A presentation by Ivy Josiah, Executive Director, Women's Aid Organisation (WAO) at the SUHAKAM Forum entitled Human Rights for the Disadvantaged on Human Rights Day in Malaysia, 9 September 2001 Asia Society thanks WAO for permission to reprint this article.
Why Human Rights for Women?
The Rights of Women within a Human Rights Framework
Human Rights Approach as an Effective Tool
Recent Global Movement
Violence Against Women
Rights of Muslim Women
Let me start by stating that in 2001, there is no country in the world where men and women enjoy complete equality, no country in the world where women do not face unequal treatment both in the public and private sphere.
Women have had to and still continue to claim their rights to work, to vote, to equal pay, to choice, to education, to travel, to health, to be free of violence, to be equal to men. Women's rights have become synonymous with struggle and movements, they were described as the suffragette movement, women's lib, the feminist movement and in the 1990s the rallying cry "women's rights are human rights"
Human Beings are born equal in dignity and rights. These are moral claims which are inalienable and inherent with in all human individuals by virtue of their humanity alone.. They are fundamental, necessary for individuals to survive, and to realize their potentials to the fullest. These claims are articulated and formulated in what we call today human rights and these rights have been translated into legal rights both national and international
From the very start of the evolution of the concept of rights as adopted in the Universal Declaration of Human Rights women were invisible "Tradition, prejudice, social, economic and political interests have combined to exclude women from prevailing definitions of general human rights and to relegate women to secondary and or special interests status within human rights considerations".1
Furthermore, mainstream human rights as interpreted exclude and do not address women's specific gendered experiences because of the artificial division between " public" and "private" spheres where the public sphere is subject to regulation and scrutiny but the private sphere where women are subject to violations (domestic violence, rape, confinement ) are exempted if not hidden in the name of family, religion and culture.
The failure of many nations to confer women the human dignity and respect they deserve, simply as human beings necessitates the recognition that women by virtue of being human beings should be accorded her human rights . It will be very difficult to argue that we are not human . Women had to start claiming rights that there are inherently theirs but were not articulated in law, policy and practice. In short, we are claiming what is rightfully ours.
- "Human rights can be a powerful language as they clearly pinpoint state accountability. It can be a potent tool for advocacy that effectively changes the dynamics of women's engagement with the state, from a position of needs (subject to the whims of the powers- that -be) to a position of strength premised on rights that women are entitled to and are guaranteed in the first place.
- Second, they constitute international standards against which state actions or inaction can be challenged whereby specific actions can be demanded from the state.
- Third, the evolving concepts of human rights, vis-à-vis an emerging women's rights advocacy makes room for the infusion of women's perspectives into human rights discourse. This allows women in the process to clarify among themselves what their human rights should mean and should be. In this regard, adopting a rights approach in women's advocacy connotes an organizing or mobility element to it.
- Fourth, the idea of women being holders of rights by itself can be very empowering to many women.2
- In June 1993, the Vienna World Conference on Human Rights the international community openly acknowledged that the body of international law and mechanisms established to promote and protect human rights has not properly taken into account the concerns of over half the world's population. States formally recognized the human rights of women as "an inalienable integral and indivisible part of human rights/" and expanded the international human rights agenda to include gender specific violations.
- In December 1993, the United Nations General Assembly adopted the Declaration on the Elimination of Violence against Women. This Declaration categorizes gender-based violence against women as an issue of human rights generally and one of sex discrimination and inequality in particular.
- In September 1994, the international community underscored the importance of the right to health, including reproductive choice for women, at the International Conference on Population and Development in Cairo.
- In September 1995, the Beijing Declaration and Platform for Action, adopted at the United Nations Fourth World Conference on Women, confirmed women's rights as human rights and the human rights of women and the girl-child as an inalienable, integral and indivisible part of all human rights and fundamental freedoms." 3
In Malaysia, August 2001, will be marked in the herstory of the women's rights movement in Malaysia as the Federal Constitution was amended to prohibit discrimination on the basis of gender.
"Except as expressly authorized by this Constitution, there shall be no discrimination against citizens on the ground only of religion, race, descent, gender or place of birth, 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 …."
Although the house voted in one voice on gender equality, and this constitutional recognition can be a powerful instrument, it will remain in danger of being a mere token unless it is accompanied by a comprehensive review of law, policy, practice and implementation to ensure that women will benefit equally.
The women's groups and SUHAKAM had proposed that the amendment does not limit itself to the word "gender" alone, but to include a definition of discrimination as provided for in CEDAW:4
Discrimination is defined as "any distinction, exclusion or restriction made, which has the intention or effect of nullifying or impairing the recognition, enjoyment and exercise of all rights by all persons in the social, cultural, political and economic spheres".
Simply put, even though a law was not intended to be discriminatory, if the effect of its implementation denies equality between men and women, the law has discriminated against women.
To give you an example, let us look at an amendment that took place in October 1999 when Parliament amended the Guardianship of Infants Act, to provide equal guardianship rights. However the amended legislation only addressed the rights a sector of female population by denying equal guardianship rights to Muslim women. This was in principle discriminatory to Muslim women. To correct this discrimination, 10 months later the Cabinet issued an administrative directive to allow all mothers to sign documents related to their children ( passports, school transfers) ensuring that all Malaysian women irrespective of race and religion are conferred equal rights. But it does not stop here, as it is the Immigration and Education officers at the ground level who have to put this directive into place, so any attempt on the part of an officer who questions a woman why she is signing an application for her child's passport is in itself discriminatory. Thus, it is incumbent upon the relevant ministries and its departments to make sure that every front desk officer is informed that mothers are guardians. One simple corrective measure is to change forms that read "father/legal guardian" to just "guardian".
Thus although the law formalises equality, the practical realization of these rights were only available to women upon corrective measures. These principles of substantive equality and corrective measures are principles outlined in CEDAW.
The challenge that lies ahead for both government and civil society is to truly reflect the spirit of Constitution as guaranteed in the amended Constitution, the right to equality and non discrimination for Malaysian women of all faiths.
And I make this point deliberately as a doubt has been cast since Article 8 (5)a of the Constitution states that the equality provision does not invalidate any provision regulating personal law. So, is Syariah above the recent Constitutional amendment?. It is the opinion of women's groups that any discrimination that exists in Syariah law has to be amended based on the indisputable belief that Islam upholds the principles of equality and justice for all. It will be untenable and unacceptable that there will be different standards for Muslim women.
I would now like to move on to to address the following inequalities and discrimination that Malaysian women still face:
Malaysian women who are married to non-Malaysian men and give birth to children outside of Malaysia cannot confer citizenship to their children, these children are considered foreigners, into Malaysia. When a child is born outside Malaysia, the child is not conferred citizenship by operation of the law unless the father is a Malaysian citizen.5 A child whose mother is a Malaysian citizen does not share the same privilege. The father must be a Malaysian citizen in order for the child to be conferred citizenship in Malaysia.
Under Section 15 (1) the Federal Constitution foreign men who marry Malaysian women cannot receive permanent residence ( P) status unlike foreign women married to Malaysian men., although some reprieve has been given that foreign husbands who are professionals wall be given work permits, it still amounts to unequal opportunities for Malaysian women in comparison to Malaysian men.
In 2000 alone, there were 1217 reported cases of rape and 3,468 cases of domestic violence. Everyday women and girls are subjected physical, sexual and psychological abuse, that cut across race and class. Laws relating to rape, domestic violence and sexual harassment are still inadequate.
Muslim women continue to face hardships in cases of divorce, polygamy, custody, maintenance, and division of matrimonial property. There are shortcomings in Syariah law and its implementation that contributes to the abuse and injustice faced by Muslim women. For instance, while a man can easily get divorce, the court is reluctant to grant a divorce without the agreement of her husband.
These concrete examples of unequal treatment are not a mere flaw of the law but it reflects a deeper value system by society. Deeply entrenched attitudes and practices perpetuate inequality and discrimination against women.
To continue to work for women human rights several challenges lie ahead.
Firstly, developing a culture of rights. A culture which respects and appreciates women's rights has to include democratic space and freedom of expression. It is disconcerting but not wholly surprising that human rights are still perceived as a western value. Today, as we celebrate Human Rights Day in Malaysia, we are acknowledging the fact that this is not a western value, but a universal value. But whilst we sit here in the comfort of an air-conditioned hall, there are many Malaysians whose human rights have been violated. I refer specifically to the political activists who are still incarcerated under the draconian law of the Internal Security Act, and I would like to reiterate the call for abolishment of the Internal Security Act. We need to work harder to make the state and community understand and accept that human rights are universal, inalienable and indivisible. There should be no hierarchy of rights and it is not accorded to citizens because of goodwill or at the pleasure of the state or an individual.
The role of SUHAKAM is crucial here as this independent institution is charged with the responsibility of setting the standards by which civil society will adhere to. SUHAKAM's first report proposing that article 8, be amended to prohibit discrimination on the basis of sex was an added important voice in the lobby for this reform. SUHAKAM's 66-page report early last month which found that the police had violated human rights at the aborted demonstration on the Kesas highway last November an important document that expects professional conduct by government agencies.
Secondly, confronting deeply entrenched attitudes that uphold male privilege at the expense of women's rights cannot be just the work of women alone, men must be encouraged to participate fully in all actions towards equality and the elimination discrimination against girls and women.
On a final note let us work together to make every day a human rights day for women .
6 September 2001
Women's Aid Organisation
1. Bunch,C. and S. Frost, Women's Human Rights: An Introduction, Center for Women's Global Leadership.
2. IWRAW Asia Pacific, Training Materials, 2000.
3. J. Connors, "General Human Rights Instruments And Their Relevance To Women", A. Brynes, Advancing The Human Rights Of Women, Commonwealth Secretariat, 1997.
4. Convention on the Elimination of All forms of Discrimination Against Women.
5. Federal Constitution of Malaysia, 2nd Schedule, Part II, 1(b).
Women's Aid Organisation
Pertubuhan Pertolongan Wanita
P.O. Box 493 Jalan Sultan
46760 Petaling Jaya
Selangor Darul Ehsan
Tel. +60 3 7956 3488
Fax. +60 3 7956 3237
Email: [email protected]