Happy International Women's Day! It is the time of the year where the world celebrates the women and men who tirelessly fought, and continue to fight, for gender equality, female suffrage (right to vote) and various labour rights; and against discrimination towards women.
We have come a long way, legally and culturally, from the days where girls were denied education, and women were merely their husbands' chattel. Yet, more work has to be done to ensure gender equality in Malaysia, starting with these notable issues that are still plaguing Malaysian women.
Discrimination is OK (in the private sector)
Yes, Article 8 of the Constitution provides that all persons are equal before the law and entitled to the equal protection of the law.
However, the judicial attitude towards Article 8 is that it does not require that all persons, in all circumstances and everywhere, must be treated alike. All that is required is that those in like circumstances should be treated alike. A person in one class should be treated on par with another person in the same class. This is known as rational classification.
In practice, Article 8 applies exclusively to the public sector; and remains obsolete to individuals in the private sector. A case aptly elucidating this is Beatrice a/p At Fernandez v Sistem Penerbangan Malaysia, where the employment of a flight stewardess was terminated because of her pregnancy — a situation that went against a collective agreement requiring her resignation in such circumstances.
The court held that constitutional law, which deals with the contravention of individual rights by the Legislature or the Executive or its agencies, does not extend its substantive or procedural provisions to infringements of an individual’s legal rights by another individual.
How can we offset this constitutional setback?
The answer lies in being a Rakyat who does not tolerate discrimination. To turn away from businesses that condone discrimination and encourage arbitrary affirmative action policies — whether based on government directives, or on own initiative.
Milton Freedman posited that in a competitive free market, any party that discriminates on the basis of gender, race, religion or any other attribute unrelated to worker performance imposes a cost upon itself, and thus would not benefit and be overtaken by parties that do not discriminate. The logical premise is that competitors who are not limited by these restrictions of gender, race etc. would have higher profits and eventually drive the discriminator out of business.
Citizenship
Our Constitution is discriminatory towards women. Article 14(1)(b) of the Federal Constitution allows only men — and NOT women, to confer citizenship on their overseas-born children by "operation of law".
This indicates that the drafters of our Constitution intended the word "father" in Article 14(1)(b) and its related provisions in the Second Schedule to exclude “mother". Justice Nantha Balan in his dissenting opinion at the Court of Appeal case of Mahisha Sulaiha Abdul Majeed v Ketua Pengarah Pendaftaran found that interpreting it as such implies that the bloodline of a mother is inferior to that of a father.
We may not be able to get into a DeLorean to travel back in time and change the patriarchal views of our forefathers — but how the government of the day has taken so long to propose an amendment to this discriminatory practice is baffling.
Even now, the government seems to not want their own constitutional amendment proposal to pass because they have lumped this amendment up with several other amendments that regress citizenship laws "ten steps backwards".
Child Marriage
In most States, Muslim girls below 16 can get married with the approval of a Syariah judge or the Menteri Besar. Data shows that out of ten child marriage applications, about eight are approved. That's crazy!
The National Fatwa Council issued a fatwa in 2014 discouraging child marriage to prevent harm towards girls. Subsequently, the legal minimum age of marriage in Selangor and Kedah was raised to 18 years old.
But that's all that can be done. The Federal Government cannot do much because the Constitution gives each State the exclusive power to enact Islamic personal and family law (including marriage).
In other words, we have indirectly constitutionalised child marriage; the supreme law of the land is supreme for the wrong reason when it comes to protecting the young women of Malaysia.
In the words of Malala Yousafzai,
"We cannot all succeed when half of us are held back."
In an attempt to rekindle some hope to this rather depressing revelation of the reality of our Constitution — this International Women's Day let us remember that the fight towards true equality is a mantle ALL of us must take up.
Kim Possible once said, "I'm your basic average girl, and I'm here to save the world." Perhaps this best captures the plight of modern women, who day in day out fight to change the systemic barriers and social narratives in their own individual capacity. So let's take a moment to celebrate and acknowledge the women in our lives!
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