CHAPTER 1: RIGHTS AND PRIVILEGES OF STATELESS PERSONS IN MALAYSIA1.0 IntroductionThis research is regarding the issue of statelessness person in Malaysia.
The heart of this dissertation is to study on the right and privileges of stateless people. The Convention Relating to the Status of Stateless Persons in 1954 established the universal definition of “stateless person” in Article 1(1), but Article 1(2) boldly stated that one who falls within the definition, is not protected by this treaty. Stateless persons, therefore, are denied from enjoying a range of human rights and are not allowed to participate fully in society. When Federal Constitution came into force on 31st August 1957, Article 14 until 31 provide for the provisions relating to citizenship of a person in such that the child must be born in Malaysia and that one of the parents must be a citizen or permanent resident.
One of the main problems that lead to the statelessness is when the people failed to register their birth certificate to the National Registration Department. Based on the section 7 of the Birth and Death Registration Act 1957 where it emphasises that ‘the birth of every child born in Malaysia shall be registered by the Registrar for the registration area in which the child was born’. Thus the parents play an essential role to register their child upon birth.Besides, in Section 8 the same act also states that the information regarding on the birth must be given within fourteen days from the date of the delivery. The problem arises in the situation where the parent of the child born out of wedlock did not register their child.
These children may be at the risk of statelessness. Hence, in order to curb the problem of statelessness form aggravating, further investigation is required.1.1 Research Questions 1.
1.1 What are the rights and privileges that the stateless persons deprived of in Malaysia?1.1.
2 What are legal perspectives towards stateless person in FederalDemocratic Republic of Nepal, Republic of Estonia, and The UnitedKingdom of Great Britain and Northern Ireland ?1.1.3 What are the solutions to the problem of statelessness? 1.2 Research Objectives 1.
2.1 To identify rights and privileges of stateless person in Malaysia.1.2.
2 To refer to other countries as an example in approaching several issues arising out of statelessness1.2.3 To suggest solutions that can address the problem of statelessness 1.
3 Problem Statement This study addresses several issues arising from the problem of the statelessness in Malaysia. Article 7 of Convention on the Rights of the Child requires all State Parties to fulfil the rights of children to be registered immediately after the birth and shall have the right to acquire a nationality by other national and international obligation or otherwise, the children would be stateless. However, regardless of the Convention, citizenship can only be applied if one of the parents is a citizen of Malaysia.The situation in Sabah is profoundly affected by the migration of refugees and workers from the neighbour countries as Sabah has been known for its migration route and trade along Southeast Asia and South China region. United Nations High Commissioner for Refugees (UNHCR) stated that a person is considered legally stateless if all states in which he has ‘factual’ link with fail to recognise the person as national. Children with lack of certificate proving that they are Malaysian or holding IMM13 when one of their parents is a Malaysian prevents them from getting Malaysia education and other citizenship privileges. The situation in Malaysia is that the children are unable to obtain nationality due to a few factors including their status as illegitimate child and negligence on the part of parents to register them. Home Minister, Datuk Seri Dr Ahmad Zahid Hamidi stressed that birth in Malaysia does not automatically confer citizenship to any person and thus the applicant is required to prove that he is qualified for Malaysian citizenship.
In the case of Lim Jen Hsian & Anor v Ketua Pengarah Jabatan Pendaftaran Negara & Ors, a 16 year old boy has been denied of Malaysian citizenship on the ground that his parents did not register their marriage in Malaysia despite the issuance of birth certificates and international passport which should have been enough. The problem arises when the child is an illegitimate child since our Law Reform (Marriage and Divorce) (Amendment) Act 2017 requires non-Muslim couples to register their marriage to be legally recognised. When there is no legal marriage, the registration of birth and nationality of their children shall also be affected. 1.4 Research Methodology1.4.
1 Research DesignA research design comprises of an outline specifying the research from the primary step to its final stage where the objective should have been able to be achieved. This research is a comparative legal study focusing on the laws made on the acquisition of citizenship of several countries namely Nepal, Estonia and the United Kingdom. The laws passed in the mentioned states will be compared to Malaysia.
Subsequently, the approaches taken to reduce statelessness by these states are also observed and compared to that of Malaysia. Lastly, this research is expected to formulate a suitable solution to reduce statelessness in Malaysia. 1.
4.2 Research Approach The research approach used is qualitative methodology. Qualitative research is used because this research does not deal with numbers and it focuses on exploring behaviours, and opinion on the discussed subject matter. Also, this type of research used several specific methods such as to grasp the current situation of the topic in discussion holistically besides describing the situation factually. Therefore, qualitative approach is the most suitable method to enable the research objectives to be fulfilled.1.
4.3 Data CollectionThis research collects essential and required data through several methods namely interviews and document analysis. This research will conduct semi-structured interviews to a practicing lawyer and a representative from a non-governmental organization named Development of Human Resources for Rural Areas (DHRRA). Semi-structured interviews with open ended questions are to be conducted to have freedom to formulate new question during the interview since it is done to understand the whole picture of the problem to further formulate practical initiatives that can be taken by the State.
Data is also collected by library reference and online database research such as LexisNexis.1.4.4 Data Analysis This research will apply substantially the processes of statutory, doctrinal, comparative and discourse analysis towards the data collected. Statutory and doctrinal analysis will take place when the laws on citizenship of the chosen states are observed closely together with its application on several cases. Subsequently, comparative analysis will be done to formulate the solution to statelessness.
Discourse analysis, meanwhile, will also be conducted whereby the findings from the interview of the two respondents will be compared.1.5 Scope and Limitation of the ResearchThe scope of this study includes identifying the missing rights of the stateless persons and the citizenship laws of Estonia, Nepal and the United Kingdom being compared to that of Malaysia. The mentioned states are selected because they have formulated a solution to reduce the problem of statelessness at the domestic level.
The limitations to this study are, inter alia, insufficient data on stateless persons in Malaysia and time constraint.1.6 Significance and ContributionOne of the significance of this study is to contribute to the data collection and data organisation on the issue of statelessness in Malaysia. This can be achieved when this research also include raw data from the interviews conducted. Also, this research has made comparison between the citizenship laws and the approaches taken to curb statelessness in Malaysia and Nepal, Estonia and the UK.
This research will also be able to bring the attention of the government to the severity of statelessness in Malaysia. The affected people who are born in Malaysia but were not given Malaysian citizenship are mostly financially incapable of filing their case as a suit and hence assistance from relevant bodies are the most helpful mechanism to reduce statelessness in Malaysia. 1.7 Conclusion In conclusion, this research is an attempt to study the issue of statelessness in Malaysia. This research will review the previous researches made by other authors as guide to know the background of statelessness in general. This research will also refer to the citizenship laws and approaches to statelessness in the international level as portrayed by the mentioned foreign states which is stated in Chapter 3.