Why human
rights for women?
Human Beings
are born equal in dignity and rights. These are moral claims which are
inalienable and inherent with in all human individuals by virtue of their
humanity alone.. They are fundamental, necessary for individuals to
survive, and to realize their potentials to the fullest. These claims are
articulated and formulated in what we call today human rights and these
rights have been translated into legal rights both national and
international
Why was
it necessary to claim the rights of women within the human rights
framework?
From the
very start of the evolution of the concept of rights as adopted in the
Universal Declaration of Human Rights women were invisible "Tradition,
prejudice, social, economic and political interests have combined to
exclude women from prevailing definitions of general human rights and to
relegate women to secondary and or special interests status within human
rights considerations".1
Furthermore,
mainstream human rights as interpreted exclude and do not address women's
specific gendered experiences because of the artificial division between "
public" and "private" spheres where the public sphere is subject to
regulation and scrutiny but the private sphere where women are subject to
violations (domestic violence, rape, confinement ) are exempted if not
hidden in the name of family, religion and culture.
The failure
of many nations to confer women the human dignity and respect they
deserve, simply as human beings necessitates the recognition that women by
virtue of being human beings should be accorded her human rights . It will
be very difficult to argue that we are not human . Women had to start
claiming rights that there are inherently theirs but were not articulated
in law, policy and practice. In short, we are claiming what is rightfully
ours.
It must
also be emphasized that a human rights approach is an effective
tool:
- "Human
rights can be a powerful language as they clearly pinpoint state
accountability. It can be a potent tool for advocacy that effectively
changes the dynamics of women's engagement with the state, from a
position of needs (subject to the whims of the powers- that -be) to a
position of strength premised on rights that women are entitled to and
are guaranteed in the first place.
- Second,
they constitute international standards against which state actions or
inaction can be challenged whereby specific actions can be demanded from
the state.
- Third,
the evolving concepts of human rights, vis-à-vis an emerging women's
rights advocacy makes room for the infusion of women's perspectives into
human rights discourse. This allows women in the process to clarify
among themselves what their human rights should mean and should be. In
this regard, adopting a rights approach in women's advocacy connotes an
organizing or mobility element to it.
- Fourth,
the idea of women being holders of rights by itself can be very
empowering to many women.2
At the global level, recent years have seen significant
progress in the rights of women being mainstreamed and codified into human
rights language and treaties:
- In June
1993, the Vienna World Conference on Human Rights the international
community openly acknowledged that the body of international law and
mechanisms established to promote and protect human rights has not
properly taken into account the concerns of over half the world's
population. States formally recognized the human rights of women as "an
inalienable integral and indivisible part of human rights/" and expanded
the international human rights agenda to include gender specific
violations.
- In
December 1993, the United Nations General Assembly adopted the
Declaration on the Elimination of Violence against Women. This
Declaration categorizes gender-based violence against women as an issue
of human rights generally and one of sex discrimination and inequality
in particular.
- In
September 1994, the international community underscored the importance
of the right to health, including reproductive choice for women, at the
International Conference on Population and Development in Cairo.
- In
September 1995, the Beijing Declaration and Platform for Action, adopted
at the United Nations Fourth World Conference on Women, confirmed
women's rights as human rights and the human rights of women and the
girl-child as an inalienable, integral and indivisible part of all human
rights and fundamental freedoms." 3
MALAYSIA
In Malaysia,
August 2001, will be marked in the herstory of the women's rights movement
in Malaysia as the Federal Constitution was amended to prohibit
discrimination on the basis of gender.
"Except as
expressly authorized by this Constitution, there shall be no
discrimination against citizens on the ground only of religion, race,
descent, 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 …."
Although the
house voted in one voice on gender equality, and this constitutional
recognition can be a powerful instrument, it will remain in danger of
being a mere token unless it is accompanied by a comprehensive review of
law, policy, practice and implementation to ensure that women will benefit
equally.
The women's
groups and SUHAKAM had proposed that the amendment does not limit itself
to the word "gender" alone, but to include a definition of discrimination
as provided for in CEDAW:4
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".
Simply put,
even though a law was not intended to be discriminatory, if the effect of
its implementation denies equality between men and women, the law has
discriminated against women.
To give you
an example, let us look at an amendment that took place in October 1999
when Parliament amended the Guardianship of Infants Act, to provide equal
guardianship rights. However the amended legislation only addressed the
rights a sector of female population by denying equal guardianship rights
to Muslim women. This was in principle discriminatory to Muslim women. To
correct this discrimination, 10 months later the Cabinet issued an
administrative directive to allow all mothers to sign documents related to
their children ( passports, school transfers) ensuring that all Malaysian
women irrespective of race and religion are conferred equal rights. But it
does not stop here, as it is the Immigration and Education officers at the
ground level who have to put this directive into place, so any attempt on
the part of an officer who questions a woman why she is signing an
application for her child's passport is in itself discriminatory. Thus, it
is incumbent upon the relevant ministries and its departments to make sure
that every front desk officer is informed that mothers are guardians. One
simple corrective measure is to change forms that read "father/legal
guardian" to just "guardian".
Thus
although the law formalises equality, the practical realization of these
rights were only available to women upon corrective measures. These
principles of substantive equality and corrective measures are principles
outlined in CEDAW.
The
challenge that lies ahead for both government and civil society is to
truly reflect the spirit of Constitution as guaranteed in the amended
Constitution, the right to equality and non discrimination for Malaysian
women of all faiths.
And I make
this point deliberately as a doubt has been cast since Article 8 (5)a of
the Constitution states that the equality provision does not invalidate
any provision regulating personal law. So, is Syariah above the recent
Constitutional amendment?. It is the opinion of women's groups that any
discrimination that exists in Syariah law has to be amended based on the
indisputable belief that Islam upholds the principles of equality and
justice for all. It will be untenable and unacceptable that there will be
different standards for Muslim women.
I would now
like to move on to to address the following inequalities and
discrimination that Malaysian women still face:
Citizenship
Malaysian
women who are married to non-Malaysian men and give birth to children
outside of Malaysia cannot confer citizenship to their children, these
children are considered foreigners, into Malaysia. When a child is born
outside Malaysia, the child is not conferred citizenship by operation of
the law unless the father is a Malaysian citizen.5 A child whose
mother is a Malaysian citizen does not share the same privilege. The
father must be a Malaysian citizen in order for the child to be conferred
citizenship in Malaysia.
Immigration
Under
Section 15 (1) the Federal Constitution foreign men who marry Malaysian
women cannot receive permanent residence ( P) status unlike foreign women
married to Malaysian men., although some reprieve has been given that
foreign husbands who are professionals wall be given work permits, it
still amounts to unequal opportunities for Malaysian women in comparison
to Malaysian men.
Violence Against Women
In 2000
alone, there were 1217 reported cases of rape and 3,468 cases of domestic
violence. Everyday women and girls are subjected physical, sexual and
psychological abuse, that cut across race and class. Laws relating to
rape, domestic violence and sexual harassment are still inadequate.
Rights
of Muslim Women
Muslim women
continue to face hardships in cases of divorce, polygamy, custody,
maintenance, and division of matrimonial property. There are shortcomings
in Syariah law and its implementation that contributes to the abuse and
injustice faced by Muslim women. For instance, while a man can easily get
divorce, the court is reluctant to grant a divorce without the agreement
of her husband.
These concrete examples of unequal treatment are
not a mere flaw of the law but it reflects a deeper value system by
society. Deeply entrenched attitudes and practices perpetuate inequality
and discrimination against women.
Conclusion
To continue
to work for women human rights several challenges lie ahead.
Firstly, developing a culture of rights. A culture which respects
and appreciates women's rights has to include democratic space and freedom
of expression. It is disconcerting but not wholly surprising that human
rights are still perceived as a western value. Today, as we celebrate
Human Rights Day in Malaysia, we are acknowledging the fact that this is
not a western value, but a universal value. But whilst we sit here in the
comfort of an air-conditioned hall, there are many Malaysians whose human
rights have been violated. I refer specifically to the political activists
who are still incarcerated under the draconian law of the Internal
Security Act, and I would like to reiterate the call for abolishment of
the Internal Security Act. We need to work harder to make the state and
community understand and accept that human rights are universal,
inalienable and indivisible. There should be no hierarchy of rights and it
is not accorded to citizens because of goodwill or at the pleasure of the
state or an individual.
The role of
SUHAKAM is crucial here as this independent institution is charged with
the responsibility of setting the standards by which civil society will
adhere to. SUHAKAM's first report proposing that article 8, be amended to
prohibit discrimination on the basis of sex was an added important voice
in the lobby for this reform. SUHAKAM's 66-page report early last month
which found that the police had violated human rights at the aborted
demonstration on the Kesas highway last November an important document
that expects professional conduct by government agencies.
Secondly,
confronting deeply entrenched attitudes that uphold male privilege at the
expense of women's rights cannot be just the work of women alone, men must
be encouraged to participate fully in all actions towards equality and the
elimination discrimination against girls and women.
On a final
note let us work together to make every day a human rights day for women .
6
September 2001
Women's Aid Organisation
1. Bunch,C. and S. Frost, Women's Human Rights: An Introduction, Center for Women's Global
Leadership.
2. IWRAW Asia Pacific, Training Materials, 2000.
3. J.
Connors, "General Human Rights Instruments And Their Relevance To Women",
A. Brynes, Advancing The Human Rights Of Women, Commonwealth Secretariat,
1997.
4. Convention on the Elimination of All forms of Discrimination
Against Women.
5. Federal Constitution of Malaysia, 2nd Schedule,
Part II, 1(b).
Women's Aid
Organisation
Pertubuhan Pertolongan Wanita
P.O. Box 493 Jalan
Sultan
46760 Petaling Jaya
Selangor Darul Ehsan
Malaysia.
Tel. +60 3
7956 3488
Fax. +60 3 7956 3237
Email:
wao@po.jaring.my
