LAST week, I had the extraordinary privilege of speaking at the EmpowerHER Symposium on International Women’s Day.
The symposium offered a beautifully nuanced exploration of women’s empowerment. There was a diverse range of speakers, each bringing their unique expertise and perspective to the table.
This multifaceted approach to empowerment resonated deeply with me, and It highlighted the interconnectedness of various aspects of women’s lives.
While other speakers offered valuable insights on beauty and health, a crucial yet often diminished aspect of empowerment, I felt a deep responsibility to delve into the legal framework that shapes Malaysian women’s lives.
The conversation on women empowerment is an essential one, not just once a year on International Women’s Day, but every day.
Despite Malaysia’s impressive female literacy rate and a growing participation in the workforce, challenges remain. To understand the current landscape and future possibilities, it’s nonetheless important for us to examine Malaysia’s legal journey concerning women’s rights.
Malaysia’s accession to the Convention on the Elimination of All Forms of Discrimination Against Women (CEDAW) in 1995 marked a significant turning point for women’s rights in the country.
This international commitment served as a catalyst that propelled Malaysia forward on the path towards gender equality. It ushered in a wave of legal reforms aimed at dismantling discriminatory laws and practices against women, both in public and private spheres.
Prior to this, legal protections for women were scarce, with limited recourse beyond the Penal Code, and Article 8(1) of the Federal Constitution which guarantees equality before the law.
However, the introduction of Article 8(2) in 2001, explicitly prohibiting gender discrimination, signalled a monumental shift in legislative attitudes.
Since then, Malaysia has moved from a landscape with limited legal protections for women to one that’s actively dismantling discriminatory practices. However, let’s not mistake progress for completion. While strides have been taken, achieving absolute protection for Malaysian women remains an ongoing endeavour.
What we have achieved so far
1. Anti-Sexual Harassment Act 2022 (Act 840)
This landmark legislation, nearly two decades in the making, finally became reality with the combined efforts of MPs from both sides of the aisle. Previously, women had to navigate a complex web of laws, including the Penal Code, Employment Act, and Communications & Multimedia Act, often yielding unsatisfactory results due to weak provisions and lengthy court proceedings.
Under the Act, “sexual harassment” is properly defined for the first time in Malaysia law.
It is defined as “any unwanted conduct of a sexual nature, in any form, whether verbal, non-verbal, visual, gestural or physical, directed at a person which is reasonably offensive or humiliating or is a threat to his well-being”.
It establishes a dedicated Tribunal to address complaints of sexual harassment, empowering women to seek compensation and redress within a two-month timeframe.
2. Amendment to Employment Act 1955 (Act 265)
The 2022 amendments introduced a new provision (Section 69F) specifically addressing employment discrimination. This gives power to the Labour Director-General to make direct inquiries into any employee-employer dispute concerning discrimination in employment, and to make decisions and orders thereof, with the aim to promote better protection for workers, particularly women, in line with international labour standards and CEDAW.
Prior to the amendment, Malaysian women facing discrimination in the workplace had limited legal recourse. Existing laws like the Employment Act offered some protection, but they often lacked specific provisions addressing gender discrimination. The burden of proof also often rested heavily on the employee experiencing discrimination.
3. Anti-Stalking Laws in the Penal Code (Act 574)
Stalking, a pervasive and often terrifying experience, lacked a clear definition in the Penal Code. This meant that seemingly innocuous actions, like repeated compliments or unwanted attention, couldn’t be addressed by law enforcement.
Existing sections of the Penal Code, such as those related to physical contact (Section 354 & 355) or lewd comments (Section 509), fell short of delivering women from prolonged fear and distress caused by stalking. The lack of a legal definition had left many women vulnerable to repeated harassment with few legal options available.
Thankfully, a crucial step forward was taken on March 29, 2023, with the amendment of the Penal Code.
The introduction of Section 507A now defines stalking as “the repeated act of harassment, which is intended or is likely to cause distress, fear, or alarm to any person for their safety.”
This broader definition encompasses a wider range of behaviours, both physical and online, that can cause significant emotional distress to the victim.
4. Abolition of Section 498 of the Penal Code
Not all laws are made by Parliament. Sometimes, we see caselaw establish new precedents and strike down unfair or unconstitutional laws. Under Yang Amat Arif Tun Tengku Maimun Tuan Mat, our very first woman Chief Justice, it is no coincidence that the current lineup of the Federal Court is said by some to be among the most progressive in Malaysia’s history.
This progressive stance was evident in a landmark ruling on Dec 15, 2023.
The Federal Court struck down Section 498 of the Penal Code as unconstitutional. This section previously penalised any man who entices away a woman that he knows is already married to another man.
However, Chief Justice Tun Tengku Maimun ruled that Section 498 violated the Federal Constitution’s Article 8(2) guaranteeing equality before the law. The critical flaw was that only husbands could utilise this provision, discriminating against women who couldn’t seek legal recourse if their husbands were enticed by another woman.
Celebrating progress is crucial, but the fight for women’s rights in Malaysia is far from over. Although Malaysia has made significant strides in recent years towards women’s rights, there are still critical gaps in the legal framework which leave many women vulnerable to abuse and limit the ability to live safe and fulfilling lives.
Our journey toward legal advancements for women’s rights hasn’t always been linear.
Progress isn’t always linear
A recent example highlights this challenge. Recently, Prime Minister Datuk Seri Anwar Ibrahim announced plans to table legal amendments this month that would replace the term “whose father” with “parents or at least one of the parents” in Parts I and II of the Federal Constitution’s Second Schedule, slated for presentation in Parliament this month.
However, this optimism quickly turns to dismay when we consider the fact that the proposed amendment, while empowering women, was bundled with potentially regressive measures that could jeopardise citizenship rights of marginalised members of society, including foundlings, orphans, children born out of wedlock, and adopted children.
Among the proposed amendments are revision to the Second Schedule, Part II Section 1(e), which currently grants citizenship by operation of law to every stateless person born in Malaysia, and Second Schedule, Part III, Section 19(b), which would affect abandoned children.
Under the proposed changes, granting citizenship would become solely at the discretion of the Home Ministry, removing the current automatic pathway for those meeting the criteria outlined in the Second Schedule.
While I appreciate the positive strides made by this amendment package in advancing women’s rights, no woman could possibly endorse it in good conscience if it comes at the expense of further marginalising other vulnerable groups. We urge the government to consider decoupling the proposed amendments. Separating the women’s rights amendments would allow for their swift implementation while allowing for further discussion and refinement of any provisions that might negatively impact marginalised communities.
As we approach the 30th anniversary of CEDAW next year, it’s crucial to reflect on our achievements and identify the remaining legal gaps impacting women, both in their roles as mothers, and as professionals.
These vital reforms are deeply personal to me. As a woman in both politics and law, I’m fiercely committed to advocating and championing them. It’s about empowering not just women, but every Malaysian bar none to thrive and contribute equally in our society.
Let’s keep the conversation going and work together to build a future where equality for all is a reality.
CHAN QUIN ER
Lawyer and MCA central committee member
