LAWS are a reflection of prevailing attitudes in any society. Thus it is essential to review them to determine whether they still reflect current attitudes or have fallen far behind changing trends.
The exercise is particularly necessary in relation to the legal status of women in terms of nationality, inheritance, ownership and costs of property, freedom of movement and custody and nationality of children. Those that still discriminate against women have to be amended.
Laws are also instruments of social change. They can play a major role in bringing about desired behaviour.
Women are often perceived as secondary earners, who only supplement the family income, rather than co-earners. Hence, the enacting of new laws, for example Domestic Violence and the Distribution of Property, is a means of changing undesirable conduct.
The term “law” in this context encompasses the constitution, legislation, case law, administrative circulars that have legal effect and customary law – any pronouncement that sets out the rights and obligations of individuals.
The Malaysian Government should consider the possibility of establishing procedures, such as a national machinery to monitor the situation of women and help formulate new policies to end discrimination.
This process should include a law reform committee with equal representation of females and males from government and non-government organisations to review all laws, as well as in-depth research to determine instances when laws may be discriminatory or protective of women’s rights.
Under the Constitution, Article 8 prohibits discrimination on the grounds of race and religion, among others, and until recently omitted the word “sex” – thus suggesting that it is permissible to discriminate on the grounds of sex.
This perhaps was done to cater for the many provisions that provide for “protective discrimination” of women under the Employment Act and to avoid rationalising the alleged discriminations under the Islamic Family Law.
What is needed perhaps is a study of the concept of “equality” and the effect of the addition of the word in Article 8. This can be done as part of a wider study on the possibility of acceding to or ratifying the convention on the Elimination of All Forms of Discrimination against women.
Article 8 was amended to include the word “sex” but society has not felt its impact as yet.
Citizenship provisions of the Constitution clearly discriminate between males and females in that foreign wives of male citizens can acquire citizenship in Malaysia (Article 15) but foreign husbands of female citizens have no such rights.
Malaysian women who marry foreign men are treated less favourably compared to Malaysian men who marry foreign women. Surprisingly, these disparities find their root in the Constitution, the highest law of the land.
Two areas in which women are treated unfavourably are in relation to obtaining permanent residence and citizen status for their husbands, and in relation to the status of their children.
Husbands of Malaysian women who are not citizens face much longer delays in obtaining permanent residence status compared with the spouses of Malaysian men.
Moreover, under paragraph 3(1) of the Immigration (Prohibition of Entry) Order 1983, non-professional men who marry Malaysian women run the risk of losing their job permits and visas.
Article 15(1) provides that any married woman whose husband is a citizen is entitled, upon making an application to the Government, to be registered as a citizen. This right is not accorded to a married man whose wife is a citizen. These women are denied the opportunity to continue living and working in their home country once married.
The implementation of these laws has resulted in the forced migration of women. If their husbands choose to remain with them, it is almost impossible to obtain a work permit without permanent residence status, thus putting an unfair burden on women to support the entire family.
Foreign wives are dependent on their husbands when applying for permanent residence status. Immigration procedures require husbands to be present and they must consent to their wives’ application. The women face deportation when their visas expire if their husbands refuse to support their application for permanent residence status.
Foreign wives who are separated or divorced from their husbands may be forced to leave the country because they are no longer eligible to apply for permanent residence status, regardless of whether they have Malaysian children and the length of time they stayed in Malaysia.
These obstacles to obtaining permanent residence status deny women the right to remain in the country in which they have been a spouse and/or mother for several years.
In some circumstances, delays in processing foreign wives’ permanent residence applications may result in women remaining in abusive relationships. These women are at the mercy of their husbands and are effectively denied the entire range of rights in a marriage.
The Pensions Act and the Employees’ Social Security Act has been recently amended giving the husband the benefit of the wife's pension while a widow can claim the pension of the husband even if she remarries.
A major development is the amendment to the Income Tax Act that allows separate assessment for all married women regardless of their source of income. This, however, is not enough.
There is a need to have separate taxation that entails separate files and separate returns for the spouses instead of the present practice of one file and one set of returns in the husband’s name.
The law on guardianship of children is seen as being discriminatory against women. The amendments to the Guardianship of Infants Act granting mothers equal right to the guardianship of their children only apply to non-Muslims.
However, a Muslim woman can apply for an International Passport for her children in the absence of the husband and as well as apply for an identity card and seek admission to school. This was made possible by the directive of the Federal Government to the relevant Ministry.
Laws that need to be enacted include the Equity Act and the Sexual Harassment Act and other legislation prohibiting discrimination in employment and providing for the compulsory setting up of childcare centres for male and female workers.
The Government is encouraging more women to enter the labour market and is considering adopting flexi-hours.
Laws in themselves are no guarantee that women will enjoy all the rights provided. They have to be applied without discrimination. It is imperative that enforcement officers, judicial officers and support staff of courts are gender-sensitised and aware of the concerns of women.
The number of women in the higher levels of the judiciary need to be increased and should reflect the racial components of our society.
The administration of family law causes hardship to non-Muslim women because of the multiplicity of laws and courts. The establishment of family courts would not only simplify procedures but will reduce the inevitable delays arising from family cases having to compete with other cases for dates of hearing.
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