e-Risalah USIM - Edisi Jun 2021

MEI 2021 17 | opposition by far-right and anti- immigrant politics especially in the US. The legal-political climate made the research experience more enriching and worthwhile, allowing one to observe and draw lessons from how other political, social, and academic movements critically respond to this contemporary polemic and debate around political membership and inclusion. 4. What do you think is the greatest opportunity and the most difficult challenge in terms of addressing statelessness in Malaysia today? Concerns over statelessness have gained steam at the turn of the century. UNHCR’s global initiative better known as the #IBelong Campaign has contributed to a steady increase in the ratification of the statelessness conventions. In light of this positive trend, Malaysia has seen progress in terms of awareness and actions on the ground that engage multi-stakeholder approaches to document, register and assist undocumented people, such as the Indians of Tamil descent to apply for their birth registration and citizenship. Beyond this, much work remains to be done, including for the stateless and at- risk groups in Sabah - predominantly the Bajau Laut and other undocumented natives and migrant populations with uncertain nationality status - who have lived out their lives in the state for generations. Having said that, it is hard to design intervention strategies without being able to have reliable estimates and baseline information of the affected populations. Mapping, data gathering, and data sharing need to be systematically arranged in such a way that leads to better predictability and evidence-based policies at the domestic level, supported by interstate and interagency cooperation for mitigation and resolution of the issues. Lack of gender-neutral provisions for conferral of nationality and restrictive judicial interpretations of the constitutional legal safeguards continue to create pushback against the potential of the safeguards to benefit children in need of protection against statelessness and its negative human rights implications, including children born out of wedlock to at least a Malaysian parent. Human rights based perspectives are still ambivalent in judicial interpretations of the legal provisions vis-à-vis technical understandings on citizenship claims. Even the principle of the best interests of the child is seldom invoked as a tool of legal analysis of the related provisions on citizenship that could offer protection against statelessness. There are ample frameworks that call for the principles of shared responsibility and cooperation between states on improving the aspect of management of irregular migration, such as the Bali Process and the recently concluded Global Compact on Migration. The provision of legal identity for all is clearly embedded in such frameworks, which is key to tackling the root causes of displacement and ensuring orderly and regular migration - both forming important measures to reduce statelessness. The big task ahead is how to translate and channel all these commitments and principles into actionable plans as progress in tackling politically sensitive issues such as statelessness is always conditioned on the level of political will and buy-in on the part of the policy makers and political actors. 4. Majority of the Human Rights Convention is not being enacted into local legislation. Why is it so? Treaties ratified by the Federal Government of Malaysia are not self- executing as Malaysia adopts a strict dualist approach. The definition of ‘law’ in the Federal Constitution of Malaysia itself does not include international law. The Government thus retains its authority to determine the scope and application of the treaties. Contrary to the idea of universal nature of human rights, such power, which also entails refusal to enact certain ratified provisions is thought necessary, among others, to avoid unintended results that could undermine the Constitution, prejudice and interfere with local customs, federal-state relations and other domestic interests. This assertion of sovereignty can be viewed as being contrary to ‘good faith’ for a contracting state that has already ratified a certain convention. The domestic courts, however, are not restricted from engaging with unincorporated treaty provisions in their legal interpretations and judicial reasoning, particularly for removing ambiguities in domestic legislation, including the Constitution, and highlighting the need to act consistently with the relevant ratified treaties. Such judicial roles which have been advanced in a number of cases can certainly help mitigate against the effects of such strict dualism. 5. What do you hope to accomplish through your current work and research? Through my current research, I hope to present states within ASEAN including Malaysia, analysis of data and resources to evaluate strengths, weaknesses and gaps in their birth registration coverage and governance. The compilation and comparative evaluation of the standards and best practices will provide them with legal, policy and to some extent technical guidance for improvement in realizing universal birth registration and legal identity for all, especially children. The outcomes could further contribute to enhancing the knowledge base complementing and supporting the goals of promoting equality and opportunity for all through ASEAN Community 2025, as well as promoting and protecting human rights and sustainable development goals of 2030, through the provision of legal identity for all. I hope that my work on statelessness, together with the efforts and contributions by other stakeholders within and beyond academia, will deepen our current understanding, facilitate discussions and eventually nurture potential solutions for legal identity and protection of the rights of every child. *The above conversation is adapted from an earlier interview given for Lexis Nexis by Dr Rodziana Mohamed Razali and her testimonies to McGill Centre for Human Rights and Legal Pluralism. JUN