Measuring Up To CEDAW :

16 How Far Short Are Malaysian Laws and Policies ? (2003) XXXII No 3

MEASURING UP TO CEDAW :
HOW FAR SHORT ARE
MALAYSIAN LAWS AND POLICIES ?1

HONEY TAN LAY EAN*

Introduction

I nternational law affects Malaysians through the Federal Constitution, the

Civil Law Act 1956, Malaysia becoming a member of international
organisations, the ratification of treaties and conventions and the later
incorporation thereof through legislation into domestic law, Acts of Parliament,
and Judicial Decisions.

In 1995, Malaysia ratified the United Nations’ Convention On The

Elimination Of All Forms Of Discrimination Against Women ‘CEDAW’.
However, reservations were made to Articles 5(a), 7(b), 9(2), 16(1)(a), (c), (f),
(g) and 16(2). A declaration was made on Article 11. CEDAW sets out a
definition of discrimination against women, outlines the obligations of the State
and the measures to be taken by the State to eliminate discrimination. To date,
the Malaysian Government has not passed an Act through Parliament to make
CEDAW wholly applicable to Malaysians2. Instead, CEDAW is given effect
in a piecemeal fashion, by incorporating its principles in some of the domestic
legislation, and Article 8(2) of the Federal Constitution ‘the Constitution.’

* Advocate & Solicitor, Malaysia

1
First presented by the author on behalf of the Women’s Centre For Change, Penang (WCC) at
the Round Table Discussion – ‘Rights and Obligations Under CEDAW’ on 17 March 2003
organised by the Malaysian Human Rights Commission (SUHAKAM).
2
The doctrine of incorporation (which states that international law automatically forms part of
the domestic law) is not provided for in the Federal Constitution. The doctrine of transformation
provides that international law only forms part of domestic law if enacted by subsequent
domestic legislation or incorporated by judicial decisions- A Dictionary of Law, 3rd Edition,
Oxford University Press. ‘Treaties to which Malaysia is a party may either require subsequent
legislation, in which case they become the law of the land as soon as the necessary laws are
enacted or, they may not, in which case they remain within a category of Malaysia’s international
law, binding only herself vis-à-vis the other parties to the treaties, but having no effect as such
on Malaysian subjects.’ Tunku Sofian Jewa, Public International Law – A Malaysian Perspective,
Pacifica Publications 1996, p.35

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(2003) XXXII No 3 INSAF 17

The scope of this paper is to provide an overview of the non-Syariah

laws that discriminate against women. By failing to address these discriminatory
laws and procedures, there is a failure to comply with the provisions of CEDAW.
In Section 4, there is a brief outline of the policies on women with which the
Government aims to bring about equality for women.

Oftentimes, whilst the laws may be adequate, the implementation thereof

pose problems due to the cultural, religious and social practices of the Malaysian
society. This is compounded by the lack of gender awareness and sensitivity of
the agencies involved in the implementation of laws and policies.

1. The Federal Constitution

1.1 The Constitution was amended in 2001, heralding in formal equality for
women in Malaysia. Article 8(2) of the Constitution now reads :

‘Except as expressly authorised by this Constitution, there shall be

no discrimination against citizens on the ground only of religion,
race, descent, place of birth or gender in any law or in the
appointment to any office or employment under a public authority
or in the administration of any law relating to the acquisition,
holding or disposition of property or the establishing or carrying
on of any trade, business, profession, vocation or employment.’

However, other Articles of the Constitution did not appear to have received
similar attention from the Legislators. There still exists a few provisions that
run counter to the spirit of Article 8(2).

1.2 Therefore, it will be noted that Article 12(1) of the Constitution pertaining
to the rights of education was not amended to include the word ‘gender’.
Whilst there may not be discrimination in getting access to primary and
secondary education, there still exist cultural practices that favour the boy
child in being given priority to be educated over the girl child. Certain educational
courses are still deemed ‘for the boys’ e.g. engineering whilst teaching courses
are ‘for the girls’.

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18 How Far Short Are Malaysian Laws and Policies ? (2003) XXXII No 3

1.3 Another United Nations Convention that Malaysia ratified is the

Convention On The Nationality Of Married Women in 1959. However, there
are still gender discriminatory provisions in Articles 15, 26, 24, the Second
Schedule of the Constitution and in the related legislation, the Immigration Act
1959/63 and the Regulations made thereunder.

Citizenship may be conferred on foreign wives of Malaysian men if an

application is made. However, there is no reciprocal provision for foreign
husbands of Malaysian women.

A Malaysian woman married to a foreign man may only confer

citizenship rights to her child if the child is born in Malaysia. If a Malaysian
man is married to a foreign woman, the child is granted citizenship whether the
child is born in Malaysia or abroad.

2. Civil Laws
2.1 Women In Employment

2.1.1 One of the biggest problems faced by women in employment is sexual

harassment.

Currently, there only exists a Code Of Practice On The Prevention and

Eradication Of Sexual Harassment In The Workplace ‘the Code’. The Code
was launched in 1995 by the Ministry Of Human Resources. As the adoption
and implementation of the Code is entirely voluntary, many employers have
failed to adopt it.3 Some of those employers who have adopted it do not appear
to have implemented it well or wholly.4 The launch of the Code brought the
issue of sexual harassment to the forefront, but there are no provisions in the
Code for a grievance procedure. Sanctions against the harasser are not set

3
As at March 2001, only about 1% of employers nationwide have implemented the Code- News
Straits Times, 21 March 2001
4
Cecilia Ng and Zanariah Mohd Nor (2001), Sexual Harassment and the Code of Practice in
Malaysia (A Study of Pioneer Companies Implementing the Code), All Women’s Action Society
and Women’s Development Collective.

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out, and the employer cannot be held responsible for failing to provide a working
environment safe from sexual harassment.

As no legislation exists to deal with sexual harassment, victims of sexual

harassment have to resort to the Penal Code5, sue in tort for assault and battery
or claim for unfair dismissal in the event they are dismissed. The Joint Action
Group Against Violence Against Women ‘JAG’ has proposed a Sexual
Harassment Bill ‘the Bill’ to comprehensively deal with the issue of sexual
harassment.6

2.1.2 The Employment Act 1955 ‘ the EA’ contains two provisions that are
obviously discriminatory against women: s. 34 of the EA prohibits night work
i.e. between the hours of 10 p.m. and 5 a.m. for women in any agricultural or
industrial undertaking, unless an exemption from the Director General is obtained;
and s. 35 of the EA prohibits underground work for women.

The provision in the EA for 60 days maternity leave also falls short of
the 90 days leave requirement of the International Labour Organisation ‘ILO’.
Other shortcomings relative to ILO requirements include issues of nursing
allowance and care, facilities for nursing mothers, and provisions for crèches
at workplaces. The Government has however, provided tax relief incentives to
encourage the provision of childcare facilities at the workplaces, but such
provisions are not mandatory. The EA also does not state that employers must
pay men and women equally for the same amount of work done, though Malaysia
has ratified the ILO Convention No. 100 on the Equality of Wages between
men and women in 1997.

2.1.3 Domestic servants and foreign domestic servants, who are mostly women,
are not defined as employees and therefore do not benefit from the Employees
Provident Fund Act 1991, and the Employees’ Social Security Act 1969.

5
A most unsatisfactory manner of dealing with the problem as it is difficult to prove beyond a
reasonable doubt. Sexual harassment is also often repetitive, which could make the charges
lengthy as each act of harassment constitutes a separate charge. There is also no room to provide
preventive measures, and employers cannot be held liable.
6
Visit www.wccpenang.org to view a copy of the Bill.

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2.1.4 Under s.10(1) of the Workmen’s Compensation Act 1952, lump sum
compensation payable to women and minors must be deposited with the
Commissioner. This provision discriminates against women, as there is no similar
provision for men, and suggests that therefore than women are less capable
than men in dealing with monetary issues.

2.1.5 Whilst female naval personnel may not serve on board ships currently,
the Navy is planning that they may do so by 2008.7

2.2 Women and Family

Paras. 2.2.1 and 2.2.2 pertain to non-Muslim women only.

2.2.1 When marriages break down, the issue of maintenance becomes a big
bone of contention. Generally, maintenance may be claimed only by wives and
children.8 Husbands may only claim maintenance if they are incapacitated
from earning a livelihood and the courts are satisfied that having regard to the
wives’ means, that it is reasonable to do so.9

The limitation period for the claiming of arrears of maintenance and the
enforcement of maintenance orders is shorter than for other matters. Due to
the lack of clarity of s.86(3), the Law Reform (Marriage and Divorce) Act
1976, it is arguable that enforcement of arrears of maintenance orders may
only be for three years. The case of Gangagharan v Sathiabhama10 would
appear to be authority for the proposition that the courts may only be able to
make orders for payment of maintenance which have been in arrears for no
more than one year. The reason cited is that the payment is a fund for
maintenance and not property.

As maintenance is mostly claimed by women and children, these one

7
The Star, 8 March 2003.
8
See the Married Women and Children Maintenance Act 1950.
9
s. 77, Law Reform (Marriage and Divorce) Act 1991.
10
[1976] 1 MLJ 77

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and three year periods have the effect of discriminating against women. This
is clear when s. 6 of the Limitation Act 1953 provides that actions to enforce
an award are only barred if brought after the expiration of six years, and actions
founded in tort and contract have a similar limitation period of six years. The
limitation period to recover land is twelve years.11

2.2.2 When only one party in a non-Muslim marriage converts to Islam

(especially if the converting party is the husband) the children may be converted
to become Muslims as under the Syariah Laws, the father is the guardian of
the children. The view of the (non-Muslim) wife/mother is oftentimes not
consulted. As fathers and mothers have equal parental rights under the
Guardianship of Infants Act 1951, such conversions of the children constitute a
violation of the mother’s rights.

2.2.3 The adversarial litigation process also discriminates against women.

Women tend to be in less well off economically, and would be harder pressed
to appoint a good family law practitioner to claim for that to which she and her
children are legally entitled. Furthermore, heavy reliance on documentary
evidence also weighs against women as the average woman may not be as
aware as the average man of the value of keeping receipts, records and ensuring
that her name appears in the titles to immovable properties purchased by her
and her husband jointly.

The way forward is to set up a Family Court system whereby alternate

dispute resolution methods are emphasised, counselling is provided to all parties,
including to the children of the marriage (especially during and after the divorce
proceedings) and an efficient enforcement of maintenance mechanism is put
in place.

2.3 Domestic violence

2.3.1 Violence against women is a form of discrimination against women. The

Domestic Violence Act 1994 ‘the DVA’ attempts to deal comprehensively
11
s. 9 of the Limitation Act 1953

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with the problems of domestic violence. It applies to Muslims and non-Muslims

alike.

2.3.2 Domestic violence is defined under s. 2 of the DVA12, and is a crime.

However, in order for charges to be brought against the abuser, the crime must
be one that is found in the Penal Code only. If charges are to be filed against
the abusers, each incident of domestic violence will form a separate charge.
In view of the fact that domestic violence is often repetitive, this process is
cumbersome. The definition of domestic violence does not include stalking,
mental, emotional or psychological abuse. These also do not constitute crimes
under the Penal Code and many women are left vulnerable as these are not
uncommon forms of abuse.

As some of the crimes of domestic violence constitute non-seizable

offences, orders to investigate must be obtained from the Deputy Public
Prosecutor. When an Interim Protection Order ‘IPO’ is breached, often times
the power of arrest is not included in the IPO itself, thereby further aggravating
the vulnerable situation of the women.

An IPO may be sought only when the matter is pending investigations

by the police. The filing of a police report of the incidents of domestic violence
is therefore necessary. The police are often frustrated when women withdraw
their reports in an effort to give their marriages another chance. This then
feeds into the less than helpful attitude of some front desk officers when women
come forward to lodge reports. Gender sensitising programmes are crucial in
order to make the DVA work more efficaciously.13

12
Domestic violence means the commission of any of the following acts ; (a) wilfully or
knowingly placing or attempting to place, the victim in fear of physical injury (b) causing
physical injury to the victim by such act which is known or ought to have been known would
result in injury (c) compelling the victim by force or threat to engage in any conduct or act ,
sexual or otherwise, from which the victim has a right to abstain (d) confining or detaining the
victim against her will or (e) causing mischief or destruction or damage to property with intent
to cause or knowing that it is likely to cause distress or annoyance to the victim.
13
Visit www.wccpenang.org to view the Memorandum on the Domestic Violence Act 1994 :
Review and Proposals for Amendments

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2.4 Women in Politics

Currently there are 19 female members and 174 male members in the Parliament
of Malaysia. Women make up only 6% of the members of the State
Assemblies.14

Recently, Indonesia passed legislation to ensure that at least 30% of the

candidates in future general elections must be women.15 Sadly, no such
affirmative action exists here. In fact, the recent amendments to the Elections
Act 1958 may result in a drop in women’s nominations as candidates. The
amendment raised the maximum amounts of deposits that may be levied for
each candidate.

2.5 Child Act 2001 (CA)

This big piece of legislation is an amalgamation of the Juvenile Courts Act

1947, the Women and Girls Protection Act 1973, and the Child Protection Act
1991. All three Acts now stand repealed.

However, certain anomalies still remain from the repealed Acts. There
is still a differentiation between a child in need of care and protection (for
abused children) and children who are in need of protection and rehabilitation
(children exploited for prostitution). Most of the children who have been
prostituted are female, but all children who have been abused, including those
exploited for prostitution need care and protection. This differentiation
perpetuates the myth that the behaviour of a victim of sexual abuse contributes
towards the crime and that they are thereby ‘sullied’ by the crime, and constitutes
de facto discrimination against women.16

14
As at 2000 : Malaysian Information Clearing House On Women Development
15
The Star, 20 February 2003
16
Visit www.wccpenang.org to view a copy of the Memorandum on the Child Bill 2000

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2.6 The National Land Code 1965 ‘NLC’

Section 323 of the NLC provides that a person may file a caveat over a piece
of property which is not registered in that person’s name in order to give notice
that the said person has an interest in the property.

It is not uncommon that properties are registered in the sole names of

husbands, though paid for by both the husbands and wives. The wives’ interests
in such properties are not defined in the NLC as a caveatable interest, and the
wives are vulnerable to losing the roofs over their heads as their husbands may
sell the properties without their knowledge or consent.

3. Criminal Laws
3.1 Rape

3.1.1 Rape is a heinous crime and one of the worst forms of violence against
women. However, the definition of rape under s. 375 of the Penal Code ‘PC’
is narrow :- it is a man having sexual intercourse (ie only the insertion of a
penis into a woman’s vagina) with a woman against her will, without her consent
or with her consent but the consent having been obtained under duress,
misconception or under circumstances where she is unable to understand the
nature and consequences of that to which she gives consent.

Insertion of any other parts of a man’s body or objects into any other
orifices of a woman’s body does not constitute rape. These acts of sexual
assault, which may sometimes lead to greater physical injury, implies that they
are less ‘serious’.

The differentiation fails to take into account the impact these acts have
on the survivors, and does not focus on the fact that rapes and other forms of
sexual assault are acts of violence. Sexual intercourse and other sexual acts
are merely the form in which the violence is perpetrated.

The myths that rapes occur due to the way women dress or act, and
‘asked for it’ are sadly, alive and well. As there are no jury trials in Malaysia,

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(2003) XXXII No 3 INSAF 25

it is crucial that judges, the police, the medical staff in hospitals and prosecuting
officers are gender sensitised and have an understanding of the dynamics of
rape and sexual assault in order to secure convictions.

3.1.2 Marital rape is not recognised in Malaysia. It is totally anomalous that

whilst a husband may not use domestic violence against his wife, he may rape
her.

3.1.3 The new incest provisions under s. 376A and s. 376B of the PC17 does
not deal satisfactorily with a few issues, not the least of which concerns the
issue of consent. As the overwhelming cases of incest involve females being
the survivors, these provisions discriminate against women.

Due to the familial relationship between the rapist and the survivor,
instances where consent may be deemed vitiated must be adequately provided.
The new provisions have failed to do so. Such provisions are important to
reflect the power imbalances that exist in incest cases, and the opprobrium
with which society must view the breach of the trust that the rapist has
committed against the survivor.18

3.1.4 The requirement of corroboration is often a stumbling block in the proving

of rapes, and is discriminatory against women. In the leading case of Din v
Public Prosecutor, Thomson LP states

‘… the desirability of corroboration … springs … from the nature

of the offence... [and] as to the fact of the offence itself… The

17
s. 376A of the PC ‘A person is said to commit incest if he or she has sexual intercourse with
another person whose relationship to him or her is such that he or she is not permitted, under
law, religion, custom or usage applicable to him or her, to marry the other person.’
s. 376B (1) of the PC ‘ Whoever commits incest shall be punished with imprisonment for a term
not less than six years and not more than twenty years, and shall also be liable to whipping.’
s.376B (2) of the PC ‘It shall be a defence to a charge against a person under this section if it is
proved; (a) that he or she did not know that the person with whom he or she had sexual
intercourse was a person whose relationship to him or her was such that he or she was not
permitted under law, religion, custom or usage applicable to him or her, to marry that person or
(b) that the act of sexual intercourse was done without his or her consent.’
18
Visit www.wccpenang.org to view the Memorandum on Laws Against Incest 2002

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temptations of a woman to exaggerate an act of sexual connection

are well known and manifold.’19

Corroboration is a big stumbling block to overcome when there are few

signs of cuts and bruises; where the defence of consent is raised; when rapes
happen in detention; when the survivor knows the rapist; or where there has
been a long lapse of time between the incident and the making of the police
report. Some countries eg. the United Kingdom and Australia no longer require
that a corroboration warning be given to the juries. It is to be noted that in
Malaysia, jury trials no longer exist. Clearly the gender sensitivity of the judge,
along with his knowledge and understanding of the dynamics of rape is crucial
in his decision to acquit or convict.

Augustine Paul, J opines :

‘A false accusation concerning other offences can just as easily
arise from sexual neurosis, jealousy or fantasy or spite. The
danger is no less hidden in such cases. It may be that such
motives to falsely implicate may have a particular bearing upon
sexual cases, but, surely, this should only mean that the evidence
must be sifted with care, which should, in any event be done in a l l
cases.’20 (emphasis added)

3.2 The issue of women who are trafficked does not receive as much
attention in Malaysia as do other issues relating to women. Little is done to
deter the men who visit the brothels. Trafficked women, who are the victims,
may instead be charged with an offence under the Immigration Act 1959/63
for illegal entry and not having a valid work permit.

4. Policies on Women21

In 1989 the National Policy On Women ‘NPOW’ was formulated by the

19
[1964] MLJ 300
20
Augustine Paul, Evidence, Practice and Procedure, 2nd Edition, Malayan Law Journal Sdn
Bhd
21
Aminah Ahmad, Country Briefing Paper, Women In Malaysia, December 1998

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National Advisory Council On The Integration Of Women In Development

‘NACIWID’. Its objectives, as stated in the Sixth Malaysia Plan, are to ensure
equitable sharing in the acquisition of resources and information as well as
access to opportunities and benefits of development, and to integrate women
in all sectors of national development in line with their abilities and needs in
order to improve the quality of life, eradicate poverty, abolish ignorance and
illiteracy, and ensure a peaceful and prosperous nation.

A National Action Plan For The Advancement Of Women ‘NAP’ was

then formulated to put the NPOW in operation. With the incorporation strategies
and programmes contained in the Beijing Platform For Action, the NAP outlines
13 critical areas of concern to be addressed:
i. strengthening the machinery for the advancement of women;
ii. increasing public awareness and sensitivity of government bureaucracy
to women’s issues;
iii. activating non-governmental organisations ‘NGO’s’ to improve the
efficiency and effectiveness of socio-economic programmes;
iv. Women and Health;
v. Women and Education and Training;
vi. Women and Economy;
vii. Women and Law;
viii. Women and Power-Sharing;
ix. Women and the Media;
x. Women and Religion;
xi. Women and Culture;
xii. Women and Sports; and
xiii. Women and Family

In the sixth, seventh and eighth Malaysia Plans, a chapter on Women and
Development have been incorporated. It would appear that these policies have
within their ambit, the plans to gain substantive equality for women. However,
there does not appear to have been an assessment of the efficacy of these
policies.

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Conclusion

Many changes have been brought about in recent years to improve the status
of women in Malaysia. Most recently, it was the amendment of Article 8(2) of
the Constitution. The Guardianship Of Infants Act 1961 was amended to accord
mothers and fathers equal guardianship rights over their children. The Domestic
Violence Act 1994 was enacted to deal with domestic violence, the victims of
which are mostly women and children. The Distribution Act 1958 was amended
so that when a woman died intestate, her husband did not inherit the whole of
her estate to the exclusion of the children of the marriage.

Whilst women’s substantive equality is slowly becoming a reality, the

pace at which change is being brought about must be increased. There is great
resistance from the existing cultural and traditional practices, values and religions.
Men must be persuaded that they are an important agent of change in bringing
about the end of violence against women. Great political will is required to
increase the rate at which substantive equality between the sexes is brought
about. A greater share of the National Budget should be allocated in order to
implement educational and training programmes, to raise awareness, and to
bring about change in the value systems to ensure that women may enjoy in
full their civil, economic, social and political rights.

Acknowledgements

Heartfelt thanks to Taryna Lim Luen Im, Serene Ong Si-Oui, Lynn Oh Beng,
and Jamie Ng Su Bing for their assistance in the preparation of this paper.

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