by Shanthi Dairiam
On 27 and 28 November at the Women’s Tribunal Malaysia, an initiative of the Joint Action Group for Gender Equality (JAG) and Engender Consultancy, 26 women — cis and trans — gave testimonies of human rights infringements and violations they experienced in several contexts.
While the violations were contextual according to the different situations of the women, what was common to all of them was the lack of adherence to the overarching constitutional guarantees of equality and non-discrimination (articles 8(1) and 8(2) of the Federal Constitution), and the non-recognition of the very foundation of the Federal Constitution, which is the basic structure doctrine.
Such problems originate from prevailing political culture and sociocultural norms that ignore these fundamental values and principles.
2. Equality and Non-Discrimination
Although equality and non-discrimination are entrenched in the Federal Constitution, they are not values or principles that have been understood or applied for the protection of the rights of the most vulnerable women, including the women who gave their testimonies.
This is regrettable as Malaysia is a party to the Convention on the Elimination of All Forms of Discrimination against Women (CEDAW), and has undertaken legally binding obligations to progressively eliminate all discrimination against women and enable the achievement of their right to equality. The commitment to this obligation was undertaken by Malaysia 26 years ago.
The achievement of equality for women must be substantive. It requires not only formal legal equality, as provided for in article 8(1) of the Federal Constitution, but also demands equality of results in real terms, in other words the practical realisation of equal rights (CEDAW article 2(a)).
CEDAW provides a very enlightened definition of discrimination, by identifying that discrimination is socially constructed and that neutral laws, policies and practices can unintentionally have the ‘effect’ of discriminating against women. This is referred to as indirect discrimination in article 1 of CEDAW.
The concept of neutrality as discrimination requires that consideration be given to preexisting inequalities and disadvantages that women may bear, due to historical and current socially constructed discrimination they face.
Furthermore, different groups of women face different and multiple forms of discrimination. Hence a contextual, intersectional and diversified approach to the elimination of discrimination is essential.
CEDAW’s requirement of substantive equality and freedom from discrimination, that may occur in the private and public spheres, provides a theoretical framework by which the State is obligated to identify all barriers to women’s advancement, assess needs, set goals, identify measures for action and assess accomplishments. Merely prohibiting discrimination, as article 8(2) of the Federal Constitution does, is inadequate.
The model of substantive equality, or the practical realisation of the right to equality, requires an understanding of the multidimensional nature of equality. This concept of equality is applicable to all development initiatives, be it poverty eradication, employment, or betterment of health, and in varying contexts, whether rural or urban.
It is imperative that the multidimensional needs of everyone, in particular the most vulnerable, are addressed through development practice as manifested in Malaysia’s five-year plans and in the implementation of the Sustainable Development Goals (SDGs). Only then will the SDGs’ intention to “leave no one behind” become a reality.
Therefore, the multidimensional model of equality that has to be adopted is about:
Equality of opportunity;
Equality of access to the opportunity; and
Equality of results.
Understanding the concept of equality of access is critical. It requires that people are treated differently, so that this results in similar opportunities and choices being guaranteed to women and other vulnerable groups according to their differing situations.
... equal consideration for all may demand very unequal treatment in favour of the disadvantaged (Amartya Sen)
Malaysia’s development strategies have to be assessed for their effectiveness in uplifting the most vulnerable from the cycle of inter-generational poverty that they are trapped in.
3. Claiming Women’s Rights: Understanding fundamental rights under the Federal Constitution
Fundamental liberties are interdependent and part of our basic constitutional structure. As the Federal Constitution is the supreme law of Malaysia, any laws or actions that contravene or are inconsistent with it shall be void (article 4(1)). However, the Federal Court of Malaysia has also recognised the preeminence of fundamental rights under the Federal Constitution as part of the basic structure and identity of our constitution.
As such, when it comes to human rights, the courts in Malaysia are empowered to scrutinise the constitutionality of any law or government policy or action from two perspectives:
(a) The courts will consider whether the law, policy or action contravenes the express words of the Federal Constitution; and
(b) The courts will examine whether the law, policy or action undermines or is an attempt to undermine the special status accorded to fundamental rights as a fundamental component of the basic structure of the Federal Constitution.
The courts in Malaysia have also recognised two further core principles of international human rights law:
(a) Fundamental rights and provisions must be construed as broadly as possible, while provisions which limit those rights must be constituted as narrowly as possible. When construing interrelated provisions, the courts will read them as a whole, having regard to the purpose and intent of those provisions and harmonise their collective meaning.
(b) Fundamental rights are interconnected and certain fundamental rights, such as the right to life and liberty, are foundational rights, in that the deprivation of a foundational right may affect other aspects of human freedom and dignity. Therefore, the violation of any one human right cannot be considered in isolation but must be scrutinised for the impact it may have on the ability of a person to exercise and enjoy other fundamental rights.
Applying these legal principles to some of the cases heard at the Women’s Tribunal, enjoying the right to education will go a long way to enabling a person to find work with decent, living wages. That in turn, will provide them with shelter and food. Even more significant is the compulsion to consider how human rights and fundamental freedoms can be read as linked to other rights such as citizenship, which is in fact governed by Part III of the Federal Constitution, a concept so inextricably linked to the right to life and personal liberty contained in article 5(1). Any restrictions should be read harmoniously with the more positive elements of fundamental liberties guaranteed in the Federal Constitution.
Having heard the 26 testimonies, the judges have come to a collective view that all these women have endured serious violations of their rights. For them justice has not been served. Using the basic structure doctrine coupled with the interrelated nature of human rights forms a powerful frame on which to claim women’s rights.