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Discrimination Against Foreign Spouses

WAO refers to an article “Woman faces deportation after husband walks out on her” (The Sun, NST April 1, 2001), where a thirty-year old Indonesian faces possible detention, deportation or separation from her two children after her marriage of 8 years to a Malaysian man broke down. This is because her yearly visa to stay in the country is expiring on April 8, 2001. Her husband has purportedly left her and their children for another woman and she is left in the lurch because her visa cannot be extended without her husband’s sponsorship.

This is a common and age-old problem faced by foreign women who are married to Malaysian men. Although foreign wives are eligible for Permanent Residency (PR) status (which, incidentally, is not granted to foreign men who are married to Malaysian women), they are completely dependent upon their husbands in the application process and in the renewal of their yearly social pass.

This is because the Immigration Department procedures require the husbands to be present during the application, and to give their consent to their wives’ application for PR status.

If the husbands refuse to support their applications for PR status and their social visas expire, this structure leaves the foreign wives without recourse. The significance of this is especially pertinent when there is a crisis between the couple, abuse, separation or divorce during the application process period, or as in the case above, where the husband walks out of the relationship due to an alleged extra-marital affair.

Article 15(1) of the Federal Constitution of Malaysia provides that foreign wives apply for Malaysian citizenship after remaining in the country for two years (note: again, a corresponding eligibility is not extended to foreign husbands of Malaysian women) and choose to reside in Malaysia permanently. However, the reality remains that these women often face delays in their application process, and in some cases, the processing has taken over ten years. This was discovered through Women Aid’s Organisation’s (WAO) research in the compilation of its CEDAW Baseline Report on Marriage and Divorce. During the period of application process, the husbands have the power to exert undue control over their foreign wives due to the wives’ dependency upon them in this matter.

Aside from the delays, the requirement of the husbands’ consent and presence puts the women in a frightening position especially if they have children who are Malaysian citizens. The women are at the risk of deportation, regardless of the fact that they might have already lived in Malaysia for several years. This in turn means that they might not be able to be with their children and care for them because they do not have joint guardianship over their children. This means that a mother’s right to be with her children is completely subjected to the father’s consent and support. In some instances, this may even result in women remaining in abusive relationships. As found by MCA bureau head Michael Chong (as quoted in the news report), “many local men make use of immigration laws as a convenient way to dump their foreign spouses”.

How does this reflect a woman’s position in her family? As seen, the provisions and operations of this law have effectively curtailed her right of choice to remain within a marriage. Her right to her children has also been notably compromised through the denial of her right to remain in the country. The fact that the operations of this law gives and allows the men so much control over the women and their fate is discrimination.

Even though there is a concern by the government on foreigners who may be marrying Malaysian citizens merely for the sake of attaining a green card, the approach to this concern should be free from gender biasness. It is unfortunate enough that foreign husbands of Malaysian women are not even granted the eligibility to PR status or citizenship, the operations of current legislation should not promote an unequal standing ground between the husband and wife within the family.

This contravenes the Convention on the Elimination of All Forms of Discrimination Against Women (CEDAW) of which Malaysia has ratified to in 5 July 1995. The basic legal norm of the convention is the prohibition of all forms of discrimination against women. This fundamental equality in the right to nationality, particularly after marriage, is preserved under Article 9 of the convention that has been wholly accepted by the Malaysian government upon its ratification. By acceding to the Convention, Malaysia has committed to undertake a series of measures to end discrimination against women in all forms, and this includes incorporating the principle of equality of men and women in their legal system, abolish all discriminatory laws and adopt appropriate ones prohibiting discrimination against women.

A Malaysian society that upholds humanitarian values should take into consideration the effect that Immigration laws have on both women and children. Both the mother and father should have an equal opportunity to be with their children, and in the event of a separation, this should not be decided over a law that allows for the man to exert a deciding control over the fate of the woman. The women face deportation because of unjust Malaysian men who use the law to their advantage. The women should be able to apply for PR status irrespective of her husband’s approval by virtue of the fact that she has given birth and have stayed in Malaysia for ‘X’ number of years. The provisions of the law should facilitate women who have married Malaysian men to be able to apply for PR status or citizenship because of the above reasons should they, due to circumstances beyond their control, be left in a lurch or are even widowed. It is unjust to expect these women to just leave the country after she has invested so much in the country.

More importantly, such laws that directly discriminate against women should be re-examined and reformed to eliminate the inequality that it provides for.

Jaclyn Kee
Communications Officer

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