Equitable Rights and Re-Examining The Concept of Gender

2018 is the year to empower women.

Yet there is still much work to be done. The legal frameworks and policies – pertaining to marriage and family, are still perceived as unsatisfactory in protecting the rights of Malaysian women. Although undeniably, our legislative bodies have made some improvements, however many have criticized these changes as either superficial or, at the very least, insufficient.

Issues such as discrimination and violence against women, sexual harassment, job dissatisfaction, income disparity, inadequate women representatives in policy-making bodies or in boards of directorship continue to be familiar conundrums that plague our society. To address these issues, our society must be prepared to adopt tools that would provide valuable insights in eliminating inequity based on gender.

Applying International Tools within Domestic Context

International tools of measurement, such as the Convention on the Elimination of all Forms of Discrimination Against Women (CEDAW), the Universal Periodic Review, and the Global Gender Gap Report, to name a few, should not be rejected, nor should they be 100% adopted without taking into considerations of our domestic aspects.

The question is, how do we effectively translate these concepts within our society, considering the provisions for equality in our Federal Constitution, while balancing the constitutional provision that has enshrined Islam as the religion of Federation and at the same time, while we celebrate our diverse ethnicities and cultures? It is a tall order, but it is accomplishable if proper forum to enact policies are not used to serve anyone’s personal agenda.

Article 8 of our Federal Constitution has clearly provided for a sound basis to deny all discriminatory practices based on religion, race, descent, place of birth or gender. Regrettably, many private practices are not mindful of their obligations to abide by the law.

Late last year, there were complaints made by Muslim women working in the hotel and tourism industry that they were denied of the rights to don their obligatory head-scarves. Since then, the government has agreed to amend the employment statutes to criminalize any further discrimination based on religious beliefs. This commitment was because of many CSOs coming together to pressure the government into making a policy to such effect.

Stonewalling Actual Discourse

In the recent 69th session of the Committee on the Elimination of all Forms of Discrimination Against Women, many were surprised by the scathing attack on Malaysia. Regrettably, certain coalition report had misled the committee members into believing that Malaysia allegedly practises female genital mutilation (FGM). The portrayals given at the review session called to undermine the fatwa passed by the Fatwa Committee of the Malaysian National Council of Islamic Religious Affairs in 2009. To solve the many issues plaguing our women, whimsical and emotional statements are presented as facts.

In the same review session before the committee, Muslim women were reported to be at a disadvantage due to the failures within the Syariah legal system, where Muslim men are considered to have the upper hand as they may pronounce divorce out of court. While lengthy court procedures may be the case many years back, we should give credit where it’s due and keep on improving the system for women. To resolve the issue, the Islamic Family Law of Selangor has introduced the Rules of Mediation (Hakam) in 2014. This rule has paved the way to allow a wife to secure a divorce without the husband’s consent, dispensing the need for lengthy trials or the requirement to discharge strict burden of proof. So long as the marriage has been subjected to shiqaq, or prolonged quarrel or misunderstanding, divorce may be granted by the mediator.

There are actual and urgent familial and economic issues affecting our women such as the deprivation of alimonies and child support, lack of job-prospects and assistance for single mothers as well as scantiness of business opportunities for disabled women. Yet these issues were not properly highlighted.

In analysing what women need, we need to be fair by looking objectively on what is lacking so that genuine improvements can be made. Digressing from real issues that afflict our society only serves as a filibuster that eventually deny the right discourses. It is most unfortunate that a proper platform was not fully utilized to speak on actual issues but rather was expropriated to undermine the sanctity of Islam within our local context.

Re-examining the concept of gender

In the recent CEDAW session, Malaysia has also been pressured to enact the Gender Equality Act.

In our local scenes, we have seen that gender, is brought forth as an element that comes with its own set of peculiar packages of gender – biased solutions of feminism, that more often than not, derailed from our religious, social and cultural values. Gender is supposed to accommodate the many spectrums that include LGBT, gender-queer and gender-fluidity. Gender discrimination therefore encompasses a form of recognition for these genders, which has created a myriad of issues in terms of legal and health.

Gender equality has always been the raison d’être to reject the Syariah Legal system which emphasizes based on equity, on the different but complementary roles, skills and responsibilities of man and woman.

Yet, at the international level, only two concepts are widely proposed to initiate the discourse towards the empowerment of women; they are gender-mainstreaming and gender-equality. In examining the European Institute for Gender Equality documents, for example, they recognize ‘man’ and ‘woman’ in their effort to define equality. The Institute spells out gender-mainstreaming as a strategy towards gender equality that involves the integration of gender perspectives into the preparation, design, implementation, monitoring and evaluation policies with a view to promoting equality between women and men, and combating discrimination.

Within the 5 principles of gender-mainstreaming activities and implementation measures, men and women are the biological sexes mentioned as the beneficiaries. Firstly, gender sensitive language that refers to how women should be equally addressed and equally visible in any texts; secondly, gender specific data collection and analysis, in which results of these analysis should be used as the basis for all decisions; thirdly, equal access to and utilization of services, where the effects of these services must be ensured to benefit both men and women alike; fourthly, women and men are equally involved in decision making; and lastly, equal treatment integrated into the steering process by paying attention to the different circumstances on men and women to enhance the success rate, effectiveness and maximum utilization of staff and funds.

These principles are tools for making sure that women are not left behind nor being systematically discriminated. Any move towards this aim is applaudable and is in line with the concepts in Islam, which can be found in Surah al-Ahzab verse 35 that states the equal positions of men and women.

Within the context of Malaysia, according to Associate Professor Dr Jamaluddin Aziz of National University of Malaysia (UKM), gender-equality means giving equal opportunities to men and women to access the country’s resources that are of equal values within the society. Dr Jamaluddin’s definition maintains that while gender equality is a global agenda, Malaysia’s framework is guided by local sensibilities and sensitivities in the Federal Constitution.

We couldn’t agree more but the word gender, which is a socially constructed concept, lacks the definitive scientific proof and arbitrary in its definition, thus leaving it prone to manipulation for political reasons. For legislation to be effective in combating discrimination, the terms used must be specific and scientific, so as not to allow debatable interpretations to interfere with its implementation.

Recognizing Greatness in Everything

For so long, Malaysian women have paved ways towards greater recognition of women empowerment. We are blessed by the illuminating presence of many great women such as Tan Sri Dato’ Sri Dr. Zeti Akhtar Aziz, the former governor of Bank Negara Malaysia, Dato’ Nicol Ann David, the world No. 1 squash player, Mejar Patricia Yapp Syau Yin the world’s first female MiG fighter pilot and Wan Nur Mafudah Wan Yusof, the world prize winner for the Association of Chartered Certified Accountants (ACCA) Financial Reporting paper.

In celebrating these accomplishments and many more to come, we must constantly remember that women’s role is based on our equitable rights. The only way for Malaysian women to progress is to allow for intelligent discourses to take place within the society. It is vital for our community to motivate our men to respect the roles of women and to educate our women to demand for our equitable status within the society.

Joint statement by:

Azril Mohd Amin is the Chief Executive of Centre for Human Rights Research & Advocacy (CENTHRA) and Chairman of MACSA.

Associate Professor Dr. Rafidah Hanim Mokhtar is the President of International Women & Alliance for Family Institution and Quality Education (WAFIQ) and Co-Chairperson of MACSA.

*The Malaysian Alliance of Civil Society Organisations in the UPR Process (MACSA) is a coalition of civil society organisations with the specific aim and object to look into, as well as advocate, human rights issues in Malaysia for the UPR Process.