23 February 2018
On February 19, Malaysia’s progress in women’s rights was reviewed at the 69th session of the United Nations Convention on the Elimination of All Forms of Discrimination against Women (Cedaw). This is the second time Malaysia has been reviewed after it acceded to Cedaw in 1995.
The review process is undoubtedly one of the best platforms to raise awareness of issues concerning the rights of women in Malaysia.
The Malaysian Alliance of Civil Society Organisations in the UPR Process (Macsa) welcomes the government’s commitment in combating discrimination against women including the government’s assurance to enact Gender Equality Act, as well as its commitment in upholding and implementing a legal framework and policies pertaining to marriage and family on the basis of equality between men and women in both our civil and Shariah legal systems.
Macsa, however, would like to put on record our reservation about the use of the term “gender” as opposed to “sex” in the proposed Act, as the former, a socially constructed concept, lack the definitive scientific proof and arbitrary in its definition; leaving it open to manipulation for political reasons.
In order 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 implementation.
Macsa also applauds the commitment and participation of other civil society organisations and has derived much good from the reports that were prepared by the Human Rights Commission of Malaysia (Suhakam) as well as the Coalition of NGOs’ shadow reports.
However, Macsa wishes to express its regrets that some pressing and urgent issues were conspicuously left out from these reports; as well as on the absence of engagement with Muslim CSOs on the issues specifically pertaining to the interest of the Muslim communities.
Taciturnity on hijab ban
Macsa notes that the hijab ban among Muslim employees working in the hotel industry and tourism sectors was not mentioned in any of the reports. This ban is a systematic form of religious discrimination which has denied many Muslim women their rights to wear hijab at the workplace.
Macsa has received complaints that many graduates who applied for internships in hotels and tourism industries were denied placement on the basis of their insistence to honour the wearing of hijab.
This is truly an appalling form of discrimination involving more than 20 hotels, where qualified Muslim women are denied jobs solely on the basis of their religious belief.
Simplistic approach on the unilateral conversion issue
Further, Macsa is also alarmed at the stance taken by Suhakam in supporting the Malaysian judiciary’s recent incongruous decision in the Indira Gandhi case; and on Suhakam’s suggestion that the government reintroduce the previously proposed (but withdrawn) section 88A to the Law Reform (Marriage and Divorce) Act 1976, to ban unilateral conversion of children by one parent.
While such an approach, on the surface of it, may seem to ensure equality between both parents in determining the religious upbringing of the children, closer inspection into the intricate issue however reveals that it is far too simplistic and would only act to discriminate against one of the parent who converts to Islam.
This is because, to require a father or mother to obtain the consent of the other in cases where the parents are already in the midst of a divorce proceeding — and therefore are no longer on good terms — would almost certainly be impossible.
Such a requirement would therefore amount to stripping away the fundamental right of the father or the mother to determine the upbringing of the child.
The parent who converts to Islam would not have any opportunity at all of being heard, for the mandatory requirement of consent, which is rendered impossible in the light of the relationship turning sour, would obstruct the court from even entertaining any such application should the mandatory requirement not being fulfilled.
This is in direct contradiction to an earlier decision by the Malaysian Federal Court in the year 2008, in the case of Subashini Rajasingam vs Saravanan Thangothoray and Other Appeals wherein the court took a more harmonious approach, to allow a parent who converts to Islam to unilaterally convert the children as well, but at the same time accords the non-converting parent the right to objection.
And where such objection is raised, the matter would be resolved by the court on a case to case basis, taking into account all the surrounding facts, the opposing wishes of the parents as well as the paramount interest of the child.
Wrong emphasis on a non-issue
Macsa is also concerned that United Nations Cedaw committee members were misled into believing that Malaysia allegedly practises female genital mutilation (FGM), when in fact, what is currently being practised is a form of female circumcision which has been proven by health data monitoring and clinical studies to have no negative medical complications.
Macsa condemns all portrayals given at the review session of any impropriety of the practice in Malaysia especially the remarks that call to undermine the fatwa passed by the Fatwa Committee of the Malaysian National Council of Islamic Religious Affairs in 2009.
It must be stressed that there is a huge difference between FGM on the one hand, and female circumcision on the other under the Shafie school of Islamic jurisprudence.
The fatwa only concerns the latter, and not the former, and raising concerns over FGM to undermine the fatwa is disingenuous and unfair.
So much attention has been given to the issue of female circumcision in terms of its medical harms and benefits, that we strongly feel more pressing issues are being marginalised; such as the increasing prevalence of homosexuality and bisexuality in our country, which has contributed significantly to the spread of HIV infections.
Joint statement by:
Azril Mohd Amin, lawyer and chief executive of the Centre for Human Rights Research & Advocacy (CENTHRA) and chairperson of MACSA
Associate Professor Dr. Rafidah Hanim Mokhtar, president of International Women’s Alliance for Family Institution and Quality Education (WAFIQ) and co-chairperson of MACSA.