MEMORANDUM On UNADDRESSED WOMEN S RIGHTS ISSUES Presented by: Persatuan Kesedaran Komuniti Selangor (EMPOWER) 1
Persatuan Kesedaran Komuniti Selangor (EMPOWER) submits this Memorandum on Unaddressed Women s Rights Issues to highlight the unseen discrimination against women in newly emerging issues. This Memorandum is a result of the Roundtable Discussion (RTD) on Gender Equality: Unaddressed Women s Rights Issues held on 31 October 2011. Representatives from four government agencies, 13 civil society organisations (CSO) and the academia brainstormed to come up with a list of recommendations and action plans to overcome discrimination and inequalities faced by women and girls in the areas of Employment and Family Law (civil law component); and as refugees, asylum seekers, lesbians, bisexual women and transgenders. Malaysia ratified CEDAW in 1995. Several measures were undertaken by the Malaysian Government, since its ratification, towards improving the status of women in Malaysia. Most significantly is the amendment of Article 8(2) of the Federal Constitution to disallow discrimination based on gender. However, other Articles of the Constitution do not appear to have received similar attention as there are still a few provisions that run counter to the spirit of Article 8(2). These are succinctly captured in the CEDAW Concluding Observations to Malaysia (2006) and they are as follows: i. CEDAW is not part of the Malaysian law and thus its provisions are not enforceable in courts, tribunals and administrative authorities. There are still CEDAW reservations which are not removed. ii. iii. iv. Neither the Federal Constitution nor any other legislation contains a definition of discrimination against women, in accordance to Article 1 of CEDAW or the principle of equality of men and women as in Article 2 (a). In fact, equality in Article 8(2) of the Federal Constitution is limited to public sectors only. An insertion of Article 121(1A) into the Federal Constitution has created a dual legal system of civil law and multiple versions of syariah law, which results in continuing discrimination against women, particularly in the matters of marriage, divorce and family relations. This has adversely affected both the rights of Muslim and non-muslim women. The narrow interpretation of marital rape is limited to the use of force and death threats by the husband, rather than based on lack of consent from the wife. The efforts shown by the government to integrate gender into its laws and policies have yet to yield results in terms of its implementation towards championing the issues of gender equality and promoting the rights of women in Malaysia. Discriminatory aspects in existing laws that impedes the exercise of women s rights include: The deficiency in the Domestic Violence Act even after its amendment on 4 October 2011 to include psychological abuse; 2
Inadequacy of the Penal Code to deal with sexual harassment; Ambiguous clause on marital rape in Section 375 of the Penal Code; Conferment of citizenship. A Malaysian woman married to a foreign man may only confer citizenship rights to her child if the child is born in Malaysia. Though Malaysian women married to foreigners may now confer citizenship on their children born abroad, the Home Ministry has not amended any laws on the matter, saying that the current status quo was sufficient to help the women administratively. Malaysia has yet to remove its reservations to Articles 9 (2), 16 (1) (a), 16 (1) (f) and 16 (1) (g) of CEDAW. The application of Article 8(2) of the Federal Constitution to the public sector only. Signing and ratifying any United Nations Convention, including CEDAW, comes with responsibilities which State parties or governments are required to fulfill in order to meet the substantive standards set to uphold women s rights. Malaysia s fulfillment of its legal obligations to the Convention includes the integration of CEDAW principles into domestic laws, policies and programmes, including the Federal Constitution. The government and its institutions are obliged to create an enabling environment to facilitate the enjoyment of these rights. In the event of nonimplementation of obligations, the government should take steps to overcome the barriers to ensure equality takes place in both de facto and de jure terms. The RTD was organised by Persatuan Kesedaran Komuniti Selangor (EMPOWER) in collaboration with the Human Rights Commission of Malaysia (SUHAKAM). Participants who attended the RTD consisted of 35 people from both nongovernmental organisations (NGOs) and government agencies. There were eight representatives from four government agencies - the National Registration Department, Ministry of Health, Immigration Department, and Ministry of Women, Family and Community Development. 27 representatives from CSOs were from Pink Triangle Foundation, All Women Action Society (AWAM), EMPOWER, Knowledge and Rights with Young People through Safer Spaces (KRYSS), National Council of Women (NCWO), Women's Aid Organisation (WAO), SUARAM, Seksualiti Merdeka, Sisters in Islam, National Union of Telecommunication Employees (NUTE) and Malaysian Trades Union Congress (MTUC). There was a lecturer from the Monash University and representatives from SUHAKAM. The RTD started with presentations from four writers of the book, Equality Under Construction: Malaysian Women s Human Rights Report 2010/11. The topics presented were: Women s Rights to Employment Because I Am a Refugee : The Denial of Human Rights to Refugee Women and Girls in Malaysia 3
CEDAW in Defending the Human Rights of Lesbians, Bisexual Women and Transgenders in Malaysia A CEDAW Approach to Family Law in Advancing Equality and Non-Discrimination Following the presentation, participants took part in small group discussions using the world Cafe methodology. Everyone had an opportunity to voice her/his opinions; hence these recommendations and action plans are the result of a participatory process from both the government and CSOs. With the presentation of this Memorandum, EMPOWER hopes that the relevant agencies identified will carry out the recommendations and action plans. This is the start of Malaysia s road-map to gender equality, to promote substantive equality in underrepresented and under-discussed issues. 4
5
Women and Employment Recommendations Action Plans Civil Society Organisations (NGOs) 1. Raise awareness in both private sector and the public sector on the rights to maternity benefits 2. Recognize women working in the Informal sector 1. Maternity leave of 90 days should be applicable to the private sector. 2. There should not be a cap and should not be up to the discretion of the employer. 3. Temporary staff in the public sector should also have maternity leave 4. Women working in the informal sector should be accorded same statutory benefits MTUC/MEF Government Agencies MOHR/ MWFCD Recognize housework and other types of unpaid work 1. Conduct research to identify the types of unpaid work 2. Housework should be recognised and paid Women s NGO MWFCD Implement minimum wages Recognize parental rights paternity leave, adoption leave and emergency care for dependents. Provide childcare for working parents 1. Negotiate with stakeholders for a minimum wage for each industry 1. Negotiate with stakeholders for paternity leave, adoption leave. 2. Emergency leave should not be limited to only spouses but also extended to take care of partners 3. Childcare should be affordable and accessible to both parents 4. LGBT partners should also get same benefits MEF/MTUC MEF/MTUC MOHR/MOF/ MWFCD/EP U MOHR/MOF/ MWFCD/EP U Implement Gender Sensitization Programs for all sectors 1. Conduct Gender Audits for all industries in both private and public sectors 2. Gender Audit to include people with diverse sexual orientation 3. Implement gender studies 6 from high school 4. Training for judiciary to read CEDAW in their judgements 5. Adopt Queer friendly policies (e.g. Medical leave for sex MTUC, CUEPACS MOHR/MOF/ MWFCD/EP U/ MOE/Judiciar y/ag Chambers/ MAC/PT
re-assignment surgery) Increase Women s Labour force participation to at least 50% Legalise sex work Recognize right of foreign wives to work 1. Implement National Plan of Action 2. Have comprehensive Law reform 3. Employers should also hire people with diverse sexual orientation to prevent harassment 4. Flexiwork and hours should be implemented and applicable to both men and women 5. Have sexual harassment laws 6. Have safety laws for the workplace 1. Advocacy and Lobbying 2. Law Reform 1. Advocate for Foreign wives to work without needing husband s Permission Women s NGOs & CSOs/MTUC MEF/FMM (factory) PT, WAKE, MAC Women s groups PEMANDU MOE MOHE (gender studies in high school and universities) MWFCD AG Chambers MWFCD Immigration Department 7
Women and Family Law Recommendations Action Plans Civil Society Organisations (NGOs) 1. Introduce domestic partnership - Law Reform SIS include same sex/ transgender AWAM * custody PT * adoption WAO * maintenance / permission to sign Bar Council off on behalf of spouse --> power Legal Aid of attorney * inheritance * purchase of property Government Agencies AG NRD Ministry of Home Affairs SUHAKAM Ministry of Women Police 2. Foreign spouse allow to automatically work without application for social / work permit if spouse working in Malaysia 3. Citizenship status (to check) not based on husband/ spouse status 4. D.V-Same sex,transgender, LGBT Law Reform education; remove exception in penal code; awareness on marital rape 5. Marital rape Underage marriages (below 18 is not acceptable) Consistent with international standards 8
9
Refugee Women and Girls Recommendations Action Plans Civil Society Organisations (NGOs) Provide refugees right to work Conduct study to allow refugees to work and to reduce the use of migrant lab. Study the advantages and disadvantages Reform law to fulfil obligation of the government to provide a safe environment for the refugees Over haul Detention centres (facilities) Improve the conditions of detention centres IOM Provide skills training eg: making art and crafts to occupy time NCWO Provision for separate facilities for transgenders in Immigration Detention Centres Provide training for immigration officers to be more sensitive to refugees Provide language communication skills to enforcement officers and immigration detainees Educate refugees Educate refugees on their rights in Malaysia SUARAM Increase public awareness on refugees Raise public awareness on the 1951 SUARAM Convention and advocate for the ratification Increase public awareness of refugees Ratify 1951 convention Lobby and law reform Migration working group 10 (MWG), CARAM Asia, Government Agencies KDN, Immigration Department, MOHR KDN SUHAKAM KDN
Increase protection against violence against women (VAW) VAW committed by both domestic and by agencies Educate enforcement agencies Gender sensitization for enforcement agencies including health sectors, service providers dealing with refugees including on SOGI Provide training for cross-cultural communication and language skills to enforcement agencies dealing directly with refugees Health Provide free health screening services and info on personal health Ensure health providers are sensitised on SOGI Provide access to healthcare during the interim period of status determination and resettlement. Access to public education Provision of free primary education to ALL children in Malaysia Remove reservation on A.2 of CRC (nondiscrimination) to extend CRC to refugees Raise awareness on VAW and redress action Tenaganita, SUARAM MAC AWAM, WAO, UNHCR MOH, LPPKN, MOE MOH MOE MWFCD 11
Lesbians, Bisexual Women and Transgenders Recommendations Action Plans Civil Society Organisations (NGOs) Review and reform all laws Form a technical working Form a civil society liaison inconsistent with CEDAW / CRC group - lobby group focused working group to work with on effecting change in laws Justice and Sisters and Bros effecting LBTS WAO To follow studies and PTF research AWAM Refer to existing and ongoing research, making studies recognise and publicised To identify research that been done and gaps & work with civil societies and academic to fill the knowledge gaps Compare Wolfenden Report(civil law/syariah) and Homosexual Law Reform Officially recognise transgenders as having legitimate identity society Sensitive public to be aware, to accept transgender, to recognise Sensitize civil servants, govt agencies towards transgenders issues Removing gender/creating another category based o need 12 NCWO AWAM Government Agencies NRD SUHAKAM SUHAKAM Ministry of Women, Family and Community Development
Establish structures in public education Studies on LGBT s bashing, violence on LGBT, LGBT community itself has to work on reclaiming rights in order to get them to come out and make reports Eliminate all forms of genderbased discrimination and violence - Recognition of domestic Start awareness of LGBT community in school kelas kemahiran hidup, civic minded/moral education and religious studies on awareness of existence also include human rights 101 advocated by NGOs media sensitisation regular column /airtime on the issue SKMM (Suruhanjaya Komunikasi Media Msia) -review and reform guidelines to suit society -to be more neutral -min. of information needs to be sensitised -to be balanced not too much, or too little NGOs JAG LGBT Community Immigration Dept Ministry of Women SKMM Min. Eduacation Ministry of Women 13
partners in DVA and LRA - Removal of Article 5 reservation of CEDAW 14