Written by Nanthini Ramalo“Being said ‘No’ to by the country where I live; being said ‘No’ to by the country where I was born; being said ‘No’ to by the country where my parents are from; hearing ‘you do not belong to us’ continuously! ….. Being stateless, you are always surrounded by a sense of worthlessness.” - Lara, formerly stateless
Nationality is a legal bond between a state and an individual, also known as citizenship. A stateless person is a person who is not considered as a National by any states under the operation of its law. A stateless person then, is someone who does not enjoy the legal bond of nationality with any state. In effect, a stateless person is a non-national in every country in the world. The above definition of statelessness has been codified in the 1954 Convention relating to the Status of Stateless Person (article 1).
According to the Federal Constitution, a child born in the country becomes a citizen by operation of law only if one parents is a citizen or permanently resides in Malaysia at the time of his or her birth or if he or she “is not born a citizen of any country.”
Article 14 of the Federal Constitution, Second Schedule, Part 2, reads:
Citizenship by operation of law of persons born on or after Malaysia Day,(1)(a) “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,“ (e) “every person born within the Federation who is not born a citizen o any country.”
Malaysia has yet to sign the 1954 Convention Relating to the Status of Stateless Persons, 1961 Convention on the Reduction of Statelessness and the 1951 Convention Relating to the Status of Refugee.
However, Malaysia has signed the Convention for the Rights of Child (CRC) and Convention for the Elimination of Discrimination against Women (CEDAW), albeit with some reservations.
Statistics indicate that Indians in Malaysia comprise 7.8% or 1.8 million of the 23 million total populations. For several generations, the Indian community resided in rural areas, especially in the rubber and palm oil estates managed by large plantation companies. These plantation companies not only provided them with jobs but also took care of their social and cultural needs i.e. housing, school, temples and health care. In 1970, 47% of the Indians were engaged in agriculture of which 74% were in the plantation sector.
However, due to the rapid industrialisation program undertaken by the government, many of these estates were developed into industrial, commercial and residential areas. Employment in rubber plantations declined from 163,577 in 1979 to 11,788 in January 2006. From 1980 to 2000, it is estimated that more than 300,000 Indians were displaced due to the development. The magnitude of Indian displacement from rural plantation areas to urban areas can be seen from the official reports. In 1970, 323,435 Indian (34%) were in the urban areas and 609,194 (65.3%) in rural areas however by 2000, 1.33 million Indians (79.7) were in urban areas while 341,622 (20.3%) continued to live in the rural areas.
Despite the very large number of people involved in this involuntary stream of migration and with full knowledge of the traumatic impacts of this displacement will have on these people, sadly little or nothing had been done to prepare them for this new environment or to have a holistic transition program in order to equip them with the necessary skills to resettle this community in more sustainable and improved livelihoods. They are now forced to look at alternative ways and means to survive. However, with no proper education or skills, they ended up taking the lower-rung jobs in the cities and having to compete with the migrant workers.
These people are by birth Malaysians, but due to their lack of knowledge and awareness of the importance of such documents they are now in a state of limbo as to their citizenship status is uncertain and are at the mercy of the authorities who could due to bureaucratic reasons deny them their citizenship right. It is sad that in this day and age, there are many people who are not aware of important basic facts, such as how to register a marriage, birth or death. It is estimated that there are around 40,000 Indian children in the state of Selangor alone who do not have their birth certificates . Similarly, based on the number of cases we received at our 10 community centres from 2003 – 2006, we estimated that at least 20,000 Indian women do not have identity documents . These figures could be much higher if their children are taken into account. Therefore, they become ‘stateless’ in their own country and as a result they been denied of protection and care as a citizen of the nation state, and thus vulnerable to abuse and exploitation.
One of the other reasons for this issue based on our finding is due to the refusal of some men to own up to their responsibility when the child is born out of wedlock. In other cases the non-registration happened because some parents do not register their child’s birth within the prescribed14-days mandatory period or after that because they fear of being fined or reprimanded by the National Registration officials. As a result their children grew up without proper identification documents. Hence, the consequences are far reaching as children were unable to attend school or get proper medical attention.
An adult without proper documents can't secure a proper job or get married legally. If he or she does get married without their marriage certificate and have children, chances are that their children's birth will not be registered. As a result the children are neglected within an environment that is not suitable for living or is less favourable than their peers. As a result they often lack the opportunities for development in accordance with their age; such as the opportunity to receive formal education, the opportunity to be safeguarded by the national health care system, the opportunity to work in safe and just positions (leading to labour exploitation), and the opportunity to legally travel out of their residential area. These children often become targets and fall victim to criminal gangs or enforcement officers such as the police and RELA; they become trapped in a vicious cycle.
Similarly, because they are illiterate or lack education, they are unable to converse fluently in Bahasa Malaysia. As a result, they are unable to communicate effectively with government officials and face difficulty in understanding their bureaucratic procedures and requirements. Therefore, they are often subject to rude treatment by these officials which causes them to be demoralised and give up their efforts to complete their application. This has led to serious problems for these poor Indians and the cycle of “quasi statelessness” repeats itself after their children grow up and start families.
DHRRA Malaysia has taken effort to identify the stateless or undocumented Indians in Malaysia. Among the efforts taken are, DHRRA Malaysia has conducted many workshops in order to train the community leader, as they are much closer to the community and they will be able to identify the stateless people. DHRRA Malaysia has been very vocal in highlighting this issue in every available avenue. DHRRA Malaysia was also invited to contribute towards 10th Malaysia Plan by the Economic Planning Unit, Prime Ministers Department. During these sessions DHRRA Malaysia highlighted on the issues of the stateless people, how these stateless people will benefit or will be taken into account in 10th Malaysia Plan. DHRRA Malaysia has been involved in this task since 2003. DHRRA Malaysia and other NGOs are trying to minimise the problem by raising awareness among the community of the importance of applying for birth certificates early and assisting these undocumented Indians to apply for their legal documents. DHRRA Malaysia has also established good rapport with the National Registration Department (NRD) wherein NRD has been very cooperative in resolving the undocumented issues. The 2011 data at DHRRA Malaysia, shows 2099 number of cases have been collected since Jan to 15 Jul 2011.
According to DHRRA Malaysia’s experience, among the reason for not having legal documents are:
- Lack knowledge on the importance of legal documents
- Ignorance
- Administrative or procedural problems
- Financial problem
- Inter – religion marriage
- Marriage to foreign spouse (no legal marriage)
- No proof of birth
- Illegal Adoption
- Child abandoned without proper documents
- Child born out of wedlock
Case Study:
Vasudevan Subramaniam
Vasudevan Subramaniam was legally adopted by a couple at the age of 1 year from the government welfare home in Johor Bharu. He did not have any legal documents. His adopted parents managed to get his birth certificate but at the age of 12 when the parents took him to get his identity card, Vasudevan was given a red identity card which is known as “Permanent Residence”. Now Vasudevan Subramaniam is 19 years. Till date he is still unable to get his citizenship. His adopted parents have made several applications but all were rejected. Due to this he is also unable to apply for an International Passport to travel to overseas with his adopted parents.
Being born in Malaysia, having lived in a government welfare home, adopted by Malaysian parents and studied in a national school but being denied of nationality. Vasudevan Subramaniam has been classified as Stateless.
Muniammah & Family
Madam Muniammah is 60 years old. She was born in an estate in Kuala Kubu Bharu. She does not know where her siblings are, as she was married off at the age of 11. Her husband was an alcoholic and did not care for the family. Muniammah has 4 daughters. The husband left when the children were still young. Muniammah tried to register the birth of her children but could not do as she herself did not have any legal documents. Now her daughters are of the age between 30 – 36 years. The worst part, Muniammah daughter’s has children of their own. In this family alone we have 3 generations of stateless people.
Norhashima bt Abdullah
Norhashima was sent to government welfare home with a court order when she was a few months old. She grew up in the government welfare home, which till today has her records. She went to a national school. The welfare home did apply for her birth certificate and her parents details are not in the birth certificate due to that, Norhashima is also classified as stateless. Norhashima is 27 years now, the only identity card that she has now is a green identity card, which recognises her as temporary resident in the country where she was born and grew. This identity card has an expiry date as well.
Tan Ming Siang & Tan Ming Haw
Tan Ming Siang and Tan Ming Haw are bothers. They both were born in Malaysia. They were born to a Thai mother and Malaysian father. Tan Ming Haw has a birth certificate but in his birth certificate it is stated as ‘Bukan Warganegara’. Tan Ming Siang’s application is still in process. Both their parents were not legally married. Since they are not legally married, both the children are not recognised as citizens of this country. To make situation worse, both of them were stopped from attending school as they are stateless.
These are some of the sample cases which are in limbo; it is doubtful if these people will be recognized as citizens of this country. According to the current policy these people will not be recognized as the citizen of the country.
Governments Effort In Eradicating Statelessness among the Indian Community
- The government has taken some effort by setting up the Special Implementation Taskforce on Indian Community (SITF) under the Prime Ministers Department. SITF initiated MyDaftar campaign from 19 Feb – 4 Mac 2011. SITF manage to collect 14, 882 cases.
- The National Registration Department has also been very cooperative in handling the stateless issues.
- The Prime Ministers Department has also provided allocation to various NGO’s to identify and assist in eradicating this issue.
- The government has also launched many media campaign.
All the above effort is appreciated but there is nothing much done on policy matters. Only with policy amendment can the issue of stateless Malaysians can resolved.
SUHAKAM’s Stance on the Stateless People
SUHAKAM has issued many statements on various stateless groups. However there has not been much effort taken in eradicating the issue of statelessness.
SUHAKAM in its capacity should conduct a study with the help of NGO’s working on these stateless people and provide policy recommendations to the government.
Accede to and implement the 1954 Convention Relating to the Status of Stateless Persons and the 1961 Convention on the Reduction of Statelessness.
Lobby to the government on the basis of Child Rights Convention, that every child should have access to education.
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