Constitutional and Legal Framework
by Honey Tan Lay Ean
(A) A Historic Day
(1) Today, Malaysian women are taking charge. Women are embarking on a journey to reimagine justice for themselves; how justice ought to feel and look like. This Women’s Tribunal seeks to draw attention to critical issues affecting women in Malaysia. Advocates will present their cases and judges will make their rulings and recommendations.
(2) Women’s experiences are at the centre of this Women’s Tribunal but it would not surprise anyone that this key group of people — women — was lacking in the drafting of the Federal Constitution, and that there are only 33 women out of 222 members (i.e. 14%) in the Dewan Rakyat.
(3) Smart had noted that law comprises “a plurality of principles, knowledge and events”, and the power of law is its ability to define itself and other discourses. So it does not bode well that women’s representation at the Dewan Rakyat and State Assemblies remain low.
(4) Women’s engagement with the law has a chequered history. Law has been used to enable women to claim their rights, but so very often, it has discriminated against them.
(5) Over the two days of hearing women’s testimonies on 27 and 28 November 2021, we heard how the law has failed the many types of women who live in Malaysia.
(6) We learnt about how Orang Asal and Orang Asli girls were bullied in school and the difficulties they faced in accessing healthcare. Women gave evidence of being sexually harassed and stalked. Cleaners were discriminated in their terms of employment and victimised for unionising. Trans women face multiple forms of discrimination from their employers and physical violence from state actors. Equally heart-breaking were the testimonies shared by single mothers, children born of at least one Malaysian parent but could not obtain citizenship, and the case of the foreign domestic worker who died as a result of exploitation and abuse. We heard from a domestic worker calling for the recognition of domestic work as ‘work’, thereby attracting all the protection afforded to an employee. Indira Gandhi’s devastation continues even though the unilateral conversions of her children were set aside. This is because her youngest daughter — abducted by her ex-husband nearly 13 years ago — still cannot be found. It was harrowing to hear evidence from a sex worker about the violence she has faced from men and the police, and how badly she was insulted when seeking healthcare to which she was entitled.
(B) Constitutional and Legal Framework
The Federal Constitution
(7) Article 4 of the Federal Constitution (FC) states that the Constitution is the supreme law of Malaysia. There is formal equality in Malaysia, as article 8(1) of the FC provides that all persons are equal before the law and entitled to the equal protection of the law.
(8) Embedded within the FC is the doctrine of separation of powers. The Legislature, the Executive and the Judiciary are meant to act as a ‘check and balance’; no one arm of the Government can rule Malaysia.
(9) When Parliament or State Legislatures enact laws that infringe any of our rights, it is the Judiciary that corrects the wrongs.
(10) It includes situations when laws are passed to change something fundamental in the FC affecting our rights, e.g. to make the presumption of innocence illusory; to take away the right to acquire, hold and enjoy property without proper compensation; or to challenge decisions made by a religious authority.
(11) This basic structure doctrine means that the Legislature’s power to make laws has limits. It cannot pass laws that will take away the fundamental features, protections and rights set out in the FC. The Judiciary will declare such laws void.
(12) Article 8(2) of the FC provides:
Except as expressly authorised by this Constitution, there shall be no discrimination against citizens on the ground only of religion, race, descent, place of birth or gender in any law or in the appointment to any office or employment under a public authority or in the administration of any law relating to the acquisition, holding or disposition of property or the establishing or carrying on of any trade, business, profession, vocation or employment.
(13) This has been interpreted in the Federal Court case of Beatrice Fernandez to mean that women may only avail themselves of the protection under article 8(2) of the FC if some law or action of the Executive discriminates against her. Abdul Malek PCA continued:
Constitutional law, as a branch of public law, deals with the contravention of individual rights by the Legislature or the Executive or its agencies. Constitutional law does not extend its substantive or procedural provisions to infringements of an individual’s legal right by another individual.
(14) To date, the due diligence obligation of the Government to prevent discrimination by private actors has yet to be considered by the Courts.
(15) Malaysia acceded to the Convention on the Elimination of All Forms of Discrimination against Women (CEDAW) in 1995. It is binding on Malaysia and must be performed by our Government in good faith. ‘Government’ comprises all its branches: Executive, Legislature, and Judiciary.
(16) As a ‘dualist’ country, even though CEDAW has not been wholly transformed into domestic law, we should heed the Chief Justice of Malaysia, Tengku Maimun binti Tuan Mat, when she said in the recent case of Sundra Rajoo:
However, where the legislation is ambiguous and is capable of an interpretation which favours international law, the Courts ought not to put the State or the other branches of Government in a position which would render them in breach of international law whether it be conventional international law (treaty law) or customary international law.
(17) In an earlier Court of Appeal decision of CAS, Nallini Pathmanathan JCA (as she then was) held:
[…] the courts will still be charged with the duty to interpret local statutes in a manner where their ‘language will be in conformity and not in conflict with international law’. This includes the development of common law ‘by reference to statutory policy’.
(18) Siti Norma Yaakob FCJ in Mohd Ezam’s case went so far as to say:
If the United Nations wanted those principles to be more than declaratory, they could have embodied them in a convention or a treaty to which member states can ratify or accede to and those principles will then have the force of law.
(19) Using the basic structure doctrine and the principles of human rights can form a powerful frame on which to claim women’s rights.
(C) Law Through a Feminist’s Lens
Intersectionality and Complex Identities
(20) Discrimination is rarely based only on one identity of a person. When we listen to the testimonies of Paddy (pseudonym), Latha (pseudonym), Tharani and Roziah, it will become clear that they are discriminated because of their gender identity, work, race and/or religion.
(21) The Government ought to legally recognise this intersecting form of discrimination and how the negative effects on those discrimination are compounded.
Implicit Bias and Male Norms
(22) In considering women’s multiple experiences, they will encounter implicit male bias when it comes to setting standards and the making of rules and laws that appear neutral and objective. These male norms often have unintended negative impact on women. These male-centred standards derive their power from being accepted without criticism as ‘universal’.
(23) This is highlighted in the case of Siti Nur (pseudonym). As an engineer, she works in a male-dominated profession. In her office, it was acceptable to make sexist jokes, and as an unmarried woman, it was ‘okay’ for her to work long hours. On the other hand, she was denied overseas postings.
Double Binds and Dilemmas of Difference
(24) Women workers are often caught in ‘catch-22’ or ‘no-win’ situations. They are required to be ‘feminine’ (i.e. be slim, wear make-up and high heels) and yet possess ‘masculine’ traits (i.e. be competitive, go out drinking until late and participate in sexist jokes).
(25) It is a tough balancing act, and women workers should not have to put up with that type of work culture.
(26) Women workers often end up still being discriminated however they behave. Leslie (pseudonym), the sports coach witness gave her evidence that illustrates this conundrum.
Reproducing Patterns of Dominance
(27) Sexism and gender discrimination are resilient and resistant to change. They alter and are ‘updated’, enabling male dominance to continue.
(28) Changes are not inherently progressive and may not bring about major improvements in women’s lives.
(29) Working from home has not been a blessing to all women. The COVID-19 pandemic and the long periods of lockdown have negatively affected women disproportionately. Domestic violence increased during those periods. It has taken a toll on women’s health, especially their mental health and financial well-being. Most mothers took on a bigger share of facilitating their children’s learning while working from home. This is over and above their share of household responsibilities.
(30) We heard from Indira Gandhi. The Federal Court handed down a progressive and sensible judgment on the unilateral conversion of children to Islam and their custody.
(31) Despite that, Indira Gandhi is still unable to reunite with her youngest daughter. Patriarchal forces, and the lack of concerted effort by the Government in a situation that is complicated by politics and religion, have conspired to keep them apart.
(32) Women’s continued subordination is frequently attributed to their own ‘choices’ and they are told that they are responsible for the results that follow.
(33) Choice implies that a woman has ‘real’ alternatives, and making that decision represents her authentic preference. This ignores the fact that choices are not made in a vacuum. Culture and customary practices bear heavily on many choices made by women.
(34) When women break through the gender barriers, and work as e.g. engineers or sports pundits, they have to deal with sexual harassment and persistent gender stereotypical ideas, such as women should not travel or be seconded abroad.
(35) We heard from a Malaysian woman married to a Hong Kong citizen, who gave birth to her daughter in Hong Kong as she did not have enough money to return to Malaysia to do so. She was then forced to ‘choose’ to obtain a Hong Kong citizenship and passport for her daughter so that she could at least travel to Malaysia. Now her daughter is facing great difficulties in obtaining a Malaysian citizenship.
(36) The Government is obligated to respect, protect and fulfill the rights of women. In 2018, the CEDAW Committee noted that even though the Government had expressed its intention to propose a Gender Equality Bill, it had failed to do so. A dedicated piece of legislation on equality would enable women in Malaysia to claim their rights as promised in the FC and CEDAW, especially against private actors.
(37) The Government ought to amend or repeal laws that discriminate against women. Examples include amending the FC so that Malaysian women giving birth to their children abroad may automatically confer citizenship on them, and repealing the exception in section 375 of the Penal Code so that marital rape is criminalised.
(38) As recommended by the CEDAW Committee, Malaysia should set a concrete time frame to ratify the Optional Protocol to CEDAW (OP-CEDAW). OP-CEDAW establishes complaints and inquiry mechanisms. The CEDAW Committee may then hear complaints from individuals or inquire into grave or systematic violations of women’s rights under CEDAW.
(39) The National Policy on Women and the Plan of Action should be reviewed and updated so that it remains relevant.
(40) The Government should provide information on women’s rights and roll out programmes in many languages for women and girls in Malaysia, especially rural women and women who are in especially vulnerable situations. Human rights education should be part of the school curriculum.
(41) More legal aid should be made available to women as it remains a major stumbling block to them accessing justice in court. This includes amending the criteria that determine whom may receive legal aid.
(42) Where husbands cannot be located despite the wives’ best efforts, Native Courts ought to take steps to effect substituted service on the wives’ behalf. After that, they should exercise their discretion to grant divorces.
(43) Actors in the justice chain such as law and policymakers, the police, doctors, social workers, lawyers, and the Judiciary ought to receive regular training on gender awareness and sensitisation. Key components of such workshops should include understanding gender stereotyping and its harm, and women’s perspectives of the law.
(44) One of the changes brought about by the COVID-19 pandemic is that now virtual hearings, trials, and appeals are increasingly common. Judges have indicated that the changes are here to stay. Meanwhile, lawyers are struggling to come to terms with this new reality. Women litigants and witnesses who are not familiar and/or comfortable with technology will struggle, as will the women who are poor and/or live in rural Malaysia. Until the impact of virtual trials become clearer, they should be conducted only in urgent cases.
(E) In Closing
(45) Resorting to the courts should be a last resort, even when it comes to claiming women’s rights. Mediation and other forms of alternative dispute resolution should be prioritised.
(46) Knowledge is power, and the Government should increase its outreach to women to inform them of their rights. Simultaneously, gender awareness programmes for all three branches of the Government should increase.
(47) Women’s human rights should not be illusory. They ought to be enjoyed in all their glory.
 The Reid Commission that was tasked with drafting the Federal Constitution comprised five men. www.catholiclawyersmalaysia.org/sites/default/files/Reid%20Commission%20Report%201957.pdf. pp. 4 and 5. para 2. Accessed on 10 October 2021.
 C. Smart. Feminism and The Power of Law. Routledge. 1989. p. 4.
 “Women’s group calls for more female reps in state assemblies”. New Straits Times. 6 February 2021. www.nst.com.my/news/nation/2021/02/663629/womens-group-calls-more-female-reps-state-assemblies. Accessed on 10 October 2021.
 Alma Nudo Atenza v Public Prosecutor and another appeal  4 MLJ 1.
 Semenyih Jaya Sdn Bhd v Pentadbir Tanah Daerah Hulu Langat & Another case  5 CLJ 526.
 Indira Gandhi a/p Mutho v Pengarah Jabatan Agama Islam Perak & Ors and other appeals  1 MLJ 545.
 https://www.jac.gov.my/spk/images/stories/10_akta/perlembagaan_persekutuan/federal_constitution.pdf. Accessed on 10 October 2021.
 Beatrice AT Fernandez v Sistem Penerbangan Malaysia & Anor  2 CLJ 713 at p. 720 cf Noorfadilla binti Ahmad Saikin v Chayed Basirun & Ors  1 CLJ 769 where the Education Department was found to have discriminated against the Plaintiff when she was not employed as a temporary teacher because she was pregnant.
 General Recommendation No. 28 on the Core Obligations of States Parties under Article 2 of the Convention on the Elimination of All Forms of Discrimination against Women. UN Committee on the Elimination of Discrimination Against Women (CEDAW). para 13. 16 December 2010. CEDAW/C/GC/28. https://digitallibrary.un.org/record/711350?ln=en. Accessed on 19 December 2021.
 Article 26 (Pacta sunt servanda). Vienna Convention on the Law of Treaties 1969. https://legal.un.org/ilc/texts/instruments/english/conventions/1_1_1969.pdf. Accessed on 10 October 2021.
 General Recommendation No. 28 on the Core Obligations of States Parties under Article 2 of the Convention on the Elimination of All Forms of Discrimination against Women. UN Committee on the Elimination of Discrimination Against Women (CEDAW). p. 9. para 39. 16 December 2010. CEDAW/C/GC/28. https://digitallibrary.un.org/record/711350?ln=en. Accessed on 19 December 2021.
 Sundra Rajoo a/l Nadarajah v Menteri Luar Negeri, Malaysia & Ors  MLJU 943 at p. 11/26 para 45.
 CAS v MPPL & Anor  2 CLJ 454 at p. 466 para 33.
 Mohamad Ezam Mohd Noor v Ketua Polis Negara & Other Appeals  4 CLJ 309 at p. 386 cf the Court of Appeal decision in AirAsia Bhd v Rafizah Shima Mohd Aris  2 CLJ 510 at p. 521, para 37 where Zawawi JCA (as he then was) held: “In our considered opinion, CEDAW does not have the force of law in Malaysia because the same is not enacted into any local legislation.”
 The setting out of the analysis in sections C to G are based on Introduction to Feminist Legal Theory (3rd Edition) by M. Chamallas (2013) Wolters Kluwer Law & Business, Chapter 1.
 General Recommendation No. 28 on the Core Obligations of States Parties under Article 2 of the Convention on the Elimination of All Forms of Discrimination against Women. UN Committee on the Elimination of Discrimination Against Women (CEDAW). para 18. 16 December 2010. CEDAW/C/GC/28. https://digitallibrary.un.org/record/711350?ln=en. Accessed on 19 December 2021.
 “WAO services for domestic violence survivors remain available during enhanced MCO". Women’s Aid Organisation. The Star. 3 July 2021. www.thestar.com.my/opinion/letters/2021/07/03/wao-services-for-domestic-violence-survivors-remain-available-during-enhanced-mco. Accessed on 10 October 2021.
 T. Brower. “Women And The Pandemic: Serious Damage To Work, Health And Home Demands Response”. Forbes. 18 April 2021. www.forbes.com/sites/tracybrower/2021/04/18/women-and-the-pandemic-serious-damage-to-work-health-and-home-demands-response/?sh=67ba45e81f49. Accessed on 10 October 2021.
 Concluding observations on the combined third to fifth periodic reports of Malaysia. CEDAW/C/MYS/CO/3-5. p. 3. para 11.
 Concluding observations on the combined third to fifth periodic reports of Malaysia. CEDAW/C/MYS/CO/3-5. p. 4. para 12(d).