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2006-09-07,1:53 PM

The slow road to gender equality

Chok Suat Ling

Malaysia may be moving forward in efforts to eliminate gender inequality but women’s groups tell CHOK SUAT LING that these are only the first steps of a marathon.

A WOMAN getting lewd propositions from her boss, another sacked the moment her expanding belly is noticed and a company making overtime work a condition for promotion.

If report cards were given out for progress in eliminating such cases of sexual discrimination, women’s groups say Malaysia’s score would fall short of an A.

The Government has made some moves in the right direction. The most noteworthy was the 2001 amendment of Article 8 of the Constitution to prohibit discrimination on the basis of gender.

But more remains to be done. The amendment is not sufficient and nothing drives this point across more than the Beatrice Fernandez case, say women’s groups.

Non-governmental organisations are calling for legislation — specifically a Gender Equality Act — to prohibit sexual discrimination in no uncertain terms.

Women’s Centre for Change (WCC) vice-president Zarizana Abdul Aziz says the constitutional amendment in 2001, hailed as one of the major successes of law reform, was irrelevant to litigants such as Fernandez.

When flight attendant Fernandez took her ex-employer Malaysia Airlines to court after she was sacked following her pregnancy and refusal to resign, she lost her case.

The High Court dismissed her application in 1996, and the Court of Appeal did the same in 2004. Fernandez then appealed to the Federal Court. This was dismissed last year.

The Court of Appeal ruled that the Constitution only protects individuals from violations of their rights by the state or public authorities.

The Federal Court affirmed that guarantees in the Constitution do not extend to acts of private individuals. It also held that although the collective agreement requires a stewardess to resign when she becomes pregnant, there is no definite clause in the CA that discriminates against the applicant.

Zarizana says this is not in line with developments in the legal doctrine of equality and the principles of substantive equality entrenched in the United Nations’ Convention on the Elimination of All Forms of Discrimination against Women (CEDAW).

Malaysia acceded to CEDAW in 1995. The treaty addressing women’s rights and equality has a strong international mandate with 184 ratifications.

Zarizana says the constitutional amendment is also not useful in cases of sexual harassment.

"The Constitution does not spell out the process. We need a mechanism that is effective. And the absence of legislation that adopts CEDAW as part of Malaysian law allows the courts to not take cognisance of the convention," the activist says.

WCC has come up with a draft Bill which they intend to forward to the authorities. It would prohibit direct or indirect discrimination, harassment and victimisation based on gender.

It goes on further to describe discrimination as treating women differently for reasons of pregnancy, childbirth or breastfeeding; marital status; parenthood; and family responsibilities. In determining discrimination, the offender’s motive would be irrelevant.

A person who is threatened by another for wanting to take action under the proposed legislation also has recourse.

It also provides for indirect discrimination, Zarizana adds. "This is when a person imposes a condition or practice that someone of one gender cannot comply or is unreasonable for them to comply with. For instance, making overtime work a condition for promotion."

She says the legislation also provides for the establishment of a commission to receive complaints and a tribunal to preside over cases and award appropriate damages.

When a claim is lodged with the tribunal, the Bill ensures the dispute would not be the subject of proceedings between the same parties in court.

The Bill also provides for the appointment of a chief conciliator to mediate on complaints referred to him by the commission.

For Women’s Aid Organisation (WAO) executive director Ivy Josiah, Deputy Prime Minister Datuk Seri Najib Tun Razak’s announcement on Aug 25 that there would be a review of laws that discriminate against women is heartening.

But, she says that, like the amendment of Article 8, it will not be enough.

"It is a piecemeal approach. It is working with what you already have and does not really tackle the deep entrenched structures of gender bias.

"There is a need for an overarching law that describes and helps interpret the constitutional amendment."

There is some uncertainty over the application of such legislation on Muslims, especially in areas such as inheritance and polygamy. Activists claim it was exactly this dilemma that caused a delay in the passing of the Domestic Violence Act.

Lawyer and independent researcher Salbiah Ahmad recalls that the domestic violence campaign took 10 years: "Some were saying ‘Let’s not include the Muslims,’ so we can get it off the ground, but we did not want this, so it took 10 years."

But Zarizana does not forsee any problems.

She admits some Muslim countries have said it is impossible to provide for gender equality. But, at the same time, some have managed to do it.

"Islamic law comprises a pool of juristic opinion. So, what we should do is go for its best practices. Why should everything be interpreted in the worst possible way for women?"

Josiah says: "Many Muslim women approach the WAO for help so I have to speak out.

"We do not want a situation where non-Muslim women have more rights. So we need to look at inheritance under Syariah laws, for example, and see how we can come up with the best possible interpretation to allow women to inherit equally."

Some activists caution against over-dependence on legal means to achieve gender equality. They stress that legislation alone will not suffice.

International Women’s Rights Action Watch Asia Pacific executive director Anuradha Rao underscores the importance of extra-judicial strategies such as education, dialogue and grassroots support.

"Even if there is constitutional reform, enactment of progressive laws and landmark judgments, they have to be strengthened. Activists need to use other strategies until the principles are firmly established."

But Rao says Malaysia needs to pass enabling legislation so that provisions in CEDAW can be operational at ground level.

"The people have to demand incorporation. It is not going to be handed on a silver platter. Very few Governments have incorporated it at national level."

Anna Hung Yuk Wu, adviser to Shantou University’s law school in Hong Kong, says NGOs need to continue to "push beyond the law".

"They should not say ‘Here’s a law, we’ve got it, so let’s rest’. I am worried about Hong Kong getting into that state. The NGOs have to go on fighting. There is still much to do. For instance, there is the stereotyping of women in textbooks," says Wu, who was in Kuala Lumpur recently for a conference on gender equality.

Women’s groups are optimistic that the authorities will follow through with legislation against sexual discrimination.

They note that Women, Family and Community Development Minister Datuk Seri Shahrizat Abdul Jalil said in June that the time had come to seriously consider a Gender Equality Act.

"While we are sincerely grateful, we hope it will not take another 10 years to becomer reality," quips an activist.

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