For over a decade now Rekha Sen has had to endure a difficult process in trying to secure Malaysian citizenship for her children that has involved making numerous trips, letters and calls to Putrajaya. Her experience is not the exception but the norm for Malaysian women who are married to non-Malaysian men, whose children are born abroad. The experience, however, is quite different if you are a Malaysian man married to a foreigner. In those circumstances, the child is automatically given Malaysian citizenship.
It is not “discrimination,” Deputy Home Minister Datuk Seri Ismail Mohamed Said stated when asked in Parliament if the government planned to implement the UN Convention on the Elimination of All Forms of Discrimination Against Women (Cedaw) Committee’s recommendation to ensure that women have the same rights as men with regard to citizenship, especially in conferring nationality to their children born abroad to foreign spouses.
According to Cedaw Article 9(2), “state parties shall grant women equal rights with men with respect to the nationality of their children. The deputy minister said that the government had agreed to retain its reservation on Cedaw Article 9(2), adding that it was a “question of security and sovereignty.”
“I would have preferred a statement telling it like it is,” retorts Sen.
That gender discrimination is openly practised and women are not entitled to the same rights. Why say it any other way?Rekha Sen
The statement dealt a blow to women already frustrated by an ambiguous process who had hoped for a different response. With no other avenue available to them, six women made the bold decision to file a suit, seeking a declaration that Malaysian women married to foreigners have the right under the Federal Constitution for their overseas-born children to be given Malaysian citizenship.
“This isn’t a new problem,” says Sen, who is one of the six women. “It has been going on for decades. The women behind the various organisations fighting for equality have exhausted almost every avenue via talks with the government and the media but little change has been made. This is another way to reach out to have our voices heard and hopefully address this.”
Power and politics, she adds, has unfortunately played a significant role and though each administration may present a different set of rules, no decision has yet been made.
“As citizens, we bear the brunt,” she states. “This isn’t a new story.”
The issue, to her, is one that has to do with basic human rights. As a Malaysian, Sen believes it is her right to confer her citizenship to her children.
“Why shouldn’t it be so?” she asks. “I contribute equally, pay the same taxes as my male counterparts so why am I not extended the same opportunities?”
She regards it as also being an act of discrimination against the children. Why are some children treated as being more deserving than others?
“Who gave anyone the right to choose and decide that?” she questions.
At present, the application process is arbitrary. Three to 10 years appears to be norm and the decision seems to be discretionary. There are no guidelines in place on what requirements are needed for a potential approval nor any explanations for rejection. Sen’s own experience exemplifies this.
“In my case I received an approval for my eldest but rejections for my younger two. No reasons were given after waiting for an answer for almost five years for my youngest. My middle child was rejected in 2015 and his case is still under appeal.”
Situations like these have resulted in many families facing numerous challenges that have placed them under duress. Families being separated, children becoming stateless while many don’t have access to health and education as they reside as foreigners in Malaysia are just some examples.
“Those abroad live with the constant anxiety of not being able to return or not having access to their children in some cases,” she explains. “To add to the complexity, Malaysia doesn’t allow dual citizenship so many abroad have no choice but to eventually give up their Malaysian citizenship in favour of their spouse’s to be with their children.”
To critics who say that Sen’s children aren’t living in Malaysia and therefore don’t need Malaysian citizenship, her answer is straightforward.
“It’s an argument I might be able to accept if the men in my position were also required to apply via Article 15(2) for their children born abroad,” she quips. “I would further argue that they have never been given the fair chance to live in Malaysia. As long as they are not granted citizenship, my children will always be considered foreigners in Malaysia. To me and the tens of thousands in my position, Malaysia has closed her doors to us and returning permanently is not an option.”
The Second Schedule, Part III of Article 15 (2) states that Malaysian women with overseas born children will obtain citizenship by registration for their children. This, however, is said to contradict Article 8 of the Federal Constitution which states that all persons are equal before the law and entitled to the equal protection of the law.
The suit challenges Article 14 (1)(b), read with the Second Schedule, Part II which allows the passing down of Malaysian citizenship by “operation of law” only if the father is Malaysian. Malaysia is one of 25 countries in the world to still uphold this law and only one of two in Asia.
The legal process is going to be a long one, she concedes, but she is prepared for arduous journey ahead.
“There is no time like the present to get the ball rolling and I am in it for the long run,” she states. “The battle for equality will not be an easy one. I am not misdirected with my expectations where timelines and outcomes are concerned but I do believe it will happen.”
While the goal of the lawsuit is to win, that is only half the battle for Sen. For her, the real win comes when people recognise that they have the power to make a change.
Collectively our voices can be heard. The fight for human rights and equality isn’t an easy one. What we are really trying to change is mind-sets and this will take time.Rekha Sen
As our perspectives evolve, she stresses that it is imperative that our culture, laws and systems evolve as well. Change is already happening and the question should no longer be “if” there is change but “when.”
“We can all choose to take action now and be a part of history that was willing to break barriers and make the changes needed or we can continue to choose to look away and leave it to the next person or the next administration to do the right thing,” she states. “I am hopeful that we can collectively stop seeing the world through a divisive lens. Together, I believe we can make the change we need – for our children, for you, for me, for all of us.”