The State We’re In: Sex-Discriminatory Nationality Laws in Asia

At the start of the year 2022, eight Asian countries – Bangladesh, Malaysia, Brunei, Nepal, Pakistan, Philippines, Singapore, and Thailand – had sex-discriminatory provisions in their citizenship laws. This means that women in these countries are denied or accorded unequal rights to pass on their citizenship to their children and/or spouses. 

Of these countries, Malaysia and Nepal have recently taken steps to address discrimination in their respective citizenship laws, although they have not yet gone far enough to comply with international law. 

Nepal – Conditional Progress

On July 22, 2022, Nepal’s House of Representatives endorsed and passed an amendment to the Nepal Citizenship Act, 2006. The fast-track motion pushed along amendments that had been pending in the country’s parliament since August 2018. This bill was then passed by the upper house, the National Assembly on July 28, 2022. The bill now awaits the signature of the President of Nepal to become a law. 

The amendment addresses some long-standing demands for changes in the law, significantly that of maternal transfer of citizenship. Once the amended law comes into effect, children born to a Nepali mother, and whose father is unidentified and/or absent, and residing in Nepal will be able to apply for citizenship by descent through their mothers.

But, the amendment falls short of ensuring full equality

According to our partner Forum for Women, Law and Development (FWLD), though progressive and corrective of some glaring points of gender discrimination in the Nepali citizenship law, the 2022 amendment demands that mothers self-declare the absence of the father of their children in order to be able to pass on their citizenship. More worryingly, a penalty will now be levied on the applicant mother if their self-declaration about the father’s absence is determined to be false. This alienates the mothers and children who are survivors of domestic violence perpetrated by the father, and puts them at risk of unwanted and dangerous contact with the abuser. Fear of prosecution is also likely to deter mothers from applying for citizenship for their children. By placing the onus on the mother of proving the father’s absence, the law again adopts a patriarchal view of citizenship, essentially stating that the mother’s rights remain secondary to the father’s, and is applicable only when the father is absent and legally proven to be so. 

Overall, the amendments don’t fulfill the demand and obligation under international law of according Nepali mothers the unconditional right to pass their citizenship on to their children, irrespective of the status and fact of the presence of the father of their children. It also does not address the right of mothers to pass citizenship to children born overseas, or to foreign spouses. 

Upcoming case to watch: 

On January 29, 2022, mother and daughter, Charulatha and Deena filed a petition at the Supreme Court of Nepal after Deena’s application for citizenship was repeatedly rejected because her birth certificate mentions details of her maternal family only. To apply for the citizenship certificate, she needs her birth registration certificate and in spite of a special mayoral intervention in this respect, her citizenship application was rejected because it doesn’t mention details about her father, whom Charulatha had separated from after suffering severe abuse. 

The Supreme Court has given the hearing date on the case as August 16, 2022. 

Malaysia – Fighting Governmental Pushback

Malaysia’s constitution doesn’t accord married Malaysian women the right to pass on their citizenship to their overseas-born children. This has led to thousands of Malaysian children being unable to access citizenship in their mother’s country even while living there, all the while facing the risk of deportation. These children also risk being stateless if they are unable to take on their father’s nationality as well.

In December 2020, a group of mothers with overseas-born children, and the human rights group Family Frontiers, mounted a legal challenge to this discriminatory provision. On September 9, 2021, the Kuala Lumpur High Court passed a historic decision in the case and granted equal citizenship rights to Malaysian women and recognized their overseas-born children as Malaysian citizens.  The judgment harmoniously interpreted the nationality provision with the constitutional provision that prohibits discrimination on the basis of gender. The Malaysian government, however, challenged this ruling in the Court of Appeal within days of the High Court ruling. To date, only the children of the 6 plaintiff mothers have received citizenship certificates.  

On August 5, 2022, via a 2-1 split decision, the Court of Appeal overturned the High Court’s 2021 judgment and ruled in favour of the government of Malaysia, effectively denying Malaysian mothers the right to confer citizenship on their overseas-born children. The CoA Bench majority ignored the Constitution’s equality provision as well as Malaysia’s international legal obligations in holding that the discriminatory provision could not be interpreted to include mothers.

The judgment is a disappointing backslide after what had been a landmark ruling by the High Court. We call on the Malaysian government to amend all provisions of the Federal Constitution that deny women equal rights to transmit nationality, and to honour its commitment to promoting gender equality in all spheres.