Asia Malaysia Children born out of wedlock in Malaysia: Malaysian citizens or not?

Children born out of wedlock in Malaysia: Malaysian citizens or not?

If a child is born before his/her Malaysian father and non-Malaysian mother have been legally married, the child will adopt the non-Malaysian mother’s citizenship and will not be entitled to follow the Malaysian father’s citizenship

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Under current Malaysian laws, a child born in Malaysia from a Malaysian father and a foreign mother is not a citizen of Malaysia.

How is this so?

A specific provision stipulated under Section 17 of Part III of the Second Schedule of the Federal Constitution, the phrase “one of his parents” or terms “parent” or a “person’s father” for an illegitimate person will be interpreted as referring to his/her mother.

This means that if a child is born before his/her Malaysian father and non-Malaysian mother have been legally married, the child will adopt the non-Malaysian mother’s citizenship and will not be entitled to follow the Malaysian father’s citizenship.

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On the other hand, a child born in Malaysia to a non-Malaysian man and Malaysian woman even before their official marriage is automatically a citizen of Malaysia.

This is a clear case of gender inequality and discrimination. But can the law be changed?

There are calls for the government to make changes in the country’s citizenship laws to ensure that equal rights for Malaysian men and women are provided thereby giving them the right to confer Malaysian nationality on their spouses and children.

According to the Joint Action Group for Gender Equality (JAG), there are three key provisions in Malaysia’s nationality laws that discriminate on the basis of gender.

One, while the Federal Constitution guarantees citizenship to children born overseas to Malaysian fathers, it is silent on children born overseas to Malaysian mothers.

“Consequently, many Malaysian mothers are unable to secure Malaysian citizenship for their children born overseas,” JAG spokesperson said.

Second, the Federal Constitution does not allow for Malaysian fathers to confer nationality on their children who are not born within a legally recognised marriage.

“These children then face great difficulties enrolling in school, accessing public healthcare, and finding employment later in life.”

Third, the Federal Constitution allows foreign spouses of Malaysian men citizenship by registration, if they fulfil several criteria, including residing in Malaysia for two years.

“However, foreign spouses of Malaysian women can only apply for citizenship by naturalisation, after residing in Malaysia for 10 years.”

JAG reiterated that these discriminatory laws, which affect the lives of many Malaysians and their families, are inconsistent with the spirit of the Federal Constitution, that supposedly guarantees equality and prohibits gender discrimination.

“In a democracy based on rule-of-law, all citizens must be treated as equal before the law and, thus, be given equal right to confer nationality on their children and spouses, regardless of gender.”

At present, Malaysia is one of only 3 countries in the world that deny men equal rights in conferring nationality on children who are not born within a legally recognised marriage, and one of only 25 countries that deny women the right to confer nationality on their children on an equal basis with men.

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