AT the 2018 Golden Globes Award on Jan 7, Oprah Winfrey, the respected American media personality, delivered a stirring call for “a new day” on the horizon for American women. Her speech made me reflect on the faltering quest for gender equality in our own constitutional democracy.
At the outset, it needs to be acknowledged that the ideal of sex equality is so complex and contradictory that everywhere it is buffeted by currents and cross-currents.
On the positive side, Malaysia has plenty of institutions, laws, principles and policies to secure justice for women.
At the policy level, the Government is officially committed to the Third Millennium Development Goal to empower women. A federal Cabinet post oversees women’s affairs. The country invests heavily in education and back in 2010, adult female literacy rate was already 91%.
Malaysia has acceded (though with some reservations) to a number of international instruments on gender equality, among them the UN Convention on the Elimination of All Forms of Discrimination Against Women (CEDAW).
In 2001, our Constitution was amended in Article 8(2) to outlaw discrimination on ground of gender in some (though not all) fields. The Employment Act requires maternity leave in most sectors. There is prohibition of night work and underground work for women.
The Domestic Violence Act and the Penal Code provide protection against violence in the home. Non-Muslim family law has evolved significantly towards equal treatment.
The Penal Code has been amended repeatedly in the last few years to take note of feminist thinking on issues of rape, incest and abortion. The plight of unwed mothers and victims of domestic violence has attracted state support.
Some judges have heard the beckoning of justice in gender equality cases. In Noorfadilla Ahmed Saikin (2014), the court held that terminating a trainee teacher on the ground that she was pregnant was a violation of our Constitution and our international commitments under CEDAW.
In some parts of the country, train, bus and taxi services incorporate features to prevent sexual harassment.
Despite the above helpful developments, there are many areas where the rays of equality do not reach.
In citizenship for children, Articles 14, 15, 24, 26 and Part III of the Federal Constitution emphasise the father’s citizenship or residence. The mother’s status does not matter. In laws relating to permanent residence for a spouse, there is discrimination against Malaysian females with foreign spouses. In Article 161(6) the status of a “native” of Sabah is dependent on descent from the father.
Under Article 8(5), “personal laws” are exempted from the equality requirement. In Article 12(4), the religion of a child for the purpose of education is determined by a parent or guardian.
Regrettably, the courts have interpreted Article 12(4) to mean “any one parent or guardian” despite the interpretation clause 2(95) in Schedule 11 that “words in the singular include the plural”. The devastating effect is that some fathers have unilaterally converted their children to another religion without the consent of the aggrieved mother.
Some provisions of the Law Reform (Marriage & Divorce) Act 1976, the Women and Girls Protection Act 1973 and the Immigration Act affect women adversely though unintentionally. Domestic servants, who are almost all females, are not protected adequately by the Employment Act. Child marriages are common. Sexual harassment in the workplace is widespread. Rape remains a scourge. The basic principles of the Penal Code reflect male psychology, for example, the laws on provocation, self-defence and enticement.
Judicial practice has not always helped women’s rights. In Beatrice Fernandez v Sistem Penerbangan Malaysia (2005), the dismissal of an air hostess because she became pregnant was upheld as permissible under the collective agreement.
Besides the provisions of the law, there is the practical dimension. Formal equality does not always result in functional equality. Formal equality does not always produce substantive justice. Intent and outcomes do not always match.
Despite the equal right to vote and to seek political office, of the 222 MPs, fewer than 30 are women. In the federal Cabinet, state executive councils and the civil service, a lot less than half of decision-making posts are filled by women.
In the corporate sector, GLCs and statutory bodies, a similar pattern of under-representation at the top is discerned even though female enrolment in tertiary education stands at about 60%. On the university rolls of honour girls do as well, if not better, than boys. Why are they then holding jobs mostly at the middle and lower rungs of our workforce?
There is a dilemma about whether women should have equal rights or separate rights. Differential treatment perpetuates negative perceptions but is nevertheless needed as an aspect of affirmative action to remedy injustices of the past.
It is alleged that female-dominated vocations are deliberately allocated low salaries. There is a call that “equal pay for equal work” should evolve towards “equal pay for equal work of equal value”.
Everywhere in the world, a wide gap exists between the law in the book and the social, cultural, religious and economic realities on the ground. Legal provisions are necessary but not enough. They do not significantly dent pervasive patterns of bias and oppression.
We need to put our heads together to see how our patriarchal past can accommodate the contemporary demand for equality and dignity. The panorama of possibilities is vast if we listen to each other with open hearts.
Emeritus Professor Datuk Dr Shad Saleem Faruqi is Tunku Abdul Rahman Professor of Law at Universiti Malaya. The views expressed here are entirely the writer’s own.