DEAR new government,

People who know the work I do know that I’ve been fighting to get children, including my own, citizenship. Every week, I get letters and text messages from distraught parents and young adults, asking for help and advice.

“What do we do? Our child is stateless. She needs to go to school. I am stateless and already 21 years old.”

Lives ruined or on hold as they wait and wait. You cannot even begin to imagine the anguish and torment of a child from the day he or she is born. Stateless. Condemned to a life of invisibility!

Zara has waited 10 years. Khairy has waited 12. Some people have waited 75 years. Others never received their citizenship and died stateless.

Today, on June 4, the high court postponed listening to the five cases on childhood statelessness. It is the third postponement in three months.

These cases will be argued by some of the best legal minds in the country. I am hopeful, yet afraid, because the right of parents to adopt stateless children hinges on these court decisions.

I will be there again. Everytime you postponed, I was there. I am not a lawyer, but I will be there because not only do I have a personal and vested interest in this issue, but what past policies have done to these children is so morally and legally wrong.

As a mother of stateless children and as a child activist, the day on court, when it finally happens, will determine what happens to many thousands of stateless children in this country.

And, by the way, as a Malaysian, how can you tell me I have no right to pass down my citizenship to my adopted child?

I think of the newspaper articles I agreed to do, the letters I wrote, the research papers I helped draft, white papers for this home minister and a brief for another – so many people helped. Again and again, where is the justice for stateless children and communities?

In the brief below, we pulled lawyers from abroad to help lawyers here, as we prepared to brief the then-prime minister.

I had 10 minutes to present to him.  I gave him the brief and begged. We were told to wait until after the elections. The issue was too sensitive. I was told to shut up. “Bring it up after the elections.”

Well, it’s after the elections and we need to discuss this child rights issue now. How many task forces do we need? The lawyers know the legal rights; the activists know the day to day impact. The communities live it, and the children? The children suffer!

Enough! The time to act is now! Tell us you agree to make this right and let’s get to work!

Below is the brief we wrote on citizenship of stateless children adopted by Malaysian parents. Just one group of statelessness you’d think would be the easiest to address.

Not quite so. Why? Why?

Please read this brief:

Stateless children adopted by Malaysian parents must be granted citizenship

Children are or become stateless for a variety of reasons, such as being born stateless in Malaysia because their parents are themselves stateless, or being born out of wedlock, or because their parents are not known (foundlings, babies abandoned at birth). The exact number of children born stateless in Malaysia is not known.

Stateless children are in a particularly vulnerable position and are at serious risk of suffering abuse, neglect, and violence through, among other things:

1. Lack of healthcare – denied access to basic public healthcare
2. Lack of education – denied access to public education
3. Increased social and financial marginalisation
4. Social isolation
5. Exploitation – commercial, social, and sexual (e.g. prostitution, hazardous labour)
6. Trafficking and/or sale of children
7. Juvenile crime (including gang-related activities)
8. Vagrancy
9. Potential for long term drug and alcohol abuse

Protecting children

While the government of Malaysia has shown tremendous commitment towards ensuring the protection of children in Malaysia, stateless children remain a sizeable category of children who are not afforded adequate protection.

By being stateless, these children who are born in Malaysia cannot be said to be citizens of any other country. It is important that Malaysia – the country of their birth – gives them protection and the opportunity to reach their full potential.

The United Nations’ Conventions state that effective laws on nationality and universal birth registration are the first steps towards resolving the problem of statelessness. Malaysia, however, is not a signatory to any of the UN Conventions relating to statelessness.

Citizenship through adoption

The issue of statelessness may raise complexities, but we should not deny children protection and the right to reach their full potential because of these complexities. As required by Malaysia’s accession to the Convention on the Rights of the Child, and the Child Act 2001, the “best interest” of the child must be our paramount consideration.

The opportunity to grow up in a family unit, with full access to basic healthcare and education, must certainly be seen to be in the best interest of a child. Thus, stateless children born in Malaysia who are adopted into Malaysian families should be granted citizenship, if not automatically, then within a reasonable time-frame.

The law

Article 14(b) of the federal constitution, read with Part II Second Schedule 1(e), provides for citizenship by operation of law to “every person born on or after Malaysia Day” and who “is not born a citizen of any country”.

Section 9 of the Adoption Act 1952 states that “all rights, duties, obligations and liabilities shall vest in and be exercisable by and enforceable against the applicants (i.e. adopting parents) as though the child was a child born to them in lawful wedlock”.

The rights, duties, obligations, and liabilities of the adoptive parents are further strengthened in other legislations, e.g. the Inheritance Act 1971 where “‘son’ and ‘daughter’ respectively include a male or female child adopted by the deceased under the provisions of any written law relating to the adoption of children”.

Adoption by way of the Adoption Act 1952, which is adoption by way of court order, is only available to non-Muslims. Muslim adoptive parents may only adopt by way of the Registration of Adoption Act 1952, which does not have a provision similar to Section 9 above.

Sabah and Sarawak have their own respective ordinances.

Issues

Despite there being a clear legal framework and constitutional right for the acquisition of Malaysian nationality of children who would otherwise be stateless, there are significant challenges with implementation. These include:

1. Adoption provisions for Muslim adoptive parents are more restrictive, undermining the right of adoptive parents to transfer their nationality to their adopted children.
2. There is no clear process or procedure (e.g. adopting parents are often required – without any prior notice – to attend at a JKM office, after two years of bonding with the child, with the biological mother, who often cannot be found after two years, or is reluctant to come forward.
3. Having gone through the process of adopting a child under the relevant legislation, adoptive parents remain uncertain that a stateless child adopted by them will be able to obtain citizenship. Often they are required to submit applications under Article 15A of the federal constitution, repeatedly, only to face rejection sometimes up to two years’ later upon the discretion of the minister. Sometimes, parents do not receive an explanation as to why the application is rejected. Finally, they have to apply to the court for a declaration, which is not only costly, but time-consuming and wholly detrimental to the best interests of the child.
4. Despite providing a clear legal basis for nationality, Article 14(b) of the federal constitution remains largely unimplemented. This has a significantly detrimental impact on the adoptive child and on the entire family.

Conclusion

While the federal constitution provides significant safeguards against statelessness, there are also gaps in implementation. This has a profound effect on foundlings who do not acquire nationality automatically, as the decision to grant citizenship ultimately rests with the home minister.

Our recommendations for all adopted children:

1. Review and amend current adoption laws, particularly with regard to strengthening the review process for potential adoptive parents and standardising the process generally. Consideration should also be given to shortening the two-year waiting period for Muslim adoptions.
2. Ratify or accede to the Convention on the Protection of Children and Co-Operation in Respect of Inter-Country Adoption, and in the process of doing so, harmonise adoption laws and procedures to be in line with the standards required by the convention. This will help simplify the adoption process for prospective parents to adopt refugee children and also make adoption of Malaysian children by overseas parents a more viable option.
3. Ensure that children’s shelters and homes are monitored according to international best practices.
4. Ensure JKM and JPN officers receive all necessary training and resources to investigate and facilitate adoptions, and in particular, to ensure that the best interests of the child are protected.

Our recommendations for all stateless children adopted by Malaysian parents:

1. The full implementation of Article 14(b) of the federal constitution to ensure that all otherwise stateless children who are born in Malaysia acquire Malaysian citizenship
2. In keeping with the constitutional right of the child to Malaysian citizenship and the right of the adoptive Malaysian parent to transfer citizenship to their adoptive child, any child lawfully adopted by at least one Malaysian parent should be recognised as a Malaysian citizen.
3. All procedures related to the acquisition of nationality of adoptive children should be simplified and expedited, in line with constitutional principles and the best interests of the child.
4. As part of the adoption process, in order to protect the best interest of the child, the NRD should be prepared to accept sworn statements and other evidence from the child and the relatives on the child’s birth in Malaysia and whether foreign citizenship was indeed obtained within a year after birth, with the burden being on the NRD to disprove such claims.
5. The adoption acts should be reviewed so that the entire process and laws are streamlined, with necessary minor variations made to comply with shariah law, within the framework provided by the constitution. The streamlined process should be made public and readily available at all JKM and NRD centres so that adopting parents are fully cognizant of the process and timelines, should they wish to adopt.
6. If citizenship is not granted automatically, adoptive children should be put on a path towards being granted citizenship within 12 months of the commencement of the adoption process. This should be sufficient time for the relevant government bodies to ascertain whether the child is a citizen of another country, and in the case of a child whose biological parents are unknown or cannot be located, to make efforts to locate the biological parents. Where no proof of other citizenship is obtained, or where the biological parents are not found, the child should be granted citizenship.
7. Create a process to allow for international adoptions. Ratify the 1993 Hague Convention on Protection of Children and Cooperation in Respect of Intercountry Adoption.

I had waited 12 years to have those 10 minutes to present and spoke hurriedly. No one listened.

This postponement today in court was a huge disappointment. Again? Why?

The deputy prime minister has said he’ll form a task force to study this issue. How long have we studied this issue? How long do children have to wait? How long do parents have to hold their breath?  How long do families have to stay invisible? Living in fear? Regarded as pariahs? Outcasts? A month, two months? We want resolutions now.

Tell us what to do. Have me work with the rest of your team. You need civil society groups and activists working on the issue, not just lawyers and government officers.

Do you understand the impact? Do you understand child rights? Do you understand the impact of statelessness in the different group? Do you agree who is stateless? Look at the UN Convention on the Reduction of Statelessness 1961. There’s a framework to start with here.

I promise to work day and night to find resolutions to this issue. I’m a good researcher. A pretty loud activist and a mother who wants to protect her children. I can start the legwork even if I’m not a lawyer. I’ll hold the legal books, bring the coffee, or order takeouts for the task force. But start now. Do something now. The wait must end.

* Tini Zainudin is a children’s rights activist with Yayasan Chow Kit/Voice of the Children.

* This is the opinion of the writer or publication and does not necessarily represent the views of The Malaysian Insight. Article may be edited for brevity and clarity.