and attempts being made to help these children getting recognized in Malaysia.
In 2009, a circular on the issue of stateless children had been sent out to all states education departments, which stipulates that such children can register at any government or government-aided school if one parent is Malaysian. However, the parents need to provide a support letter which they can get it from the village head to facilitate the school enrolment process. Unfortunately, this circular is just applicable to children who one of their parents is a Malaysian. On top of that, United Nations International Children’s Emergency Fund (UNICEF) Malaysia has come out with variety of solutions over the past few years in helping the stateless children in Malaysia. UNICEF Malaysia had established the Learning Centre in Kampung Numbak in partnership with the Ministry of Education (MoE), the Sabah Special Task Force, the Teacher Foundation and the community, to provide access to basic education for to the refugees as well as undocumented children or also known as stateless children. The education center was the first initiative by the UNICEF Malaysia which follows the National Curriculum with emphasis on reading, writing, arithmetic, Islamic studies and some other skills.
Other than building learning center for the unfortunate children in Sabah, UNICEF Malaysia also has been working hand in hand with the government of Malaysia to ensure the births of all children are registered, particularly those in rural communities. This is because the problem of stateless stemming from the parents themselves for not registering their marriage as well as the birth of their children. It was reported in 2011, a registration drive targeting ethnic Indians helped secure documentation for some of the stateless.
Since 1981, the Borneo Child Aid Society Sabah (BCAS), an independent Malaysian non-governmental organization has been working so hard to help these children out of the streets and into school. The society provides education to children which they do not have access to public school due to their legal status. As of now, they had built three learning centers around Sabah. Meanwhile, Development of Human Resources in Rural Areas (DHRRA) Malaysia has been consistently provide legal assistance to stateless communities in West Malaysia since 2006 through an initiative known as Projek Mendaftar Anak Malaysia. What they did throughout their establishment are comprehensive mapping, registration and community based legal assistance project across the Peninsular region. Apart from that, the Special Implementation Task Force for Indian Committee was established to help in addressing the documentation issues and statelessness suffered by this people.
There was also another attempt by Dr Hartini, child rights activist and also co-founder of Yayasan Chow kit, a non-profit organization , adopted her daughter with hope that she will entitled citizenship rights automatically following her status. However, it turned out to no avail when the Ministry of Home Affairs stated that, adoption of a children only provides legal care rights of a child and does not carry along with it automatic citizenship rights, hence her application was rejected. With no official status, her daughter, Zara could not embrace any of the rights of citizen of Malaysia such as travelling, attend school government as well as utilizing public health system.
To conclude, there were many attempts from the non-governmental organizations as well as the government in helping these stateless child getting citizenship and of course giving a better life to them. Every child is entitled to have dreams of their own and by being stateless is not their choice. Hence it is upon our responsibility to give their dreams back.
The cause of problem
The cause of problem stateless child can be explained into two fragments. Firstly, by enlightening the cause of problem globally and following by locally. The motive why the first approach to deal with the cause of stateless children globally is because this matter is a global issue. It is related to the rights of human being, being discriminated. Moreover, this issue is concerning children which is in reality they do not know what would happen to them and what would they imagine their life in the future. There are so many reasons why this problem happened.
One of the causes of stateless children is by migration of family to another country where they got citizenship. It can be interpreted here, as a child, they have the right of citizenship of their parents’ country of origin. However, they cannot permanently access it instead, they become stateless in the country where they grow up. Besides, the other ways how a children become stateless is by lacking of birth certification. This is due to the fact that their parents are fear to give their attention to register their children. Hence, this contribute the children to become stateless.
Another factor that cause a children become stateless is by the absent of their birth certificate. This would be caused by missing of their birth certificate or demolished. Plus, there is no other solution to associate them with the actual country. The other biggest factor that cause the problem of statelessness child also is due to the discriminatory laws that is generated. By do not recognising the citizenship of the children, deprive the future of the children generation.
The example of country of having the statelessness child is in Thailand. In this country a child who do not have a document that they must receive from their ministry education cannot go to school. The document that should be given to them is Regulation on evidence of Child’s Birth for School Admission to honour Article 29 of the convention of the Rights of the Child. While in Syria, if the children wanted to attend to school, they must acquire permission from the state security. This country only recognises the right of Kurdish children to primary education only. However, they do not allow in their native language. Besides, if they request to enter into secondary school, they must have permission from the state security. Otherwise they cannot go to school.
The explanation above illustrates the statelessness children around the world. This give the clarification that this is the serious issue that must take into account. It is because, children without citizenship in our country is large in number. As stated in the earlier part, there are statelessness children in Malaysia. However, the cause of this problem in Malaysia might be different from the other factors above. This is because Malaysia do not have the same circumstances as the other country.
As stated by Deputy of Home Ministry, Datuk Nur Jazlan Mohamed, most of the cases stateless children in Malaysia is because of the carelessness of the parents who married foreign people and did not register their marriage in Malaysia and soon after their children when were born, automatically cause the problem to register their children as citizenship. He added, this registration of marriage is important because the first thing that the Ministry Registration Department will take into consideration is the verification of their marriage and the level of the citizenship of the parents.
Besides, another factor that cause the stateless children in Malaysia is due to the irregular migration to Sabah in eastern Malaysia. This have resulted in large numbers of undocumented children of migrants from the Philippines and Indonesia. As far what has occurred, this undocumented migrants in Malaysia are targets for arrest and deportation. Most of the cases happened they left their children alone on the street. Hence, this abandoned children have no official birth certificate. Moreover it become worst since they have no other family to link, it is challenging for them to trace and discover their legacy back to their parents’ country of origin. Therefore, it leads to trouble for them to apply passport.
The example of local cases related to statelessness children can be illustrated through the case a 12 – year old boy named Zugoh which is Filipino descent. Because of his statelessness, he has to work at the fish market at night in Kota Kinabalu. He does not have a father but has a mother. However, he does not stay with her mom. Because of his statelessness he does not have documented document that entitled him to enrol to school.
In Alexander Than Keng Mung, who is adopted children that has been caring by his parents since birth battling in the for his recognition to be qualified as a citizen been rejected from being qualified in June 21 2012. His appeal was actually being challenged since he was 12 and now he is above 18 years-old. This caused problematic to him to pursue in education even in low-level.
To conclude, this situation has led to the emotional disruption. Because it is related to the children who has no sin with their presence. If they do not grant citizenship since child, in consequences, it will lead to tremendous black economy crime since they are not entitled to citizenship and no country also will recognise them and they will become nobody in our country with no records of their existence in Malaysia.