Statelessness of Non-Marital Children in Malaysia:

Contemporary Perspectives on Shariah and Law

Rodziana Mohamed Razali

Aishah Mohd Nor

 

Abstract: This note examines Malaysia's gender-discriminatory legal framework concerning citizenship and its consequential impact on non-marital children, especially those of Muslim descent in Malaysia. Using a desk review analysis of academic articles, news reports and judicial decisions, it sheds light on the ongoing struggles of these non-marital children in accessing citizenship and consequently, their basic rights and protections. Briefly outlining the concept of citizenship and factors contributing to statelessness among this demographic, the article subsequently scrutinises the citizenship conundrum in light of a recent proposed amendment aimed at removing a constitutional safeguard meant to prevent statelessness. It further delves into the Shariah perspective of maqasid al-shariah (the higher objectives of Islamic laws) concerning access to a legal identity, including name, birth registration and nationality. It suggests that several interpretations and approaches by Court decisions, including by the Shariah Courts in Malaysia, play a crucial role in safeguarding the rights of these children against the adverse consequences of statelessness resulting from the absence of their legal identity. Moving forward, the article advocates for progressive strategies that prioritise the best interests of the child as the guiding principle, as implicitly adopted in the cases discussed, to enable the protection and fulfilment of the fundamental rights of these vulnerable children.