Malaysia

KEY ISSUES

• Several groups are affected by or at risk of statelessness in Malaysia, including indigenous peoples, foundlings and children impacted by gender discriminatory nationality laws, refugees, migrants and their descendants as well as people who came to or were brought to Malaya prior to Independence in 1957, or to the British Crown Colonies of Sarawak and North Borneo (now Sabah) prior to the formation of the Federation of Malaysia in 1963.
• Gender discrimination persists in Malaysia’s citizenship laws: Malaysian women cannot confer citizenship automatically on their children born outside the country. 
• Although the Malaysian constitution contains safeguards to prevent childhood statelessness, including for foundlings, these are ineffective in practice due to poor implementation.
• Constitutional amendments are being considered that would grant equal citizenship rights to children born overseas to Malaysian women, but would narrow the scope of safeguards against childhood statelessness and make it harder for other groups to access citizenship.
• Malaysia has not acceded to either of the UN Statelessness Conventions, nor is it a state party to the ICCPR and the ICERD. It also maintains reservations on provisions relating to the right to a nationality in the CRC (Article 7), CEDAW (Article 9) and CRPD (Article 18).

STATELESSNESS IN MALAYSIA

Statelessness is a widespread phenomenon in Malaysia. Among the groups at risk of or affected by statelessness in the country are: people who have resided in Malaysia since pre-independence as well as their descendants but were not able to acquire or establish citizenship (including individuals of Tamil ethnicity and populations in East Malaysia), children of mixed-nationality marriages (through the impact of gender discriminatory citizenship laws), indigenous peoples (including mobile maritime populations and Orang Asli communities), refugees and migrants (especially in the context of irregular migration) and their children, foundlings and abandoned children, and other people who lack documentation.

Malaysia has the third largest reported stateless population in Southeast Asia, with 117,070 stateless people in the country at the end of 2023, according to  UNHCR. This figure does not capture everyone who is affected by statelessness in the country, but comprises 107,678 stateless Rohingya in Malaysia and 9,392 non-displaced stateless persons in West Malaysia “who may be entitled to Malaysian nationality under the law”. Between 2016 and June 2023, over 16,000 stateless people in West Malaysia were registered in a mapping exercise conducted by Development of Human Resources for Rural Areas (DHRRA) Malaysia. An estimated 7,000 have been recognised as Malaysians, while 9,392 remained stateless. These figures only account for cases of statelessness that relate to the pre-independence context and childhood statelessness cases (such as foundlings/abandoned children, stateless children adopted by Malaysians and children born out of wedlock to Malaysian fathers) and do not include stateless people in Sabah and Sarawak (East Malaysia) or the West Malaysian states of Kelantan and Terengganu.

Pre-independence arrivals in Malaysia include mainly Indian and Chinese migrants and their descendants who arrived in the country through a labour recruitment system. Currently, a significant proportion of communities, mostly of Indian Tamil origin, lack the necessary documentation that would allow them to prove their intergenerational links to Malaysia and their Malaysian citizenship. This is because they have historically faced significant barriers in accessing civil documentation, due to the discriminatory application of laws and policies and their isolation. 

While previously welcomed and supported by Malaysia, Rohingya refugees and asylum seekers have never gained full and effective protection. In recent years, Rohingyas in Malaysia are facing increasing discrimination and abuse, including arrest and detention. Rohingya refugees who have tried to reach Malaysia by sea have also been pushed back by the Malaysian authorities. Since there are no opportunities for Rohingyas to regularise their legal status over time, the precariousness of work, education and health for stateless Rohingyas is experienced across multiple generations.

Malaysia has not acceded to either of the UN statelessness conventions and has no statelessness determination procedure or protection system in place. Statelessness and gender-discriminatory citizenship laws have far-reaching and deeply detrimental consequences on the enjoyment of other human rights for the individuals and families affected in Malaysia. Stateless and non-citizen children face challenges enrolling into the national school system, despite the establishment of the Zero Reject Policy in 2018. This policy still requires one parent to be a Malaysian citizen with an identification card, which excludes stateless children without a citizen parent or whose parents lack documentation. Stateless children and non-citizen children with a Malaysian parent can access public health care but do not qualify for subsidised rates that are available to citizens. Stateless people face difficulties in accessing formal employment leading to many resorting to working in the informal sector or dangerous jobs with a high risk of exploitation. Stateless people are also unable to access basic services such as opening bank accounts, holding a driver’s licence or accessing telecommunication services, making it difficult for them to participate fully in society. Without access to legal documentation, stateless persons, especially the Bajau Laut community, also face a lack of access to fundamental services such as clean water and electricity. 

THE RIGHT TO NATIONALITY IN MALAYSIA

The Federal Constitution of Malaysia provides the primary legal framework for the acquisition and loss of Malaysian nationality. Citizenship can be acquired by birth, registration or naturalisation, combining jus sanguinis and jus soli elements. The Constitution contains safeguards against statelessness, providing that “every person born within the Federation who is not born a citizen of any country otherwise than by virtue of this paragraph” is a citizen by operation of law (Section 1(e) of Part II of the Second Schedule). This means that irrespective of the parents’ citizenship, all stateless individuals born in Malaysia, who have not obtained any other citizenship, should automatically be entitled to citizenship. The Constitution also grants citizenship automatically to foundlings and abandoned children (Section 19(B) of Part III of the Second Schedule, read with Section 1(a) of Part II of the Second Schedule) and the Adoption Act recognises adopted children as having the same legal standing as biological children (Section 9(1) of the 1952 Adoption Act). However, these safeguards have proven to be ineffective, due to the absence of administrative guidelines for implementation and the lack of adherence to the legal safeguards by implementing bodies.

Obtaining a birth certificate is a crucial prerequisite for acquiring other identity documents and citizenship in Malaysia. Registration is not automatically granted at the time of birth. Instead, individuals are required to actively register their births with the National Registration Department of the Malaysian Government to obtain a birth certificate. Lack of timely birth registration and parents’ marriage registration status contributes to the issue of statelessness.

Malaysian women do not have equal rights as men to confer automatic citizenship on their children born outside the country. Malaysian men can rely on Sections 1(b) and 1(c) of Part II of the Second Schedule of the Federal Constitution which state that a person born outside Malaysia is a citizen by “operation of law” if the father is a citizen. Malaysian women must rely on Article 15(2), where citizenship is by application – an arbitrary and inconsistent process in practice, filled with delays and a slim chance of approval. Malaysian women are also denied the right to confer nationality on a non-citizen spouse. Malaysian men can confer citizenship on their spouse after two years of residence in the country but the spouse of Malaysian women can only access citizenship by naturalisation, which is available to any non-Malaysian and requires twelve years of residence.

Children born outside a legally recognised marriage to Malaysian fathers and non-Malaysian mothers do not have the right to inherit Malaysian citizenship. Malaysian fathers rely on article 15A which foresees that the Federal Government can in special circumstances register any person under the age of twenty-one years as a citizen. However, this Article has not been prioritised to register stateless persons. In the case of CTEB & Anor. v Ketua Pengarah Pendaftaran Negara Malaysia & Ors., the Federal Court ruled in May 2021 that an “illegitimate” child born outside Malaysia to a Malaysian biological father and a non-Malaysian mother is not entitled to become a Malaysian citizen by operation of law.

THE BAJAU LAUT COMMUNITY

The Bajau Laut, a coastal and sea-faring population residing in Sabah in East Malaysia, are one of the groups affected by statelessness in Malaysia. Many Bajau Laut lead a semi-nomadic lifestyle living in houseboats or stilt houses over the water or on islands, and they depend for their livelihood on marine-based income sources. As a traditionally mobile and migratory group, they have historically moved between the islands of the Sulu-Sulawesi Seas, which now are divided been the nation-states of Malaysia, Indonesia and the Philippines. 

Many Bajau Laut living today were born in Malaysia and would be entitled to citizenship under the law according to Section 1(e) of Part II of the Second Schedule of the Federal Constitution. However, the vast majority are not recognised by the Malaysian state, are denied the right to citizenship and face intergenerational statelessness. The community also lacks access to documentation such as birth certification, as well as to basic services, due to their presence in hard to reach and isolated locations, as well as active discrimination, marginalisation and exploitation. 

Accurate estimates of the Bajau Laut population, including data on those likely to be or at risk of statelessness are difficult to ascertain, due to their mobile lifestyle and presence in hard to reach locations. Further, cross-border movements between Sabah and the southern Philippine islands continues to this day.

The content on this page was reviewed by Family Frontiers, DHRAA Malaysia, Nationality for All and Helen Brunt.

[Last updated December 2023]

Cover photo by Greg Constantine