Guardianship Act

Jashida* is a single mother with 2 children, Elisa* and Junaida*, aged 7 and 12. She teaches English in a primary school, and gives tuition part time to financially sustain the family. Her husband abandoned the family when Elisa was 3 years old. Although it was a painful experience, Jashida learnt to cope on her own with support and help from Maya*, her sister who lived in Australia. They are both very close and often write long letters to each other.

Considering that the school holidays were near, Jashida planned to bring Elisa and Junaida to Australia to pay Maya a visit, as well as for a long deserved holiday. However, the children have never applied for a passport, and she wasn't sure if the father's authorisation was necessary for the application. One of her colleagues was certain that the father's consent was required, while another told her that it was no longer necessary.

Jashida was troubled, for if it was compulsory, it would mean that she couldn't take her children overseas for a holiday until they can apply for passports on their own. This is because her estranged husband has not been in contact with her and their children for four years, and she has no idea how to trace him. Is it possible for her to submit an application for her children's passports without their father's authorisation?

Prior to the amendment of the Guardianship Act 1961, only the father and unwed mothers were recognised as guardians of the children's persons and property. This was problematic for single mothers who were married, but were divorced or separated from their husbands. The mothers must track down the husbands and try to get their cooperation in facilitating official transactions such as applying for international passports, which may be very stressful if the father is not easily traceable. This is even more so for women who have left a domestic violence situation to live independently and free from violence with their children. At instances like these, seeking out the abusive husband may endanger their lives. Furthermore, the husbands may use this law to obtain access to or to continue to exert power over women whom they have formerly abused. In WAO's experience, some of the mothers even had to resort to advertising for their missing estranged husbands, often failing to find them. All these were seen to cause unnecessary stress on the mother's lives when they are unable to arrange their children's affairs on their own. Furthermore, it was also discriminatory to the status of women because they are not held as equals within the family.

Due to all these factors, the women's movement actively lobbied for amendments of the Act to provide the status of legal guardian to the mother. This resulted in the government amending the Act in October 1999 that affords equal guardianship rights for non-Muslim mothers and fathers. This is under section 5 of the Guardianship of Infants (Amendments) Act 1999, which states that mothers have the same powers as fathers in arranging the affairs of the child. During the same time, the Chief Ministers of Johor, Selangor, Negri Sembilan and Pahang announced that their states would adopt the amendment into their respective Syariah legislation. At the federal level, to address the issue of equal guardianship rights to Muslim mothers, a cabinet directive was issued in September 2000 to allow mothers to sign all documents related to their children. This ensures that all Malaysian women irrespective of race and religion are conferred the right of equal guardianship.

This means that Jashida can apply for her Elisa and Junaida's passport without having to search for her husband for his authorisation. This should also apply to situations where if Jashida wishes to transfer Elisha and Junaida to a different school or when applying for their identity cards.

To apply for her children's international passports, all Jashida has to do is:

• Bring her children's birthcertificate to show that they are Malaysian citizens. If Junaida has an identity card, bring that too. Jashida must also bring her own identity card.
• Fill in the IM.42 form. Although the form still reads "father/guardian", the mother's authorisation should suffice. The Immigration Officer should not need to ask you any questions. However, a proviso has been stamped on the form declaring that the immigration has the right to request for supporting documents that they think are relevant. Therefore, if she has the Court's Order for custody of the children, she may bring them. If the Immigration officer at the desk insists that the father's authorisation is necessary, she can request to see her/his superiors. She can also request to speak to the personal relations officer of the Immigration Department and explain to them her predicament.
• Bring 2 photographs of the applicants, namely Elisa and Junaida, measuring 3.5 cm x 5.0 cm.
• Bring the money for the fees. If she wants a 32 pages passport, the fee is RM 300. The fee for a 64 pages passport is RM 600.
• Bring the children's old passports if they have any.
• If she is still unsure of has any further queries, she can contact a women's organisation for further information, or the Immigration Department.

*Names changed to protect WAO's client's confidentiality.

Prepared by Jaclyn Kee
Women's Aid Organisation - 20 Years of Service to Women and Children

Fortnightly Column by WAO on Sunday Mail (Reprinted with permission from Sunday Mail)

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