Chicken and egg situation for Penans

Simon Siah

This article was written as part of the Kiniacademy Investigative Journalism programme. Field interviews were conducted in September and October last year. For the full story, log on to https://fijiasia.com/. Watch the video of this story at https://youtu.be/u7JNEnP8jsk

FOR the Penans, it is a chicken-and-egg situation. They can’t solve their community’s problems including poverty if they don’t go to school and get a decent education. But they can’t go to school, if they don’t have identification papers.

It appears that the Penans have an entire system stacked against them. Unless the government is able to acknowledge their problems with the infrastructure problems in rural areas, the issues of statelessness will persist.

Lawyer Kamek for Change (LK4C) director Simon Siah said the main legal barriers for the situation are conditions in the federal constitution.

The federal constitution states that if a marriage is not registered, then citizenship follows the mother.

“JPN (National Registration Department) and the Home Ministry interpret this strictly and even after the parents are properly married and reside in Malaysia, JPN still refuses to consider the child as a Malaysian citizen,” said Siah.

Jasmine Wong

Kuala Lumpur-based lawyer Jasmine Wong concurs. She believes that the problem lies with a rigid interpretation of the Federal Constitution.

Wong acted for a stateless Sarawak-born teenager who was adopted and was refused Malaysian citizenship. The case is before the appellate court after the High Court dismissed her application to compel JPN to recognise the teenager as a citizen.

“In most cases, children who apply for citizenship will apply under Article 15A and this will be rejected many times without any assurance that they will even be approved”, said Simon.

Speaking from experience, he said JPN officers will either brush aside applicants that come from low-income or illiterate families, or claim that the applications are incomplete.

All the more reason that special task forces like the one headed by Sarawak’s Minister of Welfare, Community Wellbeing, Women, Family and Childhood Development Dato Sri Fatimah Abdullah, could be useful as they can vet and make recommendations to the Home Ministry, said Siah.

But again, rejections are common and without any reasons given. Thus, applicants are required to go through the same process of making an application all over again.

Home Minister Datuk Seri Hamzah Zainudin when winding up the debate on Supply Bill 2021 in the Parliament last December said that individuals who do not have an identity card to be given a one-year period to submit valid documents to enable them to obtain citizenship.

However, Selangau Member of Parliament Baru Bian whose office has been working with many stateless individuals since 2013, urged the government to not limit the application window to one year as communication and transport continues to be problematic in the remote areas of Sarawak.

“Transportation and travel were and are still difficult in the remote areas and getting births registered with the government is impossible for many.

“This has caused their children and grandchildren to be labelled as non-Malaysians as their parents or grandparents have no citizenship papers,” Baru said.

Malaysia is a signatory to the United Nations (UN) Convention of the Rights of the Child (CRC).

Article 7 of the CRC states that the child shall be registered immediately after birth and shall have the right to acquire nationality, but Malaysia does not appear to apply this clause.

As experience has shown, simply having filed an application and having the right documents will not guarantee citizenship. Neither does being born in Malaysia matter.

“Malaysia has made a lot of progress in the protection of children as we are the signatory to the Conventions of Rights for Children. We now have the Child Act 2001 and other laws protecting children.

“But we maintain that Article 7 has not been implemented and the government has not given a satisfactory answer to this,” said Siah.

Therefore, he believes that there would not even be a need to have a special task force once Article 7 is applied as JPN can award a child citizenship upon birth.

It is a solution that breaks the cycle of stateless parents giving birth to stateless children.

“The government imposed many requirements and the biggest one of all is documentation,” said Wong.

Her proposal to solve the problem is to also amend the Constitution to recognise a child’s right to citizenship, as long as either one parent is a Malaysian, notwithstanding the marital status of parents, and to not discriminate between adoptive and biological parents.

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