KUALA LUMPUR: The proposed amendments to the Federal Constitution on citizenship matters, if approved, may further aggravate the stateless children problem in the country, "punishing" them for the mistakes of their parents, experts believe.
Experts said the bill, expected to be tabled in the Dewan Rakyat this year, would remove the existing constitutional protection for some categories of stateless children, leaving them without any constitutional safeguards.
Lawyer Nizam Bashir said most of the proposed amendments, including to Section 1(a) of the Second Schedule, Part II of the Constitution, as well as Sections 1(e) and 2(3) of the Second Schedule, Part II of the Constitution, appear to be regressive as they take away what applicants and their children are entitled to under the present framework, as well as purports to increase the period of vulnerability of the applicants and their children.
Citing a proposed amendment of the Constitution, Nizam said removing the right of foundlings by operation of law under Section 19B of the Second Schedule, Part III of the Federal Constitution, involves the rights of new born children "found exposed in any place" for the purposes of Part I and Part II of the Second Schedule, i.e. a pathway for those children to attain citizenship by operation of law by way of right as opposed to discretion.
"The proposed amendment will subject children 'found exposed in any place', foundlings including abandoned children, to discretionary citizenship and place the burden of proof on the child as to their parentage.
"The proposed amendments also reduce the pathways to obtain citizenship and appear to place more discretion and power in the hands of the Home Ministry officials."
As a result, it may increase the number of those who are stateless, whether in the form of inherited or multi-generational statelessness or first generation statelessness, he said.
Nizam said the proposed amendments seek to remove the ability of children born in the Federation on or after Malaysia Day, who have at least one parent who is a citizen or permanent resident at the time of their birth, to obtain citizenship "by operation of law".
If accepted, he said, children born to Malaysian permanent residents will no longer have access to citizenship by this pathway and will, consequently, be passing on their statelessness to subsequent generations.
"The proposal will be detrimental to existing stateless communities.
"It is also important to keep in mind that citizenship 'by operation of law' is a non-discretionary right and accepting the proposal means that more power as well as more discretion is being handed over to the ministry officials."
In addition, lowering the age limit from 21 to 18 to obtain citizenship, in particular Articles 15 (2), 15A, 19(1), 19(2), 23(1), 23(3) and 26(A), will unnecessarily reduce the number of years for stateless child applicants to apply for citizenship, he said.
Development of Human Resources in Rural Areas social protection director Maalini Ramalo, who is actively assisting and educating citizenship applicants, said this would prove to be problematic as the process itself commonly takes years before they are awarded citizenship.
She said the proposal was in contrast to the government's intention to protect the children's right to citizenship, which the country's first prime minister, the late Tuanku Abdul Rahman had said: "A child should not be punished because of the father's sin. A child should not be branded stateless because of the tightening of the citizenship law that we are intending."
Global Action Plan to End Statelessness 2014-2024, issued by the United Nations High Commissioner for Refugees, outlines actions that can be taken by countries to resolve existing situations of statelessness; prevent new cases of statelessness from emerging; and better identify and protect stateless persons.
It suggests 10 actions to end statelessness including ensuring that no child is born stateless, removing gender discrimination from nationality laws and improving quantitative and qualitative data on stateless populations.