The recent Legislating Equality: Cedaw and Beyond symposium on legislative reform for women’s human rights on 28-29 September, organised by the Bar Council’s women’s rights committee, the Malaysian human rights commission Suhakam and the All-Party Parliamentary Group Malaysia on Gender Equality underscored that the promise of equality under the Federal Constitution can only be fulfilled through concrete steps, including statutory reforms.
The gaps to be addressed are well known, the international guidance is clear, and what is urgently needed now is decisive action.
The Malaysian Bar reiterates that the government’s remaining reservations to Articles 9(2) and 16(1)(a), (c), (f) and (g) of the Convention on the Elimination of All Forms of Discrimination against Women (Cedaw) and reservations to Articles 2, 7, 14, 28(1)(a) and 37 of the Convention on the Rights of the Child (CRC) must be withdrawn forthwith, and the Optional Protocol to Cedaw ratified.
These reservations are contrary to the object and purpose of Cedaw, which violates Article 19(c) of the Vienna Convention on the Law of Treaties.
These reservations are also inconsistent with Article 8(2) of the Federal Constitution, which was amended in 2001 to prohibit discrimination on the ground of gender, expressly.
Articles 8(1) and 8(2) of the Constitution read as follows:
(1) All persons are equal before the law and entitled to the equal protection of the law.
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(2) Except as expressly authorized 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.
Malaysia must shift away from outdated, needs-based welfare approaches toward a rights-based framework that treats gender equality as an enforceable legal entitlement.
The following areas, among others, should be prioritised:
Women in Parliament
Women hold only 13.5% of House of Representatives seats and 18% of the Senate.
The government should adopt statutory quotas to achieve equal political participation.
Women make up about 47.6% of Malaysia’s population and 50.2% of registered voters. A parliament that legislates for mothers, daughters, workers, business owners, carers and professionals cannot be considered representative when women hold only 30 of its 222 seats.
The Malaysian Bar welcomes the parliamentary Special Select Committee on Women, Children and Community Development’s recent proposal of a gender parity in political representation bill to require political parties to field at least 30% women candidates in general and state elections.
This is consistent with Article 4(1) of Cedaw, which expressly permits temporary special measures to accelerate de facto equality.
Institutionalising a 30% women candidacy requirement is an important first step towards a truly representative democracy.
Child marriage
Malaysia currently lacks a uniform minimum age. Parliament must enact an absolute minimum age of 18 for all marriages without exceptions, which is vital to protecting girls’ rights to education and all protected freedoms and rights under Cedaw [CEDAW/C/MYS/CO/6, supra note 3, paragraphs 56-57]and the CRC.
Female genital mutilation
Female genital mutilation or cutting is a harmful practice used to exert control over female bodies [paragraphs 24-25] and cannot be justified on any grounds.
It is a form of discrimination against women and girls, and violates the obligations to abolish discriminatory customs and practices and to eliminate practices based on stereotyped gender roles (Articles 2(f) and 5(a) of Cedaw). It also undermines the right to health (Article 12 of Cedaw).
As applied to children, it directly violates protections against cruel, inhuman or degrading treatment (Article 37 of the CRC). Parliament must prohibit and criminalise all forms of female genital mutilation or cutting.
Statelessness
While proposed citizenship amendments permitting Malaysian mothers to pass citizenship to foreign-born children are a positive step, the lack of retroactivity leaves existing children exposed to statelessness, violating Article 7 of the CRC. To date, the amendment has also not yet come into effect.
Female refugees and asylum seekers
Refugee and asylum-seeking women and girls face severe, intersecting discrimination and administrative marginalisation [CEDAW/C/MYS/CO/6, supra note 3, paragraph 46].
Non-refoulement prohibits returning anyone to a place where their life, freedom or safety is threatened. It is a rule of customary international law and is increasingly recognised as jus cogens, a fundamental norm from which no state may depart.
This should be made explicit in the relevant legislation. It will better protect refugees and asylum seekers, and clearly grant legal status, extend formal work rights, the right to education and the right to healthcare [paragraphs 46–47].
Anti-discrimination against women bill
In development since 2019, the anti-discrimination against women bill must be accelerated to complement Article 8(2) of the Federal Constitution by statutorily prohibiting direct, indirect and intersecting forms of discrimination in both public and private spheres, on any grounds whatsoever [CEDAW/C/MYS/CO/6, supra note 3, paragraphs 12-13].
Discrimination is compounded for women and girls with disabilities, who face intersecting barriers to justice, education, employment and healthcare, and this too must be explicitly addressed [paragraphs 48-49].
Conclusion
The Malaysian Bar urges the government to immediately withdraw all remaining reservations to Cedaw and the CRC and to ratify the Cedaw Optional Protocol.
True constitutional equality under Article 8(2) of the Federal Constitution cannot remain a theoretical promise. It requires full legislative effect through statutory protection and enforceable rights.
The government must act now to fulfil its legal obligations to all women and girls in Malaysia. Women make up a majority of the electorate, and their voices should not be ignored. Any government that fails to follow through risks rejection at the polls. – Bar
Anand Raj is the president of the Malaysian Bar.
The views expressed in Aliran's media statements and the NGO statements we have endorsed reflect Aliran's official stand. Views and opinions expressed in other pieces published here do not necessarily reflect Aliran's official position.
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