The Constitution can confer legal and formal equality but functional equality in any outcome is more difficult.
THE UN Women Annual Report 2012-2013 has just been published. It puts forward a very perceptive and broad-based plan for gender equality and female empowerment.
In addition to reiterating the need for increasing women’s leadership and participation, ending violence against females and enhancing women’s economic empowerment, the report breaks new ground by proposing engagement of women in all aspects of peace and security and making gender equality central to national development planning and budgeting.
I think that women’s rights are part of the broader mosaic of human rights. Any strides towards gender equality must be celebrated and supported. However, praise for the report must be balanced by an awareness of the possible hurdles in the path.
No magic wand: Gender bias cannot be exterminated by recourse to the law alone. The Constitution can confer legal and formal equality. Social and functional equality i.e. equality in any outcome is more difficult.
For example, the equal right to vote does not result in equal representation in Parliament, the Cabinet and the higher echelons of civil service or industries. Around the world, women are still trapped in stereotyped roles.
Deep-seated religious and cultural values, socio-economic imperatives, psychological and biological factors and traditions as old as history have to be modified. In this area there are no destinations, only uncertain journeys. The battle has to be waged on many fronts.
Work of equal value: It is not enough to give equal pay for equal work. Protection should extend to equal pay for work of equal value. Nursing, which is dominated by women, tends to pay lesser than the work of excavator operators who are mostly men. Paradigms have to be shifted radically to compare the social worth of different jobs. The economic implications are staggering.
Equal rights versus separate rights: In a male-dominated society, an equal treatment approach only benefits women who meet male norms. Feminists have to decide whether separate rights are better than equal rights. Some feminist literature is suspicious of the liberal notion of equality. “Equality as what?” it asks.
For instance in criminal law, provocation is a defence if the provocation was immediate. This reflects male psychology. Women’s reaction to abuse tends to be delayed, by which time it is too late to seek recourse to the defence.
The clock-in system at the office appears to be gender-free. But given the existentialist reality that house-keeping and child-care are customarily the responsibility of mothers and wives, a flexi-working hour system may be fairer for female workers.
Personal laws: In many Constitutions, including Malaysia’s Article 8(5), the promise of equality does not invalidate any provision regulating “personal laws”. In this area the sacrosanct and cherished provisions of religion and custom come face to face with the contemporary demand for gender parity. No one knows how this intractable dilemma must be resolved.
Education and empowerment: Education is one of the keys to self-respect, independence and empowerment. However, in Africa and Asia it is being argued that education is not enough. What is even more important is paid work and employment. Polytechnics and universities must, therefore, restructure their programmes to create self-employed entrepreneurs who will create jobs and not join the mass of unemployed graduates.
Dignity versus rights: Freedom and autonomy are important nourishments for the soul. Yet, it is also true that the exercise of some rights can diminish our dignity, perpetuate prejudices and entrench sexist views.
The hedonistic, sex-laced culture (run by men) that pervades modern civilisation denigrates women in scores of ways. The fashion, cosmetics, film, TV and advertisement industries hyper-sexualise women. Females are depicted as mere objects of sexual desire and as frivolous and gullible beings.
“Beauty pageants”, sports events and cheerleading squads do the same. Even girls in their early teens are not spared.
Sex sells well. Outside a women tailor shop in Megamall it says: “If you have it, flout it.”
Prostitution thrives and its peddlers are now anointed with the status “sex workers”. As long as there is prostitution there will be trafficking in women. Pornography pervades society. The Internet has worsened things.
The women’s rights movement that takes a principled stand against the pervasive exploitation of women by men should take a similar moral stand against the overly liberal use of personal autonomy by some of their kind.
Many women need to be reminded that is not always right to use our rights especially if that contributes to the denigration of the entire female race. It must be realised that liberal society’s moral laxity is, and will remain, fatal to women’s dignity.
Domestic scene: Malaysia has taken many legal and administrative strides towards the removal of discrimination against women. However, there are some unmet challenges. Bias against women is evident in some citizenship provisions, personal laws and in the definition of natives of Sabah and Sarawak.
The constitutional protection against gender discrimination does not apply in the private sector: Beatrice Fernandez v Sistem Penerbangan Malaysia (2005). Some criminal laws like Section 498 (on enticement) are patronising towards women. Laws on provocation and self-defence reflect male psychology.
As in most other cultures, many patriarchal institutions exist. Some religious and hereditary posts are reserved for males. Despite the political executive’s bold willingness to open up the syariah judiciary to females, old attitudes persist and female appointees have remained marginalised.
In sum, the ideal of equality before the law is unsurpassed in its beauty and potential. But it is such a complex bundle of contradictory ramifications that its goals will forever and everywhere remain only partially and formally realised.
> Shad Saleem Faruqi is Emeritus Professor of Law at UiTM. The views expressed are entirely the writer’s own.
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