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NGO Statement to the
Committee for the Elimination of
All Forms of Discrimination
Against Women
on the
Initial and Second Periodic Report from the Government of Malaysia
22 May 2006

Thank you Madam Chair for giving us the opportunity to address the committee.

I am Dr. Hamidah Karim from the National Council of Women's Organisations which coordinated the process of producing The Shadow Report involving 28 NGOs, institutions and agencies. We will be highlighting 5 issues. While I will speak on the first 2 issues my colleague Ms Zaitun Kasim will speak to you about the last 3.

In our presentation, we shall highlight the issues but not the recommendations which are contained in this statement.

1. The need for substantive equality framework and domestic laws to deal with gender discrimination

Following its ratification to CEDAW, the government amended the Federal Constitution to include gender as a prohibited ground for discrimination. However the definition of discrimination against women was not made explicit and was left to the interpretation of the government and the courts. This absence of definition of discrimination has led to the grave misinterpretation of the concept of equality that has permeated into the whole system. Many policies and programmes utilised the concept of formal equality and not substantive equality as recommended by CEDAW.

Further, the constitutional amendment itself exempts discrimination already allowed under the Federal Constitution . It is also noteworthy that under Malaysian law, international conventions and norms are not automatically incorporated as part of the domestic law. Thus the standards provided in CEDAW need not necessarily be adopted by the Court.

At the same time, the Malaysian courts interpret the constitutional provisions on equality and discrimination: (a) as prohibiting discrimination by state and public authorities only and not by non-State (private) actors; and (b) as guaranteeing equality only to those falling within the same class (group) of persons.

This highlights the need for gender equality laws to protect all women in Malaysia against discrimination irrespective of whether they are by public, private, federal or state authorities and to define the meaning of discrimination.

We recommend

  • The definition of discrimination against women in line with Article 1 of the Convention must be clearly provided. This must be followed by campaigns to raise awareness about the Convention and the meaning and scope of discrimination against women aimed at the general public and especially to the parliamentarians, the policy makers, the judiciary and the legal profession.
  • The remaining discriminatory provisions within the Federal Constitution should be thoroughly reviewed and amended to ensure harmonisation with article 8(2) of the Federal Constitution.
  • The enactment of gender equality laws to define and enforce substantive equality due to the courts' upholding the duality between domestic laws and international treaties ratified by the executive and non-extension of constitutional protection against acts by non-State actors.
  • Use of a substantive equality framework in policy formulation to abolish discrimination against women.
  • There should be a systematic and thorough review of all laws in the country that continues to discriminate against women. It is recommended that the review and amendments of laws as identified in the JAG-VAW Memorandum on Gender Equality submitted on 25th May 2004 should be made a priority.

2. Temporary Special Measures and Special Measures

The Government policy to increase the participation of women in decision-making in the public sector to at least 30 per cent and various mechanisms to promote gender equality have failed to show significant results . The government itself acknowledges that due to widespread stereotyping of women , pursuing a gender blind policy is not the best way . Yet it does not practise quota or preferential rules to achieve equality in results. The government therefore needs to have temporary special measures to bring about results in real terms and to accelerate this process. Such process may start by the election commission providing incentives to encourage political parties to nominate at least 30% women candidates.

Within the environment of widespread stereotyping; the government acknowledges that a working woman is faced with the difficult situation of having to perform and cope with multiple roles as a wife, mother and worker. To overcome some of these barriers the government should allow women temporarily to opt out of the workforce and re-enter without loss of benefits or seniority.

The government's policy to allow women working in the public sector, subject to approval, to take six months breast feeding unpaid leave after their two-month maternity leave is a positive move. Unfortunately this leave is only accessible to women who are socio-economically better off and those who have better negotiating powers with their superiors.

We recommend that the government:

  • urgently and effectively implement temporary special measures in accordance with Article 4, of the Convention, and with the Committee's General Recommendations No. 25, in order to accelerate the realization of women's de facto equality with men in all areas;
  • include a provision for temporary special measures, in particular with regards to women's participation in decision-making and access to economic opportunities, within the gender equality law that has been recommended above;
  • incorporate clear targets and time-frame as well as an evaluating mechanism for the temporary measures, to monitor the effectiveness of such measures;
  • implement and adopt further measures to allow for reconciliation of family and professional responsibilities, including the provision of affordable childcare, flexible working arrangements like job sharing and the promotion of equal sharing of domestic and family tasks between women and men The accessibility and effectiveness of such measures should be monitored so that adjustments can be made whenever necessary due to changing socio-cultural environment;
  • ensure that all women can benefit equally from special measures that are formulated to protect maternity.

3. The Impact of codified Islamic laws based on narrow interpretations

There is a trend towards adopting norms, rules, laws and policies that are discriminatory towards women in the name of religion (in particular Islam). It is important to note that these changes, which are premised on narrow interpretations of religious texts, have permeated the various social spheres as well as decision-making levels in the country.

One example that aptly highlights this is the recent pronouncement by one of the Muftis that it is against Islamic law for a husband to be a homemaker. Even more worrying was the suggestion by the Deputy Prime Minister that the ruling on this issue was to be left to the National Fatwa Council as it was deemed a syariah-related matter.

These narrow interpretations manifest themselves in several ways that affect both Muslim and women of other faiths.

Particularly, the amendments to the Islamic Family Laws over the last two decades that have systematically diminished the rights of women through the creation of unfair conditions regarding polygamy, divorce, maintenance and child custody. Cases of divorce pronounced outside of court (including by text messages through mobile phones), non payment of maintenance and cross-border polygamous marriages are just a few examples of injustices against women. The penalties to protect women from these injustices are usually ineffective.

The attempt to use gender neutral language in the last amendments in the context of an unequal framework only exacerbated discrimination against women. This highlights the fact that patchwork amendments are not able to deliver justice. There is an acute need for a comprehensive and uniform set of laws based on progressive interpretations.

In addition to the family laws above, Muslims are also governed by the Syariah Criminal Offence Enactments which increasingly infringe upon the privacy of citizens under the guise of 'morality' and 'public decency'. Records of arrests and prosecution show that these laws are used disproportionately against women and the young, in particular with regards to policing their attire, sexuality and how and with whom they socialise in their leisure time.

The separation of jurisdiction and application of different laws for Muslims and people of other faiths, have also had extensive implications especially in cases where one of two non-Muslim spouses, particularly the husband, decides to convert to Islam resulting in the rights gained by non-Muslim women under the Civil laws being severely challenged.

We recommend:

  • The setting up an interagency committee inclusive of women's groups to review both the Syariah laws and the Law Reform Marriage and Divorce Act 1975 (a civil law statute) in order to:
    • Put in place a uniform and comprehensive set of Muslim family laws premised on the principles of gender equality and justice.
    • Clarify procedures and issues of jurisdiction in matters involving the conversion of a spouse to Islam so that ancillary matters of maintenance, custody and guardianship can be settled efficiently in one court.
    • Review existing procedures to ensure that the Court system is rendered friendlier and more accessible to women and children.
  • That the Syariah Criminal Offences Enactment be reviewed by a committee, which includes women's groups and human rights groups, in accordance with Islamic legal theory and practice and fundamental liberties as provided under the Federal Constitution and the Convention.
  • That the Malaysian Government's reservations to Article 16(a), (c), (f), (g), and (2) on the grounds that they are in conflict with the provisions of Islamic Syariah law and the Federal Constitution be withdrawn as it indicates the government's reluctance to extend full equality to women in family life.

4. Women particularly vulnerable to discrimination

There is an urgent need to pay special attention to marginalised groups of women who are vulnerable to discrimination, exploitation, violence and inhumane treatment.

These groups include migrant domestic workers, trafficked women, refugees, asylum seekers, stateless women and sexual minorities.

Without good data collection, addressing the needs of these women is rendered difficult if not impossible.

Furthermore, there is no clear policy in respect of women with disabilities and stateless women as well as women who are trafficked, refugees and asylum seekers.

In respect of migrant domestic workers, vulnerability to abuse is exacerbated by isolation and inability to change employers and work during investigation and the court process.

Non-recognition of sexual diversity results in sexual minorities being marginalised, isolated and vulnerable to violence.

(a) Migrant domestic workers

We recommend:

  • Guidelines for employers and standardised contracts and provision of easy access for workers to report any abuse;
  • Allowing workers to change employers and work during investigation and court proceedings, if any;
  • Removing any requirement for payment for extension of stay (presently USD26 per month) pending court redress and expediting the legal process.

(b) Trafficked women, refugees and asylum seekers

(c) Stateless women

Under the Immigration Act 1959 (Act 155) persons can be detained without judicial scrutiny. There is no screening mechanism to identify trafficked victims and asylum seekers and these women including their children may be held in detention centres

Poverty and ignorance prevent many women of Indigenous (orang asli and orang asal) as well as of ethnic Indian origin whose forefathers lived in plantations (in Peninsular Malaysia) from registering the birth of their children. Women often depend on their husbands to register the birth of their children and when this is not done, people live out their entire lives without official documentation nor recognition of their basic rights to education, health care and employment.

We recommend:

  • Research into the extent of trafficking in the country;
  • Enactment of specific and comprehensive anti-trafficking laws;
  • Establishment of more effective support mechanism;
  • Setting up of a clear transparent process to ascertain and recognise the status of stateless persons and providing interim facilities for their basic needs e.g. education and health.

(d) Women with disabilities

In spite of legislation that attempts to promote inclusive education and employment opportunities, facilities in general - ranging from barrier-free environments, to facilities and human resource allocation -discriminate against women with disabilities in various spheres.

We recommend:

  • A paradigm shift to frame issues of disability within a human rights framework rather than token welfare approaches;
  • Enforcing legislation that improves accessibility and mobility;
  • Conducting awareness raising to promote the rights of people with disabilities and actively ensuring that disability issues feature in all initiatives of gender mainstreaming.

(e) Sexual minorities

Non-recognition of sexual diversity results not only in social isolation, marginalisation of and violence against sexual minorities, but also renders every day dealings with bureaucracies an uphill, if not near impossible, task; ranging from difficulties with the immigration and road transport departments, insurance companies, banking procedures, having a family of their choice, funeral procedures, to name a few

Transgendered persons, in particular transwomen, are often subjected to frequent and humiliating raids by both the police and the religious departments for 'offences' ranging from wearing women's clothes, to charges of soliciting, drug-related offences, loitering and for taking part in beauty contests.

We recommend:

  • Collection of data in order to assess the needs of sexual minorities

5. Violence Against Women

While criminal laws exist to address violence against women, the effectiveness of these laws is not being monitored by the government. There is also no systematic data collection. Police statistics merely give the total number of reported cases.

There is a need to define rape and aggravated rape as well as address the specificity of domestic violence apart from handling all survivors with sensitivity.

We recommend:

  • Reform of the criminal laws pertaining to rape and domestic violence;
  • Enactment of legislation on sexual harassment;
  • Policy reform related to VAW to accelerate investigation and access counselling and protection;
  • The collection of statistics on age groups, location of incidents, conviction rates etc, with a proper analysis of data, to monitor trends be put in place;
  • Continued and sustained training for public officials, especially law enforcement health care providers as well as the judiciary so that they are fully sensitised to all forms of VAW and can adequately respond to it.

 

This page was last updated on July 16, 2006

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