Undocumented does not mean illegal – an update on stateless communities in Sabah and Sarawak

In a previous blog I wrote about the many stateless people living in the states of Sabah and Sarawak in Malaysia and the plight that they face as the authorities in Malaysia ignore the true extent of the problem.  Sabah and Sarawak states are on Borneo Island, part of East Malaysia.

In this blog, I look again at the challenges the stateless and undocumented communities of Sabah and Sarawak continue to face.  Challenges which include the ongoing narrative against them and which have been made worse by Covid-19.

 

Equating history with documentary evidence

For a fuller background on how so many people in that part of Malaysia ended up stateless and undocumented, take a look at my previous blog.  In short, being born in Sabah or in Sarawak does not make a person automatically a Malaysian citizen.  To obtain Malaysian citizenship, at least one parent must be Malaysian, and documents must be available to prove this to the authorities.  This not always easy to achieve.

The difficulty that these communities face is further fuelled by an ongoing narrative that many of the people living in Sabah and Sarawak are nothing more than illegal immigrants.  Many were victims of the 1970s and 1980s civil war in the Philippines, from which they or their parents escaped.  In fact, many are 3rd or 4th generation stateless and are better described as undocumented rather than illegal.

 

Contact with the authorities worse than contact with Covid-19

The impact of Covid-19 on the population of Sabah and Sarawak is finally being addressed by Malaysia’s authorities.  Door to door testing is under way and in November the Malaysian Health Ministry discussed setting up a quarantine centre for the island community of Pulau Omdal, off the coast of Sabah state ¹.

But the health initiatives are likely to have limited effect.  The undocumented communities have suffered years of persecution, and are now fearful of being approached by authorities looking to test and treat those who have tested positive ².  The choice they have to make, between health and safety, is made all the more difficult when, on one hand, authorities acknowledge the need to provide health care, yet in the same breath speak of involving the Immigration Department.

 

Documents without rights

It is frustrating that the despite Sabah being so badly affected by the pandemic, the main narrative about its undocumented and stateless inhabitants has little to do with their rights and everything to do with ostracising them further.  As recently as this September, the focus for a local MP was to document individuals so that authorities can trace anyone suspected of a crime.  The motivation for this seems to be quelling discontent over access to jobs from other communities rather than ensuring that the Sabah stateless can access basic services such as healthcare, education and social security ³.

Even those in Sabah and Sarawak that do possess identity documents are in a precarious position.  The range of documents include the IMM13 cards ⁴, and others such as a “census certificate”.   The IMM13, some politicians claim, is the only legitimate document that allows residence and employment to card holders.  The census certificates and others are considered invalid travel documents conferring no immigration status on the holder ⁵.  Plans were afoot to replace the range of identity documents with a standard identity document, the Sabah Temporary Pass or PSS ⁶.  Issuing this document acknowledges that many undocumented and stateless individuals are living in and contributing to Malaysia’s economy for generations.  This plan was abandoned ⁷ only to be revived again under a different guise ⁸ leading to yet more uncertainty.

Efforts to resolve the statelessness crisis in Sabah are shaped by the narrative of treating undocumented residents and whole communities as illegal migrants.  This is clear from the fact that there is no intention to create a pathway from documentation to citizenship and access to full rights for Malaysia’s stateless population ⁹.   Documentation that does not lead to access to basic rights, such as healthcare and education ¹⁰ will do nothing to improve the lives of Malaysia’s stateless community.

 

The Constitution and international norms left out of the narrative

Malaysia continues to ignore its own Constitution when it comes to its treatment of stateless children.  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.  Anecdotally, parents and children seeking protection under the Constitutional provisions have to provide extensive documentary evidence.  This is something which those who are undocumented cannot do.  Even the claim by Malaysian authorities that many stateless children have been abandoned by their parents ¹¹ does not appear to have caused a rethink of the demands placed on applicants for naturalisation.

Malaysia also continues to ignore international norms on reducing statelessness and the right to nationality.  I have already written about the fact that the state is not a party to either of the Statelessness Conventions.  Previously, Malaysia entered reservations to the provisions relating to a right to nationality under Article 7(1) of the 1989 Convention on the Rights of the Child.  Nor has it ratified the 1996 International Convention on Civil and Political Rights which requires similar commitment in its Article 24(2).

It now seems that the Malaysian government does not even wish to take part in the global conversation on reducing, and eventually eradicating, statelessness.  For example, at the October 2019 UN High-Level Segment on Statelessness, it was one of the few states not to pledge to reduce statelessness or to mitigate its effects by providing strengthened protection for its stateless residents.  Many of the other states which took part in the High-Level Segment pledged a range of improvements.   Some to their domestic laws, some to ratify or accede to the Statelessness Conventions or to set up a statelessness determination procedure.  I have written about the importance of such a procedure here and here as a key safeguard for stateless and undocumented people.

 

Political will, but towards the wrong goal?

Life for the stateless and undocumented communities in Sabah and Sarawak is hard.  It is especially hard for the children who have known no other home than Malaysia.  They are ostracised and blamed for the perceived sins of their parents ¹².  The situation has worsened since the start of the pandemic.  The Malaysian authorities seem unable or unwilling to settle on a progressive and inclusive policy to deal with the issue continues to deny basic rights to those communities.  This comes at a time when it is needed more than ever.

In my recent blog on the Kyrgyz Republic’s success in eradicating statelessness within the republic, I quoted the views of last year’s recipient of the Nansen Award, Azizbek Ashurov, on the recipe for success.  In his experience, “if governments will make a political decision to end this, they can”.  Sadly, for the people of Sabah and Sarawak not only is this political will lacking, but the authorities are actively shaping the narrative to promote their exclusion.