STATELESS CHILD IN SABAH

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.