Cover Rekha Sen (Photo: Tian Xing)

When you take away societal expectations and gender norms, where is the line supposedly drawn between a ‘father’ and a ‘mother’, when the two are simply parents who want the best for their children?

You are a Malaysian woman who conceived while abroad. And though motherhood is a joyous occasion, a gut-churning anxiety roils at the back of your mind as you wonder what this will mean for your child’s future—because despite being born from a Malaysian mother and are thus of Malaysian descent, they were not born on Malaysian soil and as a consequence, not considered Malaysian.

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Even when you should not even have to justify why you could not come home to give birth, you do it anyway, because you want to be able to bring your child back to your home country. Yet, despite explaining the dangers of flying while pregnant, the travel restrictions caused by the pandemic, or that you had health complications that barred you from travelling, the way back home is shut to the child you carried for nine months, and by extension, you.

Before the landmark ruling made by the Kuala Lumpur High Court on September 9, 2021, where Malaysian mothers with a foreign spouse could now automatically confer citizenship to their overseas-born children, the language the provisions of the Federal Constitution had used for their citizenship application were ambiguous at best, and outright preferential at worst.

To clarify, although Article 15(2) states that the Federal Government may cause any person under the age of 21 whose parents one at least is (or was at death) a citizen to be registered as a citizen upon application made to the Federal Government by his parent or guardian, the actual proceedings for a Malaysian mother to have the applications actively processed was an exhaustive trial many have had to contend with for decades. However, up until December 2020, these cases have been swept under the rug, either left hung out to dry as ‘pending’ applications or rejected without reason.

"Life would be much simpler—or in some aspects, easier—if we could just eschew the silos of gender norms. Equality means not having preconceived notions about what you are born as. It shouldn't dictate your role or your choices in education, at work or in your home."
Rekha Sen

Rekha Sen, mother of three and human rights advocate, is one such case. “Before we took it up with the court, we were all running around trying to resolve our applications individually,” says Sen. “I went to Putrajaya a total of seven times for my first-born, Arri—just two months after I had him in Thailand. I wrote countless letters to the prime minister, the home minister and the National Registration Department (NRD). It was such a battle to get his citizenship done, but I realise now that I was only part of the 2 per cent that got approved. I was one of the fortunate ones.

“When it came to my second and third children, Tara and Leo, although I went through the same process as I did for Arri’s citizenship, their applications were rejected. And there was no explanation given whatsoever. I waited five years for a reply to Tara’s application, but all I got was a letter that said, ‘we are sorry, but your application has been rejected’.  One would think that after waiting this long, I would be given a reason at the very least. No one at the Home Ministry has been able to give us a clear answer on what criteria needs to be met to obtain a successful application because there is no clear guideline. We are at the complete mercy of the home ministry officials receiving these forms.”

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To make matters worse, time was running out for these children, and fast. Based on an official parliament statement published in October 2019, the average period of time it takes for one’s citizenship application to be processed takes as long as ‘three months and 14 days’ at the NRD, and up to ‘eight months’ at the Ministry of Home Affairs. If one’s application is rejected or unresolved, the process gets even more prolonged, which may render the child’s eligibility for citizenship null and void once they turn 21. Should the child be unable to attain any nationality at all, they run the risk of being stateless, which then affects their access to basic services such as healthcare, education, employment and accommodations.

And should the mother decide to raise a child of foreign status in Malaysia, the challenges are endless, especially for a single mother. To ensure that her child obtains the right to stay in the country and gain access to education, she has to constantly renew their education visa, which is an arduous administrative process that simply isn’t sustainable as this is until they reach adulthood. She also faces a heavy financial burden—private schools are expensive, and medical fees are even more so.

Then comes the dreaded conversation of having to explain to her child as to why they are not Malaysian, even when their mother or their siblings are. “It’s a complete nightmare, and people overlook the lifelong impact it leaves on both the mother as well as her children,” says Sen. “Everyone, including the children themselves, can see that they are treated differently from others because they are ‘foreigners’ and thus not given the same rights across the board—this is most apparent where education and healthcare are concerned. Despite studies having all but proved that women in the workforce provide a positive impact on the economy, that we make up 50 per cent of society and contribute just as much as our male counterparts, it’s clear that we live by a discriminatory system that favours patriarchal practices still. Why should gender matter when it comes to being the caregiver of your family? Why should being a woman, or a man, matter when it comes to the workplace or your role as a parent?

“Presently, my children attend an international school that is affiliated to the United Nations, and gender equality is one of the pillars the school focuses on. They are taught to regard one another as human beings, as people. They don’t differentiate between gender and race. That is why they don’t understand the need for me to take this issue to court—gender equality in their eyes is the expected norm.  Sometimes, Leo would ask me, ‘How come Arri has citizenship and I don’t?’, and I can honestly say that I don’t have a decent answer for them. I try to explain the discrimination objectively and teach them that the best we can do when something isn’t right is to take the steps to try to change it.”

According to the figures from 2018 to September 15, 2019, disclosed by the NRD itself, out of the 2,253 citizenship applications made under Article 15(2), only 142 have been approved.

Now, it bears saying that though Article 15(2) may be seemingly neutral at first glance, the crux of the problem lies within Article 14(1)(b) and 1(c). When read with Part I and Part II of the Second Schedule, which are the required qualifications to meet for one to be considered a citizen ‘by operation of the law’, is that whether or not ‘the person is born on or after Malaysia Day’, they need to be born on Malaysian soil and at least one of their parents has to be either a citizen or a permanent resident. Should they be born outside of Malaysia, the ‘father’ needs to be a citizen of the country. The final nail on the proverbial coffin is that even when a year or more has passed since the child’s birth abroad, so long as the ‘father’ is a citizen, the government ‘may in any particular case allow’ them to register their child’s citizenship at a consulate of the Federation.

Simply put, while a Malaysian father is expressly allowed to automatically confer his citizenship to overseas-born children, the same could not be said for a Malaysian mother.

Presently, while the case has been a rousing success and the mothers are now finally able to pass on their citizenship to their overseas-born children, there have been several appeals made to have the citizenship ruling stayed. Some even cited that the appeal was justified, saying that it was a matter of ‘national security’ and a question of loyalty.

Regardless of the ruling's prior approval, however, the appeal since September 9, 2021 have yet to be withdrawn and will be heard by the Court of Appeal on March 23, 2022. Even now, applications made by the mothers are still 'pending' and none of them have received their children's citizenship documents yet—when asked how long the process would take after the case took place, the families were told that it would take "up to two to three months". According to Sen, the fight continues, and the stakes are high: should the appeal come to pass, every application will be retracted or made void. 

Both her and those involved in the case found the criticism and the appeals both baffling and uncalled for. “We’re not asking for anything different,” Sen exclaims. “We’re asking that you give our children the right to have access to both of their parents, to have homes to belong and come back to.”

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