I am a person from here – the Sabah stateless struggling without citizenship in Malaysia

In this blog I consider the stateless population in Sabah state, part of Malaysia, how and why they are in this precarious position and what, if anything, Malaysia is doing to reduce the number of stateless people in Sabah.

 

Who are the Sabah stateless?

Sabah is a state in Malaysia and part of the island of Borneo.  Sabah became part of Malaysia on decolonisation when several territories under British rule joined together as a federation.  The federation included Malaysia, the islands of Singapore (independent since 1965) and the colonies of Sabah and Sarawak in northern Borneo ¹.  The population of Sabah is diverse and includes Kadazan people (also known as the Dusun), the Bajau, the Malay, the Murut, Kedayan, Orang Sungei and Bisaya people alongside the descendants of migrant populations from nearby countries ².

The stateless people of Sabah are primarily descendants of Filipino or Indonesian migrants who came to Sabah in the 1970s and their descendants, as well as many of the indigenous inhabitants of Borneo.   According to the UNDP ³, four distinct populations in Sabah are considered undocumented or stateless; 1) Citizens who are undocumented (Indigenous people such as the Dusun, the Rungus (a sub-group of the Dusun), the Iban and the Muru ⁴; 2) Filipino refugees including the Suluk people and Indonesian migrants; 3) Bajau Laut nomadic fishermen community; and 4) others who are undocumented including children of migrant workers.

Some stateless people in Sabah are 3rd or 4th generation stateless.  The current number of stateless people in the region is estimated to be about 800,000 ⁵.

 

Why are the Sabah stateless?

Being born in Sabah or Sarawak does not automatically make a person a Malaysian citizen. One of the child’s parents must also be Malaysian ⁶.  But even if one parent is Malaysian, without the right papers to prove it, the child is left stateless.  And so are his or her children.   Many stateless people who might be eligible for citizenship do not know how to go about obtaining the relevant documents and are faced with a lengthy process.  Undocumented Sabah residents fear exposure and expulsion. This, in turn, leads to reluctance to register the birth of their child, perpetuating the cycle ⁷.

Sabah residents from the Philippines were refugees from the civil war that raged in the country in the 1970s and 1980s.  As they did not have documents to prove their legal identity, their children were left unregistered and stateless.  But that is not the whole story. Part of the ease with which the stateless status of the people of Sabah has been ignored is due to the perception that all are descendants of illegal immigrants.  In fact, many are simply undocumented at birth rather than illegally in Malaysia ⁸.  And in any event, they have nowhere else to go if expelled from Sabah.  The Philippines no longer recognise Filipino migrants to Sabah as citizens ⁹.

 

Statelessness amongst Malaysia’s indigenous people

Minority groups, such as the Dusun and the Iban, are often left undocumented and at risk of statelessness because they are not subject to immediate and universal birth registration.  With no political representation in Malaysia’s Legislative Council their needs are often unmet, and their rights are left unsecured.

Once again, the argument recently made by the UN Special Rapporteur on Minority Issues that statelessness is first and foremost a minority issue comes to mind ¹⁰.  I wrote about this recently in relation to the stateless Kurdish population in Syria here. The fact remains that the problem of statelessness affecting some 10 million people today cannot be resolved while minorities are targeted or disproportionately affected in ways which result in individuals becoming or being born stateless.

 

Education forbidden, access to rights forbidden

I have written about all the things that stateless people, and especially stateless children, cannot do here and here, the gravest of which, for a child, are lack of healthcare and lack of education.  In many countries, (for example, Kuwait – see my blog here) children who are not citizens of the state cannot attend school.

In Sabah state even the schools the community build for themselves, and which are outside the formal education system, are regularly destroyed.  It is to the credit of the stateless Sabah community that they recognise the value of education for their children, and rebuild those schools again and again ¹¹.

A writer for New Mandala (an academic website which publishes on a range of issues of relevance to South East Asia) has met and sets out some of the personal histories of stateless children born in Sabah to foreign parents or who have a complex immigration history. It is worth a read ¹².  The backgrounds of the children the writer met are different, but the consequences are remarkably similar.  Parents too frightened of the repercussions of seeking out a legal identity for themselves and their children.  Children unable to attend school or have access to the full complement of rights to which they should be entitled.

 

What protection is available under international law?

Malaysia’s somewhat lacklustre commitment to eradicating statelessness and to providing a legal identity for all is evidenced by its reservation to the right to nationality under Article 7(1) of the 1989 Convention on the Rights of the Child ¹³ and by its non-ratification of the 1996 International Convention on Civil and Political Rights which requires similar commitment in its Article 24(2).

When it comes to protecting stateless people within its borders and reducing statelessness, Malaysia relies on Constitutional protections as it is not a State party to the 1954 Convention relating to the Status of Stateless Persons or the 1961 Convention on the Reduction of Statelessness.  Under the Constitution, every person born in the country who is not born a citizen of any other country and who does not acquire any other citizenship within a year of birth is a citizen of Malaysia by operation of the law.

The Constitutional protections are strong in theory, but in practice offer limited protection. To make use of the Constitutional protection, parents and children must provide extensive documentary evidence.  Identity documents are often not available to many stateless people in Malaysia.  Furthermore, there is no statelessness determination procedure which can lead to an official finding of statelessness to then eventually facilitate the acquisition of citizenship.  I have written about the importance of having a statelessness determination procedure here and here.  The burden under the Constitution is on the applicant to prove statelessness.  And, as always, proving a negative can be incredibly difficult.

 

Campaigns to reduce statelessness in Malaysia

A secure legal identity, maybe even citizenship, could yet be the future for Sabah’s stateless population.

Since 2017, the Government of Malaysia added statelessness to its national policy agenda, although the focus was the Tamil population in West Malaysia rather than the Sabah stateless population ¹⁴.  Its plan for the stateless Tamils is to resolve documentation and statelessness issues within 5 years.  This level of recognition, even if it mainly targets one minority group, is a good start.  As Catherine Allerton, who has written extensively on statelessness in Malaysia, has found, the main factors which contribute to the ongoing statelessness problems are “the presentation of statelessness as a nonissue and the assumption that stateless children are “street children”“ ¹⁵.

When it comes to the Sabah stateless, for the last year 21 NGOs have been working together to assist the Malaysian government to resolve the issue of statelessness in Sabah ¹⁶.  The first step for the Sabah Coalition of NGOs was to collect data to better understand the level of statelessness in Sabah ¹⁷ and to put together a list of government policies that will need to be reviewed ¹⁸.  In terms of active involvement, a number of NGOs are providing paralegal advice and help to stateless children.  They have called for a change to all policies which discriminate against stateless or undocumented children.

 

What hope for the Sabah stateless?

The focus is now turning specifically to Sabah’s stateless residents. As recently as March 2019 there is evidence of the Malaysian government’s willingness to take action to legalise and document Sabah-born children which have at least one Malaysian parent ¹⁹.  The problem remains how and whether children will be able to provide the necessary proof of being born in Sabah and that one of their parents is indeed Malaysian.  Nor is it reassuring to hear that the plan remains to deport (to where, it is not clear) children with two foreign parents, or who cannot prove that they are Malaysian.

Recognition of the problem is a good start.  But recognition of the problem must involve recognition of the challenges that many of the Sabah stateless will face in providing sufficient proof of their place of birth or parents’ citizenship to benefit from any programme that helps to secure their legal identity.