Clear Government Policy Needed To Resolve ‘Stateless’ Children Issue

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By BRANDON SOH
STATEMENT: The Sabah Law Society [“SLS”] is supportive of the initiative by the Chief Minister of Sabah, Datuk Seri Panglima Haji Mohd Shafie bin Apdal to resolve the issue of stateless children born in Sabah where one parent is of Malaysian nationality.

In the absence of marriage between a Malaysian national and a foreign national, the citizenship of a child follows the mother. In many cases, the mother of the child returns to her country of origin leaving the Malaysian father to raise his stateless child.

Stateless children are innocent and should not be made responsible for the failure of their parents to register their marriage before their birth. Malaysia has ratified the international treaty on the Convention of the Rights of the Child (“CRC”) on 17.02.1995 to uphold its commitment to the protection and welfare of children.

In this respect, the best interests of the child are the primary consideration.

However, the SLS is of the firm belief that there must be strict criteria to be adopted and guaranteed safeguards when embarking on such a legalisation program for stateless children.

The pre-requisites for applying cannot under any circumstances be compromised and only genuine applicants must be eligible. The SLS is aware of the sensitivities and sentiments of the public concerning past incidents of the grant of citizenship to persons of foreign origin in Sabah.

Indeed, the implications then were and are far reaching and can never be repeated.

The SLS is able, willing and committed to provide assistance to the State Government of Sabah for the purposes of formulating the criteria for such applicants and making recommendations for the strengthening of the mechanisms and processes involved.

Additionally, the Government must ensure transparency in the procedure for resolving the perennial issue of stateless children in Sabah where one parent is Malaysian. The SLS considers the current predicament as the Government’s social, moral, and legal obligation to both these stateless children and the society at large.

Currently, the only recourse for stateless children is to apply for citizenship under Article 15A of the Federal Constitution which decision is an absolute discretion of the Home Minister as to whether to approve and or reject citizenship under “special circumstances” to anyone under the age of 21.

Therefore as citizenship is a Federal matter, there must be concerted cooperation and coordination between the Federal and State Government, including the relevant government agencies and all other stakeholders in this legalisation process.

In addition, there are other categories of children that are defined as “stateless” that ought to be resolved by the Federal / State Government. For instance, children who have been abandoned since birth but have been issued with a birth certificate stating that they are either “not a citizen” or their citizenship is “not determined” and who are subsequently adopted by Malaysian parents.

The time has come for there to be a clear government policy on these issues so that a stateless child in such circumstances may be recognized as a citizen and subsequently fulfil his or her full potential in Malaysia.

The SLS acknowledges and welcomes the government’s decision to allow children who are stateless to attend school; remaining stateless deprives the children of many other fundamental rights such as healthcare, welfare and other social services.

A holistic solution must be sought in the long term.

The SLS subscribes to the basic human rights of every child, based on the four core CRC principles: namely, Survival; Development; Protection; and Participation.

Whilst this initiative will not provide a solution to all stateless children in Sabah, the State Government’s responsible and proactive intention to legalise stateless children where one parent is Malaysian, is certainly a step in the right direction to fulfilling the objectives of the CRC.

* Brandon Soh is the President of the Sabah Law Society