It is well known that a large number of Sabah’s inhabitants are
saddled with a complicated legal status. The luckier ones are migrants with
proper documentation proving their permanent residence or refugee status. But
many do not have proper documents, and some are even without a nationality.
These are indeed “stateless people”.
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.
The stateless foreigners in Sabah come from descendants of
Filipino refugees of the 1970s, children from illegal marriages between
Filipino and Indonesian illegal migrants and locals who have blended into Sabah
with no roots to their homeland.The ethnic Bajau Laut people, or sea gypsies
fled to Sabah in order to escape the war between the Philippine government and
the independent movement by the Moro National Liberation Front, resettling in
many parts of the state such as Lahad Datu, Semporna and Sandakan.
It is a complex problem that festered over the decades and today,
their countries of origin refuses to accept them back or do not recognise them
as their citizens.
Like their parents or grandparents, the offspring of these
migrants have no legal status to work, live, marry or buy a house on Sabah
land.
The coastal areas surrounding the island, Pulau Berhala, were
covered in garbage, animal carcasses and human waste, due to the absence of a
waste management system.
Seemingly oblivious to the murky waters, the brothers would tread
around barefooted collecting plastic bottles, wooden planks or metal sheets —
anything that could potentially be sold for pocket money.
 |
| PULAU BERHALA’S ONLY SCHOOL: TWO TEACHERS, 236 STUDENTS |
The school was set up by the Malaysian military, which has a
strategic base at the island to patrol the waters and protect Sabah from
militants coming from southern Philippines.
The school aims to equip stateless children with the basic
educational skills of reading, writing and counting, but it does not offer its
students the opportunity to take national examinations or to graduate with any
certificate that will help them apply for a job.
The school, built in 2010, is attended by students aged four to
17, and is located next to the Pulau Berhala army camp.
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.
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.
