Citizenship vs. alienage and the intersectionality of law, race and gender

Ph.D. candidate Faye Yik-Wei Chan shares research from her thesis on the legal status of Chinese Indonesian Women, 1930-2014.

During the 1980s and 1990s, Susi Susanti was a young badminton prodigy who successfully represented Indonesia at international tournaments. She won a gold medal at the 1992 Olympic Games in Barcelona and a bronze at the 1996 Games in Atlanta. She was hailed by the public and government officialdom alike in her homeland as a true Indonesian patriot and the pride of the Indonesian nation-state.

However, in 1985 when Susi first applied for an Indonesian passport, she was told to produce proof of her parents’ Indonesian citizenship, their respective SBKRI (Surat Bukti Kewarganegaraan Republik Indonesia: Proof of Indonesian Citizenship Document), and more specifically, the SBKRI of her father. He had an indigenous grandmother, and his generation was the fourth to be born in Indonesia, but he was still deemed to be of Chinese descent by the authorities. The tiresome rigmarole would be repeated every time Susi renewed her passport.

As an example of legislated discrimination, the SBKRI was particularly exclusive in that it had been created with the ethnic Chinese in mind; the wording of the text specified its target group as ‘aliens’ or persons of ‘alien’ descent. Every Indonesia-born person of Chinese descent was required to obtain it as irrefutable proof of their existence as citizens of the Indonesian republic.

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Chinese cemetery, Maluku Islands, Indonesia, 1833, Hippolyte Vanderburch. Image via National Library of Australia.

The official rationale given in 1980, at the time of its inception, was that the SBKRI served as a countermeasure against the claim of jus sanguinis by the People’s Republic of China over all diaspora Chinese. (The PRC’s claim was itself motivated in part by a similar claim from the Nationalist government in Taiwan.) The substantial ‘processing fees’ that were imposed on SBKRI applicants meant that the precious document was beyond the means of low-income and impoverished ethnic Chinese, thus effectively rendering them legally ‘stateless’, despite being born in Indonesia like their parents, grandparents and even great-grandparents before them.

Since many of the urban poor were born at home, their births often went unregistered. (The births of the older generations were unlikely to have been registered either.) Furthermore, they might not possess residents’ identity cards, which depended on their having birth certificates in the first place, as well as the money to pay for the documents. Getting the SBKRI necessitated the applicants producing both their birth certificates and residents’ identity cards. Inevitably, these Chinese Indonesians were treated as being ‘stateless’ by the local authorities.

Although the SBKRI was no longer mandatory after 1996, the legal provisions that rendered it null and void (Presidential Decision No. 56 of 1996 and Presidential Instruction No. 4 of 1999) were not adhered to uniformly throughout the country. Depending on where they lived, ethnic Chinese applying for Indonesian passports were still asked to produce their SBKRI, in addition to their birth certificates and residents’ identity cards.

My research is driven by the premise that historically, ethnic minority women of Chinese descent in Indonesia have been discriminated against due to both their gender and ethnicity. Beginning with legislation on regulating the different population groups in the Dutch East Indies (colonial Indonesia), and continuing with the swath of legal instruments (including government policies) enacted by subsequent nationalist governments in relation to Indonesian citizenship, my thesis examines the legal status of Chinese Indonesian women throughout the twentieth century up till and including the first decade and a half of the twenty-first century.

For ethnic minority women, the challenges brought about by the gendering of citizenship laws are made all the more difficult by the legal status of their ethnic group. Thus, for Chinese Indonesian women, their being of Chinese descent has been reimagined and exploited by the state apparatus (colonial, then post-independence national) as a determinant of their eligibility for citizenship.

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The May 1998 Riots of Indonesia involved incidents of mass violence throughout the country; the main targets of violence and looting were ethnic Chinese. Image courtesy of the Office of the Vice President, The Republic of Indonesia via Wikimedia Commons.

Each chapter of my thesis is framed as an exercise in intersectionality, which is the foundation of feminist jurisprudence: the intersection of law and race, then both modalities intersecting with gender, and all three intersecting with class. Situated at the nexus of this intersectionality matrix are ethnic minority women whose legal status was circumscribed by their ethnicity, gender and class. As discussed above, it is my contention that one’s legal status was used by State actors to justify alienage or control access to citizenship.

Feminist jurisprudence proceeds from the assumptions that male-centric approaches to law-making relegate women to a subordinate legal status. Nowhere is this more obvious than in the formulation of citizenship laws, which, according to Helen Irving, make the citizenship of married women conditional upon the citizenship of their husbands. As Irving articulates, this gender-biased stipulation occurred in most countries until the late twentieth century, irrespective of differing legal systems, traditions and concepts of citizenship. The same stipulation provided grounds for stripping a wife’s own nationality after she married a foreign man, as well as grounds for the naturalisation of alien wives. Hence, despite a State’s declaration of support for gender equality and thus equal citizenship for men and women, there is a chasm between such formal commitments and what is written in the law, as well as in the lived experiences of women.

Irving’s core argument is that conditional marital citizenship serves to undermine any constitutional guarantee of equal citizenship for women as their birthright. My research takes this contention further by contributing a parallel discourse on the citizenship of children as being conditional on that of their fathers’. The focus on Susi’s paternal parent by government apparatchiks was the real-life manifestation of the gendered language of the Indonesian citizenship law. Indeed, the provisions of this law stipulated that the applicant must have a relationship with their father, and if that relationship was not evident (in cases where the father was unknown or deceased), in its place a relationship with their maternal grandfather (the father of the applicant’s mother) was required, which meant producing documentation that clearly listed the name of the applicant’s mother’s father, of whom there must also be documentation that proved his birthplace was in Indonesia. First enacted in 1958, these provisions exemplified Richard Collier’s contention that ‘the masculinity or ‘masculinism’ of law’s institutions and practices’ were linked ‘at different historical moments, to the reproduction of gendered and discriminatory beliefs and practices’.

The Indonesian citizenship law was amended in 2006, with the intention of rewriting the notions of ‘citizen’ and citizenship’. Of significance is that it rendered untenable, the division of Indonesia-born citizens into ‘authentic’ and ‘foreign descent’ (read: Chinese) groupings. Indigenous or ‘authentic’ Indonesians were themselves of different ethnicities, but were nevertheless ‘authentic’ natives in the anthropological sense, to the lands within Indonesia’s borders. Nevertheless, the status quo of Indonesia-born women remained in the amended law.

The Elucidation Brief of the 2006 citizenship law clearly stipulated that in the case of a married couple whereby each party held different nationalities, the wife’s nationality would be determined by the husband’s. Dual nationality was not an option under Indonesian law. By the same token, if a female Indonesian citizen married a foreigner whose own country’s laws did not allow for dual citizenship, then his wife must renounce her Indonesian nationality and apply for naturalization because she was subject to the laws of her husband’s country. On the other hand, there is no stipulation in the 2006 Indonesian Citizenship Law (nor in its 1958 predecessor) that requires the Indonesian citizen husband to comply with the nationality regulations of his foreign wife’s country. In short, his legal status was not affected by that of his wife’s.

The Brief further stipulated that the legal status of a minor, or an unmarried person who had already attained their majority, was determined by the legal status of their father. In cases where the minor or that unmarried party did not have a legal relationship with the father (he being deceased, or did not acknowledge paternity), then in these exceptions the legal status of the mother was used.

Defining a woman’s right to her own legal status as a citizen, by applying the legal status of her husband or father as the determining factor, is symptomatic of Collier’s ‘masculinity or ‘masculinism’ of law’s institutions and practices’ and ‘the gendered (masculine) nature of law’s governance, institutions, and jurisprudence’. In keeping with the traditional ‘masculine culture’ of colonial and modern Indonesia’s legal instruments, mothers appeared to be the last resort, only in instances when neither husband nor father existed.

Faye Yik-Wei Chan is a Ph.D. Candidate and RA with the School of Historical and Philosophical Studies (Arts) and the Centre for Indonesian Law, Islam and Society (Melbourne Law School), University of Melbourne. She is also a tutor on the Indigenous Tutorial Assistance Scheme (ITAS) at the Murrup Barak Institute (University of Melbourne).

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