By Bernama | Malay Mail

Children walk past a mural featuring the Malaysian flag in Kuala Lumpur, July 21, 2020. — AHMAD ZAMZAHURI

Single mother Mawar (not her real name) has to be extra nice to her estranged husband who she describes as controlling and emotionally abusive.

In the past, the 40-something Malaysian woman said he tried to control what she could wear and do. It did not work. Now, he is using their young son’s citizenship to control her, with better success.

“I have to be quiet and be a good girl. I can’t fight, can’t do anything. I have to follow whatever he says to keep the child here with me,” she told Bernama when contacted at her home in the Klang Valley.

Leaving her husband, who is a foreigner, is out of the question for now as divorcing him means she may lose her son, who is also considered a foreigner under Malaysian law as he was not born in this country.

Custody battles between divorcing couples are nothing new, but when it involves binational marriages and children with a different nationality than that of one of their parents, complications will arise.

Currently winding their way through the court system are two cases that may help reduce such complications and settle the issue of whether Malaysian women have the right to confer citizenship on their foreign-born children, with the first hearing of one of the cases at the Court of Appeal scheduled for Nov 2.

Malaysia is one of 25 countries where the foreign-born children of binational couples follow their father’s nationality. For Malaysian women married to foreigners, children get automatic citizenship if they are born in Malaysia. 

If they are born overseas, the mothers will need to apply for citizenship for their children, a process that is lengthy, opaque, and confusing. Most applications are rejected with no reason given. 

Mawar thinks if her son can get his Malaysian citizenship, she will be on even footing with her husband with regard to custody.

“Once (my husband) was upset with me for some reason and he went incommunicado. He didn’t contact me for one-and-a-half years so I was really in a difficult situation. if he didn’t contact me, how am I going to renew my son’s passport?… Luckily, he resurfaced. Then I knew I had to be very, very careful. If not, it’s my child who will suffer,” she said. 

Her husband could not be reached for comment.

Citizenship effect on custody

Human rights lawyer Edmund Bon said Mawar’s case does not surprise him, saying the biggest complications with binational marriages are divorce and custody “because citizenship plays quite an important role in how the courts decide (custody)”.

He said citizenship also involved the right to reside. Should the mother and child have different nationalities and live abroad, the mother may not be allowed to remain in the same country in the event of a divorce. 

As such, many women feel they have no choice but to stay in bad, even abusive marriages so as not to lose custody of their child. And if they try to leave their husband, they may run afoul of the countries’ and international laws governing child abductions and custodial interference.

Women’s rights activist Charlene Murray said her group, Women’s Aid Organisation (WAO), has received some calls from desperate women overseas, some of them in abusive marriages, asking for help to return to Malaysia with their children. 

“The first advice that we usually give them is to sort out (custodial) matters in the country that they are residing in,” she said.

She said the women end up trapped in an untenable situation where they have to navigate often complex immigration laws of two or more countries on top of having to worry about their safety and trying to leave.

Malaysian men also run the risk of losing custody of their children when their marriage to a non-Malaysian woman fails, even if the divorce takes place in Malaysia. However, because their children automatically receive Malaysian citizenship regardless of the place of birth, their citizenship is unlikely to have much effect on divorce outcomes here or overseas. 

“Citizenship would not be a main factor in divorce proceedings, no. (Depending on the country,) it would be treated as any other divorce,” said Malcolm Fernandez, lawyer and president of Father’s Rights Association of Malaysia (FRAM).

But for women, when a marriage breaks down for whatever reason, custodial agreements involving a child with a different nationality than the mother’s can be hard to finalise, as 37-year old Li Li Tee knows. 

But she was lucky. Unlike many of her friends in her support group, her Chinese national husband chose not to fight for custody. After three years’ estrangement, she was granted custody of her four-year-old daughter. 

However, she is afraid to ask for alimony and more than the basic minimum of child support for her daughter in case her husband changes his mind. They both live and work in Italy.

“I feel full custody is more important than money,” she said. 

“It’s okay, I can work hard. I can wake up early. I can try to earn more by myself.”

Mawar and Li have applied for Malaysian citizenship for their children; one was rejected and the other pending. After years of fighting for the issue, the tide may be turning for them and others like them.

For the most part, public sentiment is with the mothers. Many, including ministers, acknowledge the hardship the women go through. Home Minister Datuk Seri Hamzah Zainudin and Women, Family and Community Development Minister Datuk Seri Rina Harun are among others who have gone on record expressing sympathy.

In the works

At the moment, there are two ways the issue is playing out in Malaysia: judicially and legislatively.

On the judicial front, the Malaysian government is currently waiting for clarification on the reading of the Federal Constitution on whether the word “father” should be read as “parent” in conferring citizenship on foreign-born children of Malaysian mothers in binational marriages. 

The Kuala Lumpur High Court came out with two differing opinions on the issue of women’s rights to confer citizenship on their foreign-born children — Mahisha Sulaiha Abdul Majeed’s case on May 21, 2020, and the recent case of Suriani Kempe and six other mothers on Sept 9. 

In the first case, Mahisha argued that the word “father” as the person who has the right to confer citizenship through blood could mean either parent. The court disagreed saying if the drafters of the Constitution intended to mean one of the parents, they would use the phrase “whose parent one at least” (meaning at least one of the parents) and therefore Mahisha had no right to citizenship.

In the second case, Suriani et al argued that giving only Malaysian fathers the right to confer citizenship on children born outside Malaysia was discriminatory and should therefore include mothers. The court agreed, saying “the word father includes the mother” and instructed the government to extend the same rights to confer citizenship to women.

The government has appealed the second ruling while waiting for the outcome of Mahisha’s appeal. Lawyers for Mahisha told Bernama they plan to take their case to the Federal Court if necessary. 

The process, however, may take years to resolve.

At the same time, the government has announced its intent to amend the Constitution to make it easier for Malaysian mothers in binational marriages to confer citizenship on any child born overseas.

Home Minister Hamzah had told a press conference on Sept 24 that taking into account the two different rulings with court proceedings on the Mahisha case still ongoing at the Court of Appeal, the Cabinet agreed to proceed with its appeal and application for stay of execution over the High Court decision in Suriani’s case.

“In the Cabinet meeting earlier, we invited Attorney General Tan Sri Idrus Harun to provide an explanation. The Cabinet has asked the Attorney General to also bring the issue to the Deputy Yang di-Pertuan Agong, Sultan of Perak Sultan Nazrin Muizzuddin Shah, in the near future,” he said.

The government will need to get the consent of the Conference of Rulers before tabling a bill in Parliament to amend the citizenship provision to make it easier for Malaysian mothers in binational marriages to confer citizenship. A two-thirds majority is needed to pass the bill. 

On Oct 26, the Home Ministry reported that only 21 children born to Malaysian women overseas were granted citizenship, out of 2,352 applications made between 2018 and Oct 11, 2021, which translated to an approval rate of 0.89 per cent. To date, 31 applications were rejected while the others are still pending.

Previously, the ministry had reported that 142 children were approved for citizenship between 2013 and 2018, while 3,715 applications were rejected and 4,959 are still pending. This translated to a 1.6 per cent approval rate.