Supplemental Advocate Statement: Issues Relating to Economic Rights
by Vivian Kuan and Hannah Nanneri Nanggai
During the second day of the Women’s Tribunal (28 November 2021), the panel of judges, in particular Shanthi Dairiam, made a number of comments that are valuable for the purpose of advocacy. She pointed out that in respect of international instruments, the Convention on the Elimination of All Forms of Discrimination against Women (CEDAW) must be considered as an international standard that needs to be applied on two grounds, namely:
(1) Principle of equality and non-discrimination (e.g. articles 1 and 2); and
(2) Human rights standards in the field of employment (article 11).
She also pointed out that occupational safety is recognised in employment, and there must therefore also be due recognition of the same in domestic work. Furthermore, the gender ideology associated with work needs to be expanded on an equal basis for both men and women.
We agree with the comments and observations made by Shanthi Dairiam, and provide this supplemental Advocate Statement in respect of the issues relating to economic rights that were raised by the witnesses.
Malaysia acceded to CEDAW in 1995. Malaysia has reservations in respect of articles 9(2), 16(1)(a), 16(1)(c), 16(1)(f), and 16(1)(g). In the recently concluded Universal Periodic Review (UPR) process, the CEDAW Committee commented on the lack of a legal framework to fully incorporate principles of equality and non-discrimination into Malaysian law. In particular, the Committee observed that article 8(2) of the Federal Constitution is insufficient, as it is only relevant to the public sector and leaves no avenue for redress for those whose rights are violated by the private sector.
(2) Occupational Safety and Health
The International Labour Organization (ILO) and the World Health Organization (WHO)’s Joint Committee on Occupational Health has defined the purpose of occupational health as follows:
Occupational health should aim at: the promotion and maintenance of the highest degree of physical, mental and social well-being of workers in all occupations; the prevention amongst workers of departures from health caused by their working conditions; the protection of workers in their employment from risks resulting from factors adverse to health; the placing and maintenance of the worker in an occupational environment adapted to his physiological and psychological capabilities; and, to summarize: the adaptation of work to man and of each man to his job (emphasis added).
The ILO recognises that domestic workers can be particularly vulnerable to certain occupational health and safety risks, and included examples such as “working long hours, limited rest, exposure to chemicals, lifting heavy weights, [and] specific psychosocial risks and violence”; and that these risks may be higher for migrant domestic workers, who may lack legal protection and face linguistic, social, and cultural barriers.
(3) Gender Ideology and Work
Gender ideologies, simply put, are the views people hold in respect of gender roles. In general, people who hold a ‘traditional’ gender ideology may believe that the division of labour is for men and women to perform the role of breadwinners and caretakers in the home, respectively.
It is important to recognise the impact of gender ideology on people’s well-being and quality of life in an increasingly ‘woke’ society, where gender norms are being challenged.
(1) Meenambal, Roziah, Tharani, and Sarasvathy
Based on the testimonies of these witnesses, it was evident that these women faced discrimination solely due to their gender and perceived gender roles. Roziah even pointed out that it was the culture of patriarchy that impacted her directly even as she exercised her right to freedom of expression regarding the unfavourable conditions at work.
Articles 1 and 2 of CEDAW place an obligation on a State Party to undertake positive and active measures to ensure the elimination and prohibition of discrimination against women. The State Party must refrain from any act or practice of discrimination against women (article 2(d)). This is especially relevant in the case of Sarasvathy, who was mistreated by the police during her arrest and in the lock-up.
In articles 11(c) to (e), there is a positive duty on the State to ensure that women have access to equal remuneration, which includes benefits and right to social security. This is especially crucial in the case of Meenambal, who as a domestic worker is not eligible for benefits other than Social Security Organisation (SOCSO) contributions, and suffered a lack of due recognition for her domestic work.
Malaysia, as a State Party to CEDAW, must take positive steps to ensure that the provisions in CEDAW are adopted and/or formulated into the local legislative framework.
(2) Adelina Lisao and Meenambal
Domestic work should not be harmful, yet domestic workers are continually exposed to harm that, in a worst-case scenario, led to the unfortunate and untimely demise of Adelina Lisao due to severe abuse by her employer. In her testimony, Meenambal stated that she has breathing complications due to prolonged exposure to toxic cleaning chemicals, including bleach. She also stated that she has no medical benefits and is not afforded any medical protection whatsoever by her employer.
In the ILO’s Domestic Workers Convention, 2011 (No. 189) (C189), article 13 provides that every domestic worker has the right to a safe and healthy working environment, and imposes an obligation on the member State to take “effective measures, with due regard for the specific characteristics of domestic work, to ensure the occupational safety and health of domestic workers”. However, Malaysia has yet to ratify C189.
In this regard, and following from our recommendation for Malaysia to ratify C189, we also recommend that Malaysia takes heed of the ILO’s “Guidance on Improvements of Occupational Safety and Health in Domestic Environment for Domestic Workers and Employers” (Guidance).
This Guidance, which was developed in 2016 in Jakarta, provides a user-friendly checklist for both employers and domestic workers to ensure a safe working environment at home. The use of images and simple language may overcome the linguistic barriers that migrant domestic workers may face in Malaysia.
In addition, it is important to recognise that domestic work is not a gender-specific employment and may be expanded to all genders equally. Recognising the contributions of domestic workers on par with other jobs is essential to ensure dignity, and to widen the scope of opportunities to both men and women equally.
We thank the judges for their input, and hope that the six statements in respect of the issues relating to economic rights are sufficient for their consideration ahead of the delivery of their findings and recommendations on 4 December 2021.
 “Malaysia’s Cedaw Review: Stem the Regression of Women’s Rights”. Coalition of Malaysian NGOs in the UPR Process (COMANGO). 26 February 2018. https://uprmalaysia.com/2018/02/26/malaysias-cedaw-review-stem-the-regression-of-womens-rights/.
 Alli, Benjamin O.. Fundamental principles of occupational health and safety. Second Edition. Geneva: ILO. 2008. p. 22. https://www.ilo.org/wcmsp5/groups/public/---dgreports/---dcomm/---publ/documents/publication/wcms_093550.pdf.
 ILO Labour Migration Branch. “Migrant domestic workers: promoting occupational safety and health”. Geneva: ILO. 2016. http://www.ilo.org/wcmsp5/groups/public/---ed_protect/---protrav/---migrant/documents/briefingnote/wcms_467720.pdf.
 Guidance on Improvements of Occupational Safety and Health in Domestic Environment for Domestic Workers and Employers. ILO. 2016. http://www.ilo.org/wcmsp5/groups/public/---asia/---ro-bangkok/---ilo-jakarta/documents/publication/wcms_548677.pdf.