Prepared by Nur Sakinah Alzian
2 January 2024
On December 1st, Prime Minister Datuk Seri Anwar Ibrahim became the first person in the country to be registered in the National Digital Identity Initiative (IDN)(1). Initially introduced in 2021 as a component of the Malaysian Digital Economy Blueprint, this initiative was expedited in the 2024 Budget in October. With an allocation of RM80 million to fast-track its implementation, the digital ID is set to be available to the public July next year(2).
The digital ID initiative was presented to the public as a pragmatic solution for excessive bureaucracy and as a pivotal key for Malaysia’s digital transformation. According to information on the MyGovernment portal, the digital identity initiative aims to streamline and expedite various processes within the public and private sector(3). Its anticipated benefits include the reduction of costs and time associated with physical transactions, the revitalization of the digital economy, decreased service delivery expenses in the public sector, and the facilitation of new digital services by fintech companies, among other advantages. This narrative of digital ID as an economic panacea is persistent across various global economies today.
Interestingly however, the concept of digital ID was originally developed from a humanitarian perspective to assist refugees and stateless people in validating their identity(4). Statelessness in Malaysia is a significant issue that requires attention. Thousands of individuals who have been born and lived their entire lives in the country face systematic marginalization due to the absence of a legal identity. The expedited introduction of a national digital identity in this context raises questions about the Madani government’s priorities, especially considering the recent proposed amendment of the constitution that brought controversy(5).
Statelessness in Malaysia
In order for an individual to have rights, they must first have the right to have rights(6), which is to be a citizen of a nation state. Accordingly, stateless people do not have the rights to basic services such as education and healthcare due to the absence of a legal national identity. The Human Rights Commission of Malaysia (SUHAKAM) distinguished statelessness into two; stateless in a non-migratory context and statelessness with a migratory context(7). The former will be the focus of this discussion. SUHAKAM defines in situ statelessness as the condition of individuals lacking recognized nationality in their own country due to administrative, financial, legal, or discriminatory barriers(8). This status affects seven distinct populations, including individuals with longstanding residence since pre-independence and their descendants, abandoned children born in Malaysia, adopted children in Malaysia, offspring of 'mixed' marriages or cases where children were born out of wedlock, children born outside of Malaysia to Malaysian mothers and non-Malaysian fathers, indigenous persons, and undocumented individuals.
Currently, the government does not collect nor record any data on stateless individuals in Malaysia(9). However the non-governmental organization (NGO) known as Development of Human Resources for Rural Areas (DHRRA) has compiled the count of stateless individuals in Peninsular Malaysia from 2016 to 2023(10). Of the 16,392 stateless cases registered with DHRRA, 7,000 individuals have now been recognized as Malaysians, leaving 9,392 still in a state of statelessness. However, the actual number of stateless individuals in Malaysia could be significantly higher, considering DHRRA's limited resources for data collection as an NGO and the sample population excluding Sabah, Sarawak, Kelantan, Terengganu and the Orang Asli communities.
The Lived Experience of Statelessness
Being stateless in Malaysia has profound and multifaceted effects. In a news report with MalaysiaNow, 16 years old Edward Tan’s story embodies the harsh reality of statelessness in Malaysia(11). Edward was born stateless due to his father's unregistered marriage to an Indonesian woman, who severed ties just two weeks after his birth. Despite attempts to rectify his stateless status through legal channels and appeals to the home ministry, Edward's quest for citizenship has been met with rejection. Even though he can attend school, Edward's future is shadowed by fears of being barred from crucial examinations due to his lack of citizenship.
Another compelling example is the case of four siblings born to a Malaysian father and an Indonesian mother(12). The absence of citizenship leaves these siblings devoid of fundamental rights. This denial significantly impedes their access to public education, healthcare facilities, and employment opportunities. They are restricted from doing everyday activities such as opening a bank account, obtaining a driving license, or securing fair employment. SUHAKAM has compiled a comprehensive list of hardships that stateless individuals face in Malaysia, encompassing issues such as bullying, restricted access to domestic travel, low-quality education, systemic exclusion from extracurricular activities, inability to marry, and mental health issues(13).
Controversial Amendment of Citizenship Laws
The recent controversial amendment of the constitution in Malaysia has ignited widespread concern and condemnation, particularly for its potential to exacerbate statelessness issues(14). Section 1(e), a constitutional safety net established in 1963 to prevent statelessness, is now under threat of removal(15). The proposed changes aim to shift the classification of citizenship from an "operation of the law" to "by registration," making it a discretionary, non-automatic process. This move is alarming, as it not only eliminates an essential judicial avenue for stateless communities to escape their predicament but also grants the Home Minister increased discretionary power over citizenship matters.
Critics argue that such changes will not only compromise basic human rights but also lead to the creation of a significant new class of stateless citizens, causing untold suffering and social and economic damage(16). Rights groups, including Lawyers for Liberty, have vehemently opposed these amendments, emphasizing the importance of a just, predictable, and transparent citizenship granting system to address the challenges faced by stateless communities(17).
How Digital ID Exacerbate Statelessness
Thousands of individuals face uncertainty despite being born and raised in the country, and the controversial amendment is expected to exacerbate their situation. The introduction of a digital ID further adds to the challenges they encounter, potentially rendering them stateless in the digital realm as well.
Arraiza explained that while digital legal identification systems can be positive tools for development, they pose high risks to human rights protection, including the right to nationality(18). Not everyone is included in the digital leap as the systems are primarily designed for those who already possess documentation and a nationality. Undocumented persons and those without recognized nationality remain excluded from benefiting from the digital transformation. Examples from Uganda(19) and Pakistan(20) demonstrates challenges related to mass exclusion and inadequate enrolment processes in digital ID schemes. Vulnerable groups, including stateless individuals, face disproportionate challenges as access to essential services, like healthcare, is often conditional on enrollment.
What Can be Done?
The government should take two essential steps. Firstly, in the proposed amendment of citizenship laws, active engagement with all relevant stakeholders is crucial. It is imperative to heed the demands and voices of rights groups, NGOs, and the stateless community to ensure the legitimacy of significant changes. While the move allowing Malaysian mothers married to non-Malaysians to confer automatic citizenship to their children born abroad is commendable, the proposed changes should also be scrutinized.
Secondly, the establishment of the national digital identity is a positive step in Malaysia's digitalization journey, but inclusivity should be prioritized. Stakeholders like MCMC should apply the UNDP Modal Governance Framework for Digital Legal Identity System in setting up the IDN(21). This framework serves as a resource for constructing an inclusive digital ID system, emphasizing equality and non-discrimination. Protecting individuals against discrimination based on various grounds, including sex, ethnicity, religion, and disability, is a key pillar. The framework also emphasizes the rights of non-citizens, ensuring those without proof of legal identity have means of verification. In the context of stateless persons, this framework evaluates the role of the digital legal identity system in preventing and reducing statelessness.
The predicament of stateless individuals has persistently afflicted Malaysia since its independence, yet successive governments have regarded it as a non-issue. It is crucial to recognize the systemic barriers that hinder the application for citizenship, involving time-consuming and financially burdensome processes for many individuals. In contrast to the well-defined standard operating procedures (SOP) and significant government promotion for the new digital identity, there is a notable absence of clear SOP for stateless individuals. True development cannot be achieved if economic progress leaves a segment of the population behind. It is imperative for the government to reassess its priorities and address the longstanding issue of statelessness with the attention and urgency it deserves.
References
1.The Star Online, “PM Anwar First Person to Have Digital ID in Malaysia,” The Star, December 2023.
2.New Straits Times, “National Digital ID, a New Facility for Online Transactions,” NST Online (New Straits Times, December 2023) ; Masha Borak, “Malaysian Digital ID Available to Public from July 2024,” Biometric Update | Biometrics News, Companies and Explainers (BiometricUpdate.com, December 8, 2023).
3. MyGovernment, “MyGOV - the Government of Malaysia’s Official Portal,” Malaysia.gov.my, 2023,.
4.Nicole Lindsey, “The Case for and against Digital ID,” CPO Magazine (CPO Magazine, February 8, 2019), .
5. Malay Mail, “Proposed Amendments on Citizenship Laws in Malaysia: One Step Forward, Several Steps Back — Shad Saleem Faruqi,” Malay Mail (Malay Mail, June 28, 2023), .
6.Hannah Arendt, The Origins of Totalitarianism (1951; repr., United Kingdom: Penguin Classics, 1951).
7. Human Rights Commission of Malaysia, “Human Rights and Statelessness in Peninsular Malaysia” (Kuala Lumpur: Human Rights Commission of Malaysia (The Commision), 2023).
8. Human Rights Commission of Malaysia, (Statelessness in Peninsular Malaysia, 2023).
9. Ida Lim, “Why Malaysia Has Zero Data on Stateless Persons: Decoding the Official View through Parliament’s Lens,” Malay Mail (Malay Mail, July 10, 2023), .
10. Ida Lim, “Counting Malaysia’s ‘Invisible’ People: How Many Born Here Cannot Be Citizens despite Their Local Roots,” Malay Mail (Malay Mail, July 9, 2023), .
11. Azzman Abdul Jamal, “Stateless Youth Dreams of Making Malaysia a Better Place,” MalaysiaNow (MalaysiaNow, June 25, 2023), https://www.malaysianow.com/news/2023/06/25/stateless-youth-dreams-of-making-malaysia-a-better-place.
12. MalaysiaNow, “Lawyers Urge Anwar’s Govt to Intervene in Plight of 4 Siblings Denied Citizenship,” MalaysiaNow (MalaysiaNow, October 17, 2023), .
13. Human Rights Commission of Malaysia, “Human Rights and Statelessness in Peninsular Malaysia” (Kuala Lumpur: Human Rights Commission of Malaysia (The Commision), 2023).
14. MalaysiaNow, “Putrajaya ‘Stooping Lower than Past BN Govt’ in Plan to Amend Citizenship Laws, Says Lawyers Group,” MalaysiaNow (MalaysiaNow, June 24, 2023), .
15. Joshua Low, “The Constitutional Amendment Creep: Perpetuating Statelessness in Malaysia,” New Naratif (New Naratif, August 30, 2023), .
16. Malay Mail, “Proposed Amendments on Citizenship Laws in Malaysia: One Step Forward, Several Steps Back — Shad Saleem Faruqi,” Malay Mail (Malay Mail, June 28, 2023), .
17. MalaysiaNow, “Putrajaya ‘Stooping Lower than Past BN Govt’ in Plan to Amend Citizenship Laws, Says Lawyers Group,” MalaysiaNow (MalaysiaNow, June 24, 2023), .
18. José María Arraiza, “Will Digital ID Help Stateless People? The Threat of Digital Administrative Violence,” European Network on Statelessness, November 30, 2023, https://www.statelessness.eu/updates/blog/will-digital-id-help-stateless-people-threat-digital-administrative-violence.
19. Katelyn Cioffi, “Human Rights Gateway or Gatekeeper: Digital IDs on Trial in Uganda,” OpenGlobalRights, 2023, .
20. Waqar Mustafa, “CORRECTED-FEATURE-Pakistan’s Digital ID Card Locks out Millions,” Reuters, July 26, 2022, .
21. UNDP, “Digital Legal ID Governance,” Governance4id.org, 2023, .