When Josil Murray, a Malaysian conservation consultant based in Thailand, became pregnant with her first child last year, she tried to make plans to return to her home country. Unlike Malaysian men, Malaysian women cannot automatically pass on their citizenship to their children born abroad. As the coronavirus pandemic set in, Josil couldn’t find any flights home. When Malaysia Airlines resumed service in July 2020, Josil applied for permission for her British husband to enter the country, which had closed its borders. It was rejected twice.
Hemmed in by difficult circumstances and afraid to risk an extended separation, Josil stayed in Thailand to deliver her baby with her husband by her side. “It was a good decision because my daughter arrived three weeks early, so I would still have been in quarantine had I decided to fly home. Also, the borders haven’t opened up in Malaysia, so we could still have been separated until now,” Josil said. As a result, her nearly 11-month-old daughter does not have Malaysian citizenship.
Article 14(2) of Malaysia’s constitution gives fathers the automatic right to confer citizenship to their children born abroad, but it doesn’t mention mothers. This clause has caused discrimination against Malaysian women for decades, but the pandemic has exacerbated existing hardships, leading to the protracted separation of families. A human rights group and six Malaysian mothers with children born abroad have now brought a constitutional challenge before the courts, asking that they interpret the clause in line with gender equality principles. If they succeed, Malaysian mothers could finally win the same automatic rights as Malaysian fathers. However, despite a recent ruling in the mothers’ favor, the government so far seems intent on opposing their case at each turn, setting the stage for a years-long legal battle.
Malaysia’s gendered inequality in passing on citizenship is a holdover from British colonial rule. Although many former colonies changed their laws after the introduction of the Convention on the Elimination of All Forms of Discrimination against Women (CEDAW), Malaysia remains one of 25 countries that has not. The government ratified CEDAW in 1995 but made a reservation to a clause dealing with nationality. Its reluctance to change the citizenship law seems to stem from ingrained patriarchy—that fathers should have rights over their children in a marriage—along with other fears. Last year, Malaysia’s deputy home minister said a child born overseas might hold dual citizenship—which is illegal in Malaysia—and pose a national security threat. But critics have rubbished some claims, since the same concern does not seem to apply to fathers.
Mothers with children born overseas can apply for citizenship on their behalf before they turn 21 years old. But approvals, granted at the discretion of the Ministry of Home Affairs, are rare. From 2013 to 2018, only 142 such applications were approved, while 3,715 were rejected and 4,959 were pending. Even the rejected cases can take years to process, and the authorities often do not provide mothers with clear reasons or steps to reapply, said Chee Yoke Ling, a committee member of Family Frontiers Malaysia, the women’s rights group that is challenging the government in court on behalf of Malaysian mothers with foreign-born children.
Even before the pandemic, the current interpretation of the citizenship law had long created hardships for women. The consequences of this unequal law multiplies. After a marriage breaks down, some women living abroad may be unable to return to Malaysia for the sake of their children. Others may stay in abusive relationships to avoid being separated from their children or because of the high costs of health care and education for a noncitizen in Malaysia. Moreover, there is the inconvenience of visa runs: every six months for children under the age of seven and annually for student visas.
Some Malaysian mothers don’t even realize they cannot automatically pass on their citizenship if they have a child abroad. Mashithah Abdul Halim, a schoolteacher in Sabah, Malaysia, traveled to Turkey in 2019 while pregnant with her fourth child so her Syrian husband could visit his family there. She told Foreign Policy authorities reassured her before she left that her son would be able to claim Malaysian citizenship if he was born overseas—but failed to tell her the process wasn’t automatic.
Mashithah gave birth in Turkey, and as her husband also couldn’t pass on citizenship to their child for other reasons, her son was left stateless. She applied for her son’s citizenship in September 2019 and is still waiting on a response. Because of his status, he doesn’t enjoy the rights her other children have. His health care is more expensive because she can’t include him on their family insurance policy without a passport. He won’t be able to attend any of the formal government schools. Mashithah dreads the day when the pandemic eases and the family makes plans to travel again because she won’t be able to bring him along.
The pandemic has revealed deep gaps in Malaysia’s citizenship law and its protections, ultimately making it more difficult for families to stay together during a challenging time. With borders closed, Malaysian mothers have juggled conflicting needs of their own, their foreign-born children, their other children, and their spouses. And as Malaysia’s handle on the pandemic worsens with the spread of the delta variant, pregnant mothers or mothers with children born abroad continue to make difficult sacrifices.
Family Frontiers Malaysia had previously considered challenging the interpretation of the constitution in court, but the urgency of many women’s hardships in the last 18 months—along with the suspension of parliament, making a legislative change unlikely—finally tipped the scales. Chee said some women braved the pandemic and returned to Malaysia to give birth with the expectation their spouses could soon join them. Instead, they ended up separated by border closures, with many women suffering postpartum depression and emotional trauma.
Last December, Family Frontiers Malaysia and six Malaysian mothers filed a lawsuit in the Kuala Lumpur High Court to clarify their rights under the constitution. Women have previously brought cases concerning their individual applications forward, but this case marks the first constitutional challenge regarding the citizenship clause. The women are asking the court to interpret the constitution’s provisions on nationality in alignment with the 2008 amendment on gender equality in Article 8(2), so children born overseas to Malaysian mothers would automatically have Malaysian citizenship without needing to apply for it. “Our argument is that gender equality is a fundamental liberty so basic to a constitution and to the rights of a person,” Chee said.
Adlyn, a mother involved in the lawsuit who requested a pseudonym for fear of government backlash, has waited nine years for an answer on her son’s citizenship status, who was born before she returned to Malaysia from China in 2016. He is currently on a student visa. The incongruity of the situation still confounds her. “Growing up in Malaysia, I never felt that I was discriminated against because of my gender. And then, suddenly, I learn the hard way that actually men and women are not treated equally in our citizenship laws,” Adlyn said.
The Malaysian government appears determined to strike out the case. In January, it took the first steps, arguing that the constitution is clear on the matter. Home Minister Hamzah Zainudin has insisted there is no discrimination and that citizenship matters are beyond the jurisdiction of the courts. But the Kuala Lumpur high court dismissed this bid, asking the government to justify the current application of the law. Another government attempt to throw out the case in the Court of Appeal was rejected in August. On Sept. 9, the Kuala Lumpur high court decided in the women’s favor, ruling that Malaysian mothers should have the same automatic right as fathers to pass on their citizenship to their children born overseas. Despite this, the government has already appealed the decision, prompting public outrage and a petition that it withdraw its appeal.
If the government continues to deny justice to Malaysian mothers on the basis of their gender, Family Frontiers Malaysia and the women bringing the case anticipate it will eventually make its way to Malaysia’s highest court, where a final decision on the dispute could take at least two years. “We are in this for the long haul. We have nothing to lose,” Chee said. “If we lose the case, we are just where we are. If we win, then it will change the fate of all families in this situation.”