BRIEFING NOTES TO THE MINISTRY OF WOMEN AND FAMILY DEVELOPMENT ON THE AMMENDMENT OF ARTICLE 8(2)

Gender Equality and the Federal Constitution

The Women NGOs (Women's Aid Organisation (WAO), International Women's Rights Action Watch (IWRAW Asia Pacific), All Women's Action Society (AWAM), Women's Development Collective (WDC), Sisters In Islam (SIS) and Women's Crisis Centre (WCC) Penang) prepared a paper to the Ministry of Women and Family Development to be used as briefing notes in its efforts to ammend Article 8(2) of the Federal Constitution to include the category of "sex" or "gender" as a ground of discrimination.

PROPOSED AMENDMENTS TO THE CONSTITUTION

(Proposed amendments are in bold and italics).

1. To amend Article 8(2) to include the words "sex" and "gender" viz:

"Except as expressly authorised by this Constitution, there shall be no discrimination against citizens on the ground only of religion, race, descent, sex, gender or place of birth, 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 ---"

Commentary

• The word sex and gender needs to be added into this paragraph in order to recognise that sex and gender should not be grounds for discrimination. If it is not amended, it contradicts the Constitution Article 8 (1) which provides that all persons are equal before the law.

• Sex is biologically determined and refers to the physical composition of males and females. Gender refers to the socially constructed notion of man and woman (e.g. men as strong and women as weak; men as leaders and women as followers; men as breadwinner and women as homemakers). Both terms have to be included into the Constitution because women can be discriminated against on the basis of their sex AND gender. Put differently, because discrimination is about a different power relationship between men and women and not just based on the physical make up of men and women (i.e. sex), it is necessary to include gender together with sex in this amendment. For example, in MAS, air hostesses after 35 years of age are made to work as ground hostesses because they are no longer attractive as air hostesses. By using the word gender, it also helps to situate and understand the relationship between men and women and the fact that their relationship is based on different treatment which has resulted in women being disadvantaged relative to men.

• Gender is now an internationally accepted concept and thus should be included in this amendment.

2. To add in the following clauses:

(Additional Clause)

Article 8(2) (a)
No person, organization or enterprise may unfairly discriminate directly or indirectly against anyone on one or more grounds in terms of subsection 8(2). National legislation must be enacted to prevent or prohibit unfair discrimination.

Commentary

• Currently article 8. 2 of the constitutional provision for equality addresses only the actions of the state via laws and policies. Much of the discrimination against women takes place through the actions of private actors (e.g. private enterprises, organizations or individuals). In the context of privatisation, we need to ensure that the private sector in the fields of education, employment, health etc. also are bound by the constitutional guarantee of equality.

For example, the South African Constitution makes provisions for this.
" No person may unfairly discriminate directly or indirectly against anyone on one or more grounds in terms of subsection 3"

(Note: sub section 3 provides the grounds that prohibit discrimination.)

• This proposed amendment is in conformity with article 2(e) of the Convention on the Elimination of All Forms of Discrimination against Women (the CEDAW Convention) to which Malaysia became a party in 1995. Article 2 (e) states that the states parties to this Convention have an obligation not only to refrain from discriminating against women but also to protect women's right to equality by regulating the actions of non state actors. Article 2 (e) of the CEDAW Convention reads, "To take all appropriate measures to eliminate discrimination against women by any person, organization or enterprise."

• Eliminating discrimination against women is an obligation of the state under the CEDAW Convention. All sectors including the private sector needs to be regulated so that there will be compliance with the requirements of the Convention.

• National legislation must be enacted to prevent or prohibit unfair discrimination. This proposal is also in conformity with article 2 (b) of the CEDAW Convention, which reads, "To adopt appropriate legislative and other measures, including sanctions where appropriate, prohibiting discrimination against women."

(Additional clause)

Article 8(2) (b)
Discrimination is defined as "any distinction, exclusion or restriction made, which has the intention or effect of nullifying or impairing the recognition, enjoyment and exercise of all rights by all persons in the social, cultural, political and economic spheres".

Commentary

• Including sex as prohibited grounds for discrimination, while essential, is not enough. The constitutional amendment must also include a definition of discrimination as defined in article 1 of the CEDAW Convention which states that any distinction, exclusion or restriction made on the basis of sex which has "the intention or effect" of "nullifying or impairing" the "recognition, enjoyment and exercise" by women, of all rights in the social, cultural, political and economic spheres is discrimination. This definition is prescribed in article 1 of the CEDAW Convention. This definition embodies the entire spirit of the CEDAW Convention and is the framework for the review by the CEDAW Committee when it assess the compliance of the states parties with their obligation under this treaty.

• Most constitutions provide guarantees for prohibiting discrimination on the basis of sex. But this has not worked to women's advantage. This is because discrimination on the basis of sex can be very narrowly defined as differential treatment given to two sets of people who are similarly situated. So when we have two sets of people with different needs, (not similarly situated) and if one of them is disadvantaged by what may be a neutral rule that does not disadvantage the other, then it is not considered to be discrimination. According to this reasoning, it can be argued that denying maternity benefits to women is not discrimination as men do not get maternity leave. Again neutral policies or laws will not be seen as discrimination even if these laws deny women the exercise of rights or access to opportunity because women's inability to access the opportunity because of inequality they experience, as a result of past and current discrimination, is seen as a weakness of the person who is disadvantaged. For example, if credit facilities are offered to women and men on the same conditions (neutral rule) such as that collateral needs to be provided, then women may not be able to access the credit, as the laws of inheritance or social practice may prevent them from owning property that they can offer as collateral. The definition of discrimination given in the CEDAW Convention however implies that applying a neutral rule for women and men will constitute discrimination if the result is that women do not enjoy the intended benefit. In other words, discrimination will occur when an apparently neutral condition or requirement is imposed that has a discriminatory effect on women, although discrimination was not intended. Therefore under certain circumstances, (when the playing field is not even) there has to be a different rule for women to access credit. Non discrimination should not mean same treatment but the enjoyment and exercise of equal rights.

• SUHAKAM has also made this recommendation.

(Additional clause)

Article 8(2) (c)
Nothing in this article shall prevent the State from regulating and making any special provision for the acceleration of women's equality which shall be binding on any public authority, person, organization or enterprise.

Commentary

• Prohibition of discrimination is not enough as the state has to respect, protect and fulfill rights. This proposed amendment will enable the fulfillment of rights. Women as compared to men, face many obstacles sanctioned by culture, religious practice, by entrenched male interests in key institutions such as political parties, trade unions, religious institutions, the courts, etc. There is a need to put in place enabling conditions or preferential rules to benefit women, even when discrimination has been prohibited, and thus facilitate their access to opportunities and accelerate de facto equality.

• Variations of historic or past discrimination requires the concept of corrective measures to overcome the effect of past discrimination that leaves women handicapped vis a vis the men. For example, if a development initiative is offered to women on the same footing as the men, according to the principle of equal rights or equal opportunity, it might still turn out that men benefit more than women, because men have more experience, confidence or simply because the environment is male dominated and is more conducive to male participation. This is the effect of past discrimination. The constitutional amendment must also include provisions for positive action (through law or other measures) in favour of women (or other disadvantaged groups) This will pave the way for measures through which affirmative action and women centred development policy and budgeting measures can be legitimised to ensure de facto equality for women. This has been done in other countries such as India and South Africa. . The private sector too should be regulated in this way.

• The CEDAW Convention requires such positive actions under articles 3 and 4.

3. To amend Article 15: Citizenship by registration (wives and children of citizens)

To insert:

"(1) Subject to Article 8, any married person whose spouse is a citizen is entitled, upon making application to the Federal Government, to be registered as a citizen if the marriage was subsisting and the spouse a citizen at the beginning of October 1962, or if the person satisfies the Federal Government ¾
a. that the person has resided in the Federation throughout the two years preceding the date of the application and intends to do so permanently; and
b. that the person is of good character."

(3) Subject to Article 18, a person under the age of twenty¾one years who was born before the beginning of October 1962, and whose spouse is (or was at his/her death) ….

(5) The reference in Clause (1) to a married person is a reference to a spouse whose marriage has been registered ….

Provided that this Clause shall not apply where the spouse applies to be registered as a citizen….

Second Schedule

Part II Article 14 (1) (b)
Citizenship By Operation Of Law Of Persons Born On Or After Malaysia Day

1(b) every person born outside the Federation whose parents one at least is at the time of the birth…..

1(c) every person born outside the Federation whose parents one at least is at the time of the birth…..

Commentary

• If amendments are made to Article 8 (2), then there has to be a similar effort made to amend Article 15 and its sub¾sections and also Second Schedule ¾ Part II Article 14. Otherwise, the unammended Articles will be a stark contradiction to the spirit of ending discrimination of all forms against men and women, with the amendment of Article 8(2).

• This will also enable the reform of the nationality laws of Malaysia and consequently remove the lifting of the reservation to article 9 of the CEDAW Convention, which Malaysia made because of the existing discrimination in municipal legislation. Furthermore, Malaysia is also a party to the Convention on the Nationality of Married Women. The existing provisions under article 15 of the Constitution violates this Convention as well as the spirit and intent of the CEDAW Convention.

• In fact, we should look carefully into the Constitution to see if there is any other section that contradicts the spirit of this amendment to Article 8(2) and amend them appropriately. Of course, this will also extend to all other laws in Malaysia (not only the Constitution).

4. Overarching rationale

• MALAYSIA IS PLANNING TO PRESENT ITS CEDAW REPORT TO THE UN SHORTLY. IT WILL THEREAFTER BE REVIEWED BY THE CEDAW COMMITTEE OF EXPERTS TO ASSESS ITS COMPLIANCE WITH ITS OBLIGATIONS UNDER THIS TREATY. THE ABOVE AMENDMENTS WILL TESTIFY THE GOOD INTENTIONS OF MALAYSIA TO TAKE ITS COMMITMENTS UNDER INTERNATIONAL LAW SERIOUSLY. ONE OF THE OBLIGATIONS OF THE STATE ON RATIFYING/ ACCEDING TO A HUMAN RIGHTS TREATY IS TO REVIEW ALL EXISTING LAWS AND AMEND THEM IF THEY ARE DISCRIMINATORY AND TO INCORPORATE THE PRINCIPLES OF THE TREATY INTO MUNICIPAL LAWS. (Article 2 (f))

Prepared by:

Women's Aid Organisation (WAO)
International Women's Rights Action Watch (IWRAW Asia Pacific)
All Women's Action Society (AWAM)
Women's Development Collective (WDC)
Sisters In Islam (SIS)
Women's Crisis Centre (WCC) Penang

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