Committee on the Elimination of Discrimination against Women reviews reports of Malaysia

Committee on Elimination of Discrimination
  against Women  

20 February 2018

The Committee on the Elimination of Discrimination against Women today considered the combined third to fifth periodic reports of Malaysia on its implementation of the provisions of the Convention on the Elimination of All Forms of Discrimination against Women.

Presenting the reports, Suriani Ahmad, Secretary-General, Ministry of Women, Family and Community Development of Malaysia, said that the women agenda continued to be the focus of economic development in Malaysia.  The aim was to increase female labour participation, and ensure at least 30 per cent women participation at the managerial and decision-making levels in the public and corporate sectors.  The Domestic Violence Act, which had entered into force on 1 January 2018, protected victims in valid marriages, and the amendments to the Law Reform (Marriage and Divorce) Act 1976 addressed issues arising out of the conversion to Islam of one party to a marriage.  Conscious of the critical importance of literacy in transforming Malaysia into a developed country by 2020, large investments were being made in primary, secondary and tertiary education; over 96 per cent of the population were literate and the gross enrolment rate stood at 97 per cent for the primary level and 90 per cent for the secondary level.  Abortion was legal where there was risk to the life or physical or mental health of the mother, and in case of rape, incest or severe foetal abnormality.  Measures to eliminate discrimination against women were in place but were fragmented and spread between ministries, agencies and policies; consolidating and streamlining those into a single and effective practical measure was Malaysia’s utmost priority.

In the ensuing discussion, Committee Experts commended Malaysia for the achievements in the health and education sectors, and welcomed the inclusion of gender as a prohibited ground for discrimination by the 2006 amendment of the Federal Constitution.  Experts urged Malaysia to adopt a gender equality act, and so fully domesticate the Convention and its definition of discrimination and prohibit discrimination by State and private actors.  The Committee was very concerned at the evolution of Malaysia towards a more rigid society in which religious authorities were taking measures with a direct impact on the rights, freedom and autonomy of women, Muslim and non-Muslim.  For the past 12 years, rather than progressing Malaysia had regressed in the application of the Sharia law in matters of marriage, inheritance and family.  There was no commitment to a progressive legal reform that the Committee had called for in 2006, Experts remarked, stressing that such a reform was the only way forward in a country where 40 per cent of the population was not Muslim.  What prevented Malaysia from moving forward and joining other countries of the Organization of Islamic Cooperation which had successfully removed discrimination against women and done away with polygamy, child marriage, inheritance, and unilateral conversion, they wondered.

In concluding remarks, Ms. Ahmad reiterated the progress achieved in the implementation of the Convention in Malaysia.

Dalia Leinarte, Committee Chairperson, commended Malaysia for its efforts and encouraged it to address various recommendations which the Committee would issue with the purpose of the more comprehensive implementation of the Convention throughout the State party.

The delegation of Malaysia was made up of representatives from the Ministry of Women, Family and Community Development, Ministry of Home Affairs, Attorney General’s Chambers, Ministry of Education, Ministry of Health, Ministry of Education, Ministry of Rural and Regional Development, Ministry of Human Resources, and the Permanent Mission of Malaysia to the United Nations Office at Geneva.

All the documents relating to the Committee’s work, including reports submitted by States parties, can be found on the session’s webpage.  The webcast of the Committee’s public meetings will be available via the following link: http://webtv.un.org/meetings-events/.

The Committee will reconvene at 10 a.m. on Wednesday, 21 February to consider the seventh periodic report of Chile (CEDAW/C/CHL/7).

Reports

The Committee is considering the combined third to fifth periodic reports of Malaysia (CEDAW/C/MYS/3-5).

Presentation of the Reports

SURIANI AHMAD, Secretary-General, Ministry of Women, Family and Community Development of Malaysia, started by reiterating the commitment of Malaysia to addressing women’s issues and realizing gender equality in the country, and to remaining open to learning from and adopting the best practises of others.  The women agenda continued to be the focus of economic development in Malaysia, with a specific aim to increase female labour participation and ensure at least 30 per cent women participation at the managerial and decision-making levels in the public and corporate sectors.  Over the years, women’s participation in the labour force had increased from 48 per cent in 2011 to 54 per cent in 2016, while the eleventh Malaysia plan had set the objective of 59 per cent by 2020.  Turning to the progress achieved in the legislation, Ms. Ahmad noted that some crucial laws had been amended, including the Penal Code to criminalize rape in a valid marriage, the Domestic Violence Act which had entered into force on 1 January and protected victims in valid marriages, and the amendments to the Law Reform (Marriage and Divorce) Act 1976 to address issues arising out of the conversion to Islam of one party to a marriage such as the dissolution of marriage, maintenance, custody of the children born as a result of the civil marriage and distribution of property.  The amendment to legal aid legislation, effective from 1 December 2017, introduced a more practical approach to determine a person’s eligibility for legal aid and streamline it to low-income earners, irrespective of race and gender, who were under the Government’s special aid programmes.

Malaysia aspired to ensure universal access to education and full enrolment of all children from preschool through to the upper secondary level; in 2016 its gross enrolment rate stood at 97 per cent for the primary level and 90 per cent for the secondary level.  Conscious of the critical importance of literacy in transforming Malaysia into a developed country by 2020, large investments were being made in primary, secondary and tertiary education, which brought literacy levels from only 25 per cent in 1970 to 97 per cent for men and 96 per cent for women in 2016.  In the area of health, in 2016 life expectancy at birth had risen to 72 years for men and 77 years for women, while maternal mortality rates had declined from more than 40 per 100,000 live births in 1991 to 29 in 2016.  Abortion was legal where there was risk to the life or physical or mental health of the mother, as well as in case of rape, incest or severe foetal abnormality.

In 2011, Malaysia had adopted a policy of at least 30 per cent of women in decision-making in the corporate sector, and since 2012 there had been an increase in the number of women in the foreign service.  In terms of political representation of women, today they held 24 of the 222 seats in the House of Representatives and 12 out of 70 seats in the Senate.  One woman with disabilities was currently serving her second term in the Senate.  In 2017, the Prime Minister had announced a quota of at least 30 per cent women Senators in the Upper House.  Ms. Ahmad concluded by recognizing that measures to eliminate discrimination against women were in place but were fragmented and spread between ministries, agencies and policies, adding that consolidating and streamlining those into a single and effective practical measure was Malaysia’s utmost priority.    

Questions from the Experts

A Committee Expert raised questions on the institutional and legal framework and noted that a large number of recommendations by the Committee issued after the review of Malaysia in 2006 had not been implemented.  The same went for numerous recommendations that Malaysia had accepted after its Universal Periodic Reviews in 2009 and 2014.  In that context, what was the timeframe and planned steps towards the ratification of the Optional Protocol to the Convention, and ratification of the International Covenant on Civil and Political Rights and the International Covenant on Economic, Social and Cultural Rights, and the withdrawal of the reservations still in force regarding some articles of the Convention?

What were the plans concerning the adoption of a Gender Equality Act to fully incorporate the Convention, including the definition of discrimination, into the national law, and so clearly recognize that discrimination by State and private actors was prohibited?  This was important given the narrow interpretation by the Courts of the scope of article 1 and 2 of the Convention, which had, shockingly, recently ruled that discrimination against women on the basis of pregnancy by private companies was not unlawful.

Could the delegation explain the plans and timeframe for tackling the growing gap in the rights and protection against discrimination enjoyed by women, Muslims or not, which arose from the dual legal system with coexistence of civil and various Sharia laws?  The Expert was concerned about the growing discrepancy that arose from the political authorities increasingly taking measures, or accepting that religious authorities took measures that impacted on the freedom and autonomy of Muslim women.  The impact was felt also by non-Muslim and non-Malay women, as all faced the evolution towards a more rigid society.

What measures were being taken to ensure peaceful coexistence and avoid the dangerous division of people as Muslims and non-Muslims or Malays and non-Malays; and to protect women human rights defenders, and activists fighting against discrimination based on sexual orientation and gender identity from violence and reprisals, and generally protect the civic space and enable a peaceful public debate?

Other Experts asked about a fatwa issued against a civil society organization which addressed the rights of Muslim women.  Other Muslim countries in the 1980s and the 1990s had looked at Malaysia as an example, remarked an Expert and warned about the danger of a different pace of development – and discrimination – of women from different walks of society, and stressed the importance of ensuring that Muslim women were not left behind.

Responses by the Delegation

Responding, a delegate explained that Malaysia had a dual legal system and that Malaysian women continued to have legal rights before the law, equal legal capacity, and the right to recourse.  With regard to the ratification of the Optional Protocol to the Convention and ratification of the two International Covenants, Malaysia had to focus not only on passing new laws but that the whole operational machinery for their implementation was in place, which called for long preparations and consultations with stakeholders and agencies.

SURIANI AHMAD, Secretary-General, Ministry of Women, Family and Community Development of Malaysia, said that the gender equality bill was currently being prepared, and this was a priority.  The sexual harassment bill was also in the pipeline.  Time was needed for consultations with stakeholders, agencies, and ministries, which would be implicated in the implementation of those bills.  Lesbian, gay, bisexual, transgender, intersex and queer/questioning persons were treated on an equal footing with others.

A delegate explained that the fatwa had been issued against Sisters in Islam non-governmental organization, which had then filed a recourse in the court for its revision.  The matter was now pending before the Federal Court.  This case was an example that everyone in Malaysia had the possibility of a legal recourse, and everyone would abide by the Court’s decision.  The fatwa was issued by the Fatwa Committee, which delivered positions on various issues, and which, once gazetted, became compulsory for Muslims.  A fatwa was not governed by the civil law and applied only to Muslims.

SURIANI AHMAD, Secretary-General, Ministry of Women, Family and Community Development of Malaysia, said that 2018 had been declared a year of women empowerment, and that the aim was to leave no women behind, with the participation of all Ministries.

Questions from the Experts

In the next round of questions, a Committee Expert urged Malaysia to be more diligent in its reporting and to make a positive effort in withdrawing the existing reservations to articles of the Convention.  The Expert welcomed the inclusion of gender as a prohibited ground for discrimination by the 2006 amendment of the Federal Constitution, and commended the willingness to adopt a gender equality act.  What was the timeframe for the adoption of this law?

When would the gender policy be updated and what institutional measures were being planned to strengthen gender mainstreaming?  There was a concern that grouping women, families and community development in one ministry promoted and perpetuated patriarchal attitudes and stereotypes – what measures were being taken to address this concern?

What mechanisms and policies were in place to enable the national human rights institution to discharge its mandate in accordance with the Paris Principles?  The National Human Rights Action Plan had been adopted in 2015 – how did it include the protection of rights of persons of different sexual orientation and gender identity?

The representation of women in decision-making bodies, particularly in the private sector, was disappointing.  Were there any temporary special measures to increase the participation of women on boards of private companies, as well as to reserve seats for women in the Parliament and the Senate?

Responses by the Delegation

SURIANI AHMAD, Secretary-General, Ministry of Women, Family and Community Development of Malaysia, explained that usually, it took about one or two years for consultations on the adoption of new bills; however, as 2018 was a year for the empowerment of women, it was hoped that the adoption of the gender equality bill would take a shorter time.  In terms of promoting the participation of women in the private sector, there were several incentives and initiatives, including the flexible working time, and the childcare spaces at work.  Malaysia was a parliamentary democracy in which representatives of the people were chosen in a democratic manner; who held the posts in Parliament or the Senate depended on the preferences of the people.  The President had expressed support for the political participation and representation of women and had put forward an initiative to reserve at least 30 per cent of seats for women.

In their follow-up questions, Committee Experts commended the signing by Malaysia of the Arms Trade Treaty and being the first South Asian country to have done so, and asked when this treaty would be ratified; they also asked about the intentions concerning the development of the national action plan for the implementation of the United Nations Security Council resolution 1325 on women, peace and security.  The Secrecy Act could be an obstacle in the collection of data, including gender-disaggregated data – would it be repealed and replaced with comprehensive freedom of information legislation?

SURIANI AHMAD, Secretary-General, Ministry of Women, Family and Community Development of Malaysia, responded and said that Malaysia had ratified the Optional Protocol to the Convention on the Rights of the Child on children in armed conflict.

Another delegate said that indeed Malaysia had been the first South Asian country to sign the Arms Trade Treaty, and since, multi-stakeholder consultations had been underway on the ratification of this treaty.  As with every international treaty, Malaysia would become a full State party to the Arms Trade Treaty once it was ready to implement all arising obligations.

SURIANI AHMAD, Secretary-General, Ministry of Women, Family and Community Development of Malaysia, said that the amendment to legal aid legislation, effective from 1 December 2017, had introduced a more practical approach to determine a person’s eligibility for legal aid and streamline it to low-income earners, irrespective of race and gender, who were under the Government’s special aid programmes.

Questions from the Experts

In a series of questions concerning harmful stereotypes and violence against women, a Committee Expert recognized the many positive actions taken by Malaysia and expressed hope that those crucial actions for the empowerment of women would be adequately implemented.

There had been sexist remarks by Members of Parliament – why had not those been sanctioned?

An Expert remarked that in many other Muslim countries, a fatwa did not have the power of law, and raised the issue of female genital mutilation, which was not an Islamic tradition, and which this Committee considered a form of violence against women.  What was the situation concerning the dress code and how did it play out in public spaces, institutions and schools?

The Committee was concerned that perpetrators of rape were still allowed to marry their victims – could the delegation comment?  What was the situation concerning shelters for women victims of violence, and was the whipping of Muslim women still allowed?  It had been reported that the number of women victims of violence was on the increase – what was the situation concerning violence against women in Malaysia?

With regard to trafficking in persons, Experts remarked with satisfaction that Malaysia had adopted the anti-trafficking law and plan of action and had put in place an anti-trafficking commission, and that it was a party to the Palermo Protocol and the Association of South East Asian Nations’ Convention against Trafficking.  Despite all this, trafficking of women and girls remained an issue of concern, mainly for sexual and labour exploitation, and there were reports of trafficking in babies for childless couples.  The delegation was asked about progress made and lessons learned, and in particular steps to close the implementation gap on local and federal levels.  What safeguards were available to trafficked women who were often irregular migrants, and were there victim support services available in multiple languages?

There were reports of organized prostitution, which might constitute trafficking in persons; since prostitution was not criminalized, what safeguards were in place to ensure that women and girls were not victims of trafficking and were not forced into prostitution?

Responses by the Delegation

The delegation responded by saying that Malaysia was in the midst of reforming its labour law with the view of guaranteeing 90 days maternity leave to women working in the private sector; following this, Malaysia would address the issue of paternity leave. 

SURIANI AHMAD, Secretary-General, Ministry of Women, Family and Community Development of Malaysia, took up the issue of the dress code and said that schools had their own uniforms; all women in Malaysia had the freedom to choose what they wore.  At the moment, there were seven shelters for victims of violence throughout the country, and there were plans to open more, often in cooperation with non-governmental organizations.

As for the whipping, Sharia courts had the mandate to pronounce the sentence in accordance with the Sharia law, which was then administered in accordance with the Sharia criminal procedures: an offender was examined by a government medical examiner before the execution of the sentence, a whipping rod was to be used with medium force, and if an offender was pregnant, the execution was postponed to two months after the delivery or miscarriage.  The point was to ensure that the sanction was implemented as humanely as possible.

SURIANI AHMAD, Secretary-General, Ministry of Women, Family and Community Development of Malaysia, recognized that the reported number of women victims of violence was indeed on the increase and explained that it was due to greater awareness and the improvement in reporting procedures.

In terms of trafficking in persons, a delegate said that important progress had been made since 2006 in the legislative and institutional arenas.  The Interagency Council was in place and it was comprised of Government agencies, non-governmental organizations and the national human rights institution.  In 2010, the law had been amended to widen the definition of trafficking for labour exploitation, and to criminalize smuggling of migrants.  Recently, shelters for victims of trafficking had been set up.  At the moment, consultations were ongoing with partner non-governmental organizations and with the national human rights institution concerning the widening of the category of protected persons and the provision of services that they required.

With regard to the fatwa, a delegate explained that in Malaysia, it was possible for the Sharia courts to make law, therefore fatwas were considered to be part of the Sharia law.  Constitutional matters were within the purview of the civil court, including to decide on the conflicts between civil and Sharia law.

Female genital mutilation or female circumcision was considered to be a part of the Sunni Islam tradition and should be observed by all Muslims; however, this opinion was not official and binding on all Muslims since the fatwa had not been issued and gazetted by the State Fatwa Committee.  Malaysia was following the provisions of the fatwa which established female circumcision as an obligation for Muslims, therefore the Ministry of Health had developed the guidelines for the implementation of female circumcision.  During their visit to the health centre at the age of 18 months, the perineum of Muslim baby girls was routinely examined and it had been found that 83 to 85 per cent of Muslim baby girls had been circumcised without any complications.  In Malaysia, 93 per cent of Muslim women practiced female circumcision and studies had found that female circumcision in Malaysia was harmless and did not have an impact on the sexual health of women.

Questions from the Experts

A Committee Expert asked about barriers to the greater participation of women in public and political life and the measures taken to support their participation at local and national levels and encourage women to stand as candidates.  Were women given full latitude and liberty to participate in non-governmental organizations active on political issues and did the Constitution fully guarantee women’s right to association?

An Expert recognized the increase in the number of women in the foreign service and noted with regret that the representation of women in senior or decision-making positions remained low.

On nationality, the Experts urged Malaysia to lift all the reservations that limited the right of women to pass their citizenship and asked about steps taken to create equality in citizenship.  What was being done to guarantee that foreign women married to Malaysian men could stay in the country even after leaving their husbands?  How was Malaysia addressing the lack of data and statistics on stateless persons and persons and groups at risk of statelessness?

An Expert stressed that Malaysia was not a theocratic State in which the civil law must prevail over the religious law; if a religious law prevailed then that was the end of democracy.

Responses by the Delegation

Responding, the delegation said that there were no restrictions on the participation of women in non-governmental organizations, in accordance with the law.  Any restrictions to the freedom of expression or association had to be done in accordance with the law.

The delegation explained that children born overseas to a Malaysian mother and a foreign father could be registered as Malaysians, and that the application had to be submitted within a year of their birth.  This provision applied to all children born after 2010; children born prior to 2010 could be registered by application to be submitted by the mother to the office in Malaysia.  Malaysia did not recognize dual citizenship.

Questions from the Experts

Committee Experts commended Malaysia for the achievements in the area of education, including the performance of girls and their educational attainment.  Still, some concerns remained, for example child marriage of girls who married before the age of 18 remained quite high.  How many girl brides were there, how many continued schooling after getting married, and what was the percentage of those who returned to school after a pregnancy?

Sexual and reproductive health education existed in schools but it seemed not to be rights-based.  What measures were in place to encourage girls to take up education in science and technology?  Most teachers were women and yet most headmasters were men – could the delegation explain the lack of progression of women teachers into management and decision-making positions in the education sector?

The delegation was asked to inform the Committee about the measures in place to deal with the growing militarization of schools, whether it was true that bullies could be sent to military or police school, and to explain steps taken to address the disparity between rural and urban schools.

How was Malaysia encouraging men and women to be dual earners and dual carers and to correct the important gender gap?  Concerning the situation of domestic workers, an Expert asked about the plans to guarantee non-discrimination in the workplace regardless of their nationality; measures to protect them from abuse, violence and rights violations in the workplace; and the intentions to extend to migrant domestic workers the same labour rights enjoyed by other workers.

Experts commended Malaysia for the achievements in the field of gender equality, which in the area of health were reflected in the progress on the main health indicators and in the fight against malaria.  The delegation was asked about premarital HIV/AIDS screenings, measures to expand cervical and breast cancers screening, use of contraceptives among adolescents, and how the birth rate among adolescents was calculated.

Responses by the Delegation

Responding to questions raised about child marriage, a delegate said that pregnant girls under the age of 18 were allowed to attend school, but many in fact dropped out.  Various programmes were being put in place to support them in continuing their schooling, including through the standard guidelines to ensure safe and protective environments for those girls.

The delegation explained the progression of sexual and reproductive health education from preschool, and said that it comprised 75 per cent of health themes, 15 per cent healthy eating, and other themes.  The delegation took good note of the need for a rights-based sexual and reproductive health education scheme.

In 2016, women represented 75 per cent of the education workforce, while more than 60 per cent of school leaders at both primary and secondary level were men.  An initiative called Excellent Teacher had been introduced to promote the professional progression of teachers in their areas of expertise, which would encourage more female teachers to hold management positions either as school leaders or experts in their own fields.

Human rights education was not a separate subject but was integrated in the curriculum of history and global citizenship subjects.  One of the initiatives to address the rural-urban disparity in education was the District Transformation Programme which intended to change the function of district offices from administrative hubs to supporting excellence and progress in school.  School improvement coaches had been introduced to support school improvement in lower performing districts.

Guidelines and tips for employers of foreign workers had been developed, while guidelines for the recruitment of domestic workers in source countries were being prepared.  The Employment Act 1955 would be amended and expanded to provide more protection for domestic workers.

SURIANI AHMAD, Secretary-General, Ministry of Women, Family and Community Development of Malaysia, said that there was an engagement with the private sector to increase the participation of women and their representation in decision-making levels.

Most of the primary health clinics – 72 per cent, and 63 per cent of the health care providers, were located in rural areas of Malaysia.  Various incentives had been offered to medical doctors working in rural areas, such as fast-track specialization options.  Premarital HIV/AIDS screening had started in 2001 as an initiative for Muslim couples, and since 2007, it was available for everyone.

Questions from the Experts

Many Muslims in Malaysia believed that inheritance laws were divine and could not be changed, said an Expert, noting that in modern times that did not hold true.  And yet, the law had not been changed to respond to the new reality and to ensure that justice remained at the root of Islam.  What was being done to allow women to inherit as beneficiaries where they were so named, to ensure that inheritance did not discriminate on the basis of gender, and to grant Muslims the same inheritance rights as non-Muslims?

The delegation was asked about the definition and threshold of poverty in Malaysia, the current incidence rate, and the percentage of women among the poor.  It was also asked about the access of women to land and the mechanisms to increase the representation of women in decision-making in rural areas.

What measures were in place to ensure that refugee and asylum seeking women, and lesbian, trans and bisexual women were protected from violence and discrimination?

Responses by the Delegation

A delegate stressed the difference between the right of women to own property and their right to inherit, and said that the law on inheritance was a divine law.  Under Sharia, men were responsible for the maintenance of their wives and that was why men inherited more.

The poverty line in Malaysia was about $200 per month.

SURIANI AHMAD, Secretary-General, Ministry of Women, Family and Community Development of Malaysia, said that there was no difference in the treatment of refugee and asylum seeking women, they were treated as everyone else in the country.  Malaysia had a very strong relationship with the United Nations Refugee Agency (UNHCR) and discussions were ongoing concerning the ratification of the 1951 Refugee Convention.

A delegate said that although Malaysia was not a party to the 1951 Refugee Convention, it had been hosting a UNHCR office for over 45 years and had been generously supporting refugees for decades, starting with the boat people, refugees from Ache, Bosnian refugees, and others.  Malaysia observed the principle of non-refoulement, which was recognized in several laws, including extradition and criminal procedure laws.

Questions from the Experts

A Committee Expert remarked that, for the past 12 years, rather than progressing in the application of the Sharia law, Malaysia had regressed in the matters concerned by the application of this law, namely in marriage, inheritance, and family.  There was no commitment to a progressive legal reform that the Committee had called for in 2006, which was the only way forward for a country where 40 per cent of the population was not Muslim.  Having a large group of women, Muslim women, living under more stringent laws than other women in the country would create tension and serious problems, an Expert said and stressed that justice and equality were basic principles of Islam.

What was being done to enforce the limitation on child marriage and what statistical data was available on the application of the rule since 2006?

Experts stressed that the problem was not the Sharia law but some interpretations of the Sharia law and urged Malaysia to study the experiences in this regard of other countries of the Organization of Islamic Cooperation.  Malaysia had to show political will to uphold the rights of women, protecting them from discrimination, ensuring gender equality, and living up to its international obligations.

Responses by the Delegation

A delegate said that Malaysia practiced the dual legal system which was embedded in the Federal Constitution, and said that there were a lot of progressive efforts by the State to improve the legislation, and to ensure that the implementation of the family law did not cause injustice to women.  One such measure was the setting up of special working committees to study and review laws pertaining to Islamic family legislation, and the Sharia court civil and criminal jurisprudence.

Concluding Remarks

SURIANI AHMAD, Secretary-General, Ministry of Women, Family and Community Development of Malaysia, said that Malaysia had achieved progress in the implementation of the Convention, as outlined in the opening statement, and said that additional information and statistics would be sent in a written form.
DALIA LEINARTE, Committee Chairperson, commended Malaysia for its efforts and encouraged it to address various recommendations which the Committee would issue with the purpose of the more comprehensive implementation of the Convention throughout the State party.
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