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Learning Objective:

 LO1 : Identify the basic features of human rights law in general;
and basic concepts of a few major international human rights
treaties as well as pertinent issues relating to human rights law
 LO2: Analyse the principles of human rights law and policy
applicable in Malaysia as well as few other countries
 LO3: Critically evaluate the development, content and
operation of principles and policies concerning international
human rights as well as the constraints involved in their
implementation
 LO4: Compare and contrast the level of human rights
protection afforded in international human rights treaties and
aspects of selected State practice.

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 Video
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 https://www.youtube.com/watch?v=-57zKcmrT6M

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Mary Wollstonecraft (1759-1797), founder of modern feminism 4
 From Mary Wollstonecraft’s book A Vindication of the Rights
of Woman (1792):

 “If women be educated for dependence; that is, to act
according to the will of another fallible being, and submit,
right or wrong, to power, where are we to stop?”
 “The divine right of husbands, like the divine right of
kings, may, it is hoped, in this enlightened age, be
contested without danger.”
 “I do not wish (women) to have power over men, but over
themselves.”

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- All humans are born free and equal in dignity and rights
- Men and women of full age, without any limitation due to race, nationality or religion, have the right to marry
and to found a family. They are entitled to equal rights as to marriage, during marriage and at its dissolution.
Marriage shall be entered into only with the free and full consent of the intending spouses.
- Everyone has the right to own property alone as well as in association with others.
- Everyone has the right to work, to free choice of employment, to just and favourable conditions of work
and to protection against unemployment.
- Everyone, without any discrimination, has the right to equal pay for equal work.
- Everyone who works has the right to just and favourable remuneration ensuring for himself and his family an
existence worthy of human dignity, and supplemented, if necessary, by other means of social protection.
- Everyone has the right to education. Education shall be free; at least in the
elementary and fundamental stages Elementary education shall be compulsory.
Technical and professional education shall be made generally available and higher
education shall be equally accessible to all on the basis of merit.
- Everyone has the right freely to participate in the cultural life of the
community, to enjoy the arts and to share in scientific advancement and its 6
benefits.
 
 BUT THE RULES UNDER UDHR ARE
CONSTANTLY BEING BROKEN

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 In Ancient Times

Women’s rights have been a global issue since ancient
times:
 China: Foot binding
 Rome: Could not vote, hold office, serve in military
 Athens: not even considered citizens

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 According to English Common Law, which developed from
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the 12th Century onward all property which a wife held at the
time of a marriage became a possession of her husband.
Eventually English courts forbid a husband's transferring
property without the consent of his wife, but he still retained
the right to manage it and to receive the money which it
produced.
 "French married women suffered from restrictions on their
legal capacity which were removed only in 1965.“

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 NOW

 Continuing struggles for equality and justice
 Reproductive rights
 Domestic violence
 Maternity leave
 Equal pay
 Sexual harassment
 Sexual violence

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 Now

 Women do two-thirds of the world’s work
 but receive only 10% of the world’s income
 and own less than 1% of land.
 Women in developing countries on average carry 20 litres
of water per day over 6 km
 Women in many cases are the primary care givers,
and balancing the challenges of work and family is
complex.
 Globally there is still a gender pay gap, a lack of women
parliamentarians, and women's health overall around the
world is worse than that of men..

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 When a boy is born in most developing countries,

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friends and relatives exclaim congratulations. A son
means insurance. He will inherit his father's property
and get a job to help support the family.

 When a girl is born, the reaction is very different. Some

women weep when they find out their baby is a girl
because, to them, a daughter is just another expense. Her
place is in the home, not in the world of men. In some
parts of India, it's traditional to greet a family with a
newborn girl by saying, "The servant of your household
has been born."

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 The developing world is full of poverty-stricken families
who see their daughters as an economic predicament.

That attitude has resulted in the widespread neglect of
baby girls in Africa, Asia, and South America.

 In many communities, it's a regular practice to

breastfeed girls for a shorter time than boys so that
women can try to get pregnant again with a boy as soon
as possible. As a result, girls miss out on life-giving
nutrition during a crucial window of their development,
which stunts their growth and weakens their resistance
to disease.

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 
 Women in every society are vulnerable to abuse. But
the threat is more severe for girls and women who
live in societies where women's rights mean
practically nothing.
 Mothers who lack their own rights have little
protection to offer their daughters, much less
themselves, from male relatives and other authority
figures. The frequency of rape and violent attacks
against women in the developing world is alarming.

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 
 Rates of HIV infection among women are rapidly
increasing. Among those 15-24 years of age, young
women now constitute the majority of those newly
infected, in part because of their economic and social
vulnerability.

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 Malaysia: History &
Development

 Before the Second World War, many of the girls in
the school system were educated only up to the end
of primary school-parents/lack of self interest
 1947 there were only 3,212 girls as opposed to 9,298
boys in secondary schools in the country

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 Even in the year of independence, 1957, the boys still
outnumbered the girls in secondary schools (31,180 boys
to 17,055 girls).
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 As a result, men were predominant in almost all sectors
of employment, even in the teaching and clerical
services.
(source: Source: Ministry of Education Malaysia.
Educational Statistics of Malaysia 1938 to 1967, Dewan
Bahasa dan Pustaka (1967))

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• The role of Women NGOs working hand in hand with
government agencies in promoting women’s rights
issues cannot be under-estimated.

• The contributions of their parent body National
Council of Women Organisations (NCWO) together
with groups like All Women Action Malaysia
(AWAM), Women Aid Organisation (WAO), and
several others in raising the level of awareness with
regard to women’s rights and helping push for
acceptance of certain principles of women’s rights like
non-discrimination against women as a whole, equal
pay for equal work, more women in decision-making
positions, and greater integration of women in national
development, have been enormous. 18
 The 1980s and 1990s continuing into the early years of
the twenty-first century proved to be ground-breaking
years for women. Not only did Malaysia see the

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appointment of the first lady Judge but the first lady
Director-General of Education as well as the
appointment of a few lady Secretary-Generals of
Ministries.

 In the diplomatic service, a few lady ambassadors were

appointed since the 1980s. In the political arena of course
there had been lady ministers in the Cabinet since 1969.
But what was more encouraging was the appointment of
a lady minister specifically to look into issues concerning
women, the family and the community with the creation
of the Ministry of Women, Family and Community
Development (MWFCD) in 2001.
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 Advancement of Rights of
Women

 Advancement of women in the country was
Malaysia’s ratification of the Convention on the
Elimination of All Forms of Discrimination against
Women (CEDAW) in 1995.
 The Convention had been with the United Nations
since 1979. Although Malaysia had waited 16 years
before she decided to sign and ratify this
Convention, it was better late than never. And it took
another six years before she decided to review the
provision in the Federal Constitution on
discrimination.
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 Continue…

 In 2001, after submissions from the MWFCD, SUHAKAM and
Women NGOs, the government decided to amend Article 8(2)
of the Constitution by including gender as a basis for
nondiscrimination.
 These two defining events, the ratification of CEDAW and the
amendment to Article 8(2) of the Constitution, provided the
constitutional human rights safeguards that the women of
Malaysia had been struggling for. The word ‘gender’ was
inserted into Article 8(2) of the Federal Constitution in 2001 in
order to comply with Malaysia’s obligation under CEDAW. It
now reads as follows: “... 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”
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 CEDAW

 The Convention on the Elimination of All Forms of
Discrimination against Women defines the right of
women to be free from discrimination and sets the
core principles to protect this right.
 CEDAW, adopted in 1979 by the UN General
Assembly, is often described as an international bill
of rights for women. Consisting of a preamble and 30
articles, it defines what constitutes discrimination
against women and sets up an agenda for national
action to end such discrimination.
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 The Convention provides the basis for realizing equality
between women and men through ensuring women's
equal access to, and equal opportunities in, political and

public life -- including the right to vote and to stand for
election -- as well as education, health and employment.
States parties agree to take all appropriate measures,
including legislation and temporary special measures, so
that women can enjoy all their human rights and
fundamental freedoms.

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 The Convention is the only human rights treaty which
affirms the reproductive rights of women and targets
culture and tradition as influential forces shaping
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gender roles and family relations. It affirms women's
rights to acquire, change or retain their nationality and
the nationality of their children. States parties also agree
to take appropriate measures against all forms of traffic
in women and exploitation of women.

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 CEDAW: Discrimination
Defined

 The Convention defines discrimination against
women in the following terms:
Article 1-Any distinction, exclusion or restriction made
on the basis of sex which has the effect or purpose of
impairing or nullifying the recognition, enjoyment or
exercise by women, irrespective of their marital status,
on a basis of equality of men and women, of human
rights and fundamental freedoms in the political,
economic, social, cultural, civil or any other field.

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 
 Countries that have ratified or acceded to the
Convention are legally bound to put its provisions
into practice. They are also committed to submit
national reports, at least every four years, on
measures they have taken to comply with their
treaty obligations.


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 Reservations

 Malaysia also still has five reservations in place with
respect to CEDAW.
 equal rights for women to pass their nationality to their
children (Article 9(2));
 equal rights to enter into marriage (Article 16(1)(a)); equal
rights and responsibilities during marriage and at its
dissolution (Article 16(1)(c));
 equal rights and responsibilities with regard to
guardianship, wardship, trusteeship and adoption of
children (Article 16(1)(f));
 and the same personal rights in a marriage, including the
right to choose a family name, a profession and an
occupation (Article 16(1)(g)).
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 Principles under CEDAW

 Principle of Equality
 Principle of Non-Discrimination
 Principle of State-Obligation

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 Principle of Equality

 The concept of equality is traditionally understood to
mean "the right to be equal to men". This becomes
problematic when it is extended to the
understanding that women must be treated exactly
like men if they are to gain equality with men. It
implies that women must be treated according to
male standards, obscuring the ways in which women
are different from men and how they will be
disadvantaged because of these differences.

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 
 Initiatives for the realisation of women's rights need
to compensate for or cater to the difference, disparity
or disadvantage, rather than a “one size fits all”
approach.
 It means taking into account the ways in which
women are different from men, and ensuring that
these differences are acknowledged and responded
to by State measures toward achieving equality.

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 
 The concept of substantive equality arose out of the
recognition that formal equality may not be
sufficient to ensure that women enjoy the same
rights as men.
 An ostensibly gender-neutral policy, while not
excluding women per se, may result in
discrimination against women.
 EXAMPLES??

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 Principle of non-
discrimination

 The principle of non-discrimination is based on the
understanding that discrimination is socially
constructed rather than “natural”.
 A law or policy may not have the intention of
denying a woman the enjoyment of rights but if it
has the effect of doing so then it constitutes
discrimination.

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 Correcting Continued Discrimination
 Despite legal rights being granted to women in many countries,
discrimination persists, and women's access to legal rights are curtailed
by denial of women's rights to economic and social development.

Therefore CEDAW bridges the traditional divisions between civil and
political and socio-economic rights, mandating both legal and
development policy measures to guarantee the rights of women.

 The uniqueness of the CEDAW Convention rests on core principles

which:
 - demand that power relations between women and men at all levels,
from family, to community, market and state;
 - discard the distinction between the private and the public spheres, by
recognising violations of women in the private sphere, as violations of
women's human rights;
 - recognise the negative impact of social, customary and cultural
practices which are based on the perceived inferiority or superiority of
either sex or on stereotyped roles for women and men.
 The Convention has wide applicability in identifying discrimination
and measures for eliminating discrimination.

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 Principle of State-
 Introduction Obligation
 When a country becomes a State party to CEDAW, it voluntarily accepts a range


of legally binding obligations to eliminate discrimination against women and
bring about equality between women and men.
 The Responsibility of the State
 A State party to CEDAW essentially enters into a contract with all other States
parties that:
 - It will abide by norms and standards collectively agreed upon by the States
parties
 - It is offering itself to a scrutiny by an international expert committee on the
basis of these norms and standards.
 Every State party is obliged to present an initial report to the United Nations
one year after accession on the obstacles to the equality status of women and the
actions it intends to take to remove such obstacles. Thereafter, the States party is
required to submit a periodic report on the progress made every four years.
Under the CEDAW treaty, the State has responsibilities to women from which it
cannot withdraw, and to which it will be held accountable at the national and
international levels.

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 Noorfadilla binti Ahmad
Saikin v Chayed bin Basirun
and Ors [2012]
 1 CLJ 769
Article 11(1)(b) of CEDAW provides that “State Parties
shall take all appropriate measures to eliminate
discrimination against women in the field of employment in
order to ensure, on a basis of equality of men and women, the
same rights, in particular ... the right to the same
employment opportunities, including the application of the
same criteria for selection in matters of employment”.

Article 11(2)(a) requires States Parties to take

appropriate measures to prohibit dismissal on the
grounds of pregnancy.
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 Issue:

 Refusing to allow a pregnant woman to be employed
was tantamount to gender discrimination and in
violation of Article 8(2) of the Federal Constitution?

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 Facts

 The appellant started working as a flight stewardess,
Salary Grade B, with the first respondent on 14
October 1980. The terms and conditions of the
service was governed by the collective agreement
dated 3 May 1988. Article 2(3) of the First Schedule
to the collective agreement requires the appellant to
resign on becoming pregnant. In the event she fails
to resign the company shall have the right to
terminate her services.

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 DECISION OF THE
HIGH COURT

 The learned Judge, Dato' Zaleha binti Yusof J, opined
that the Court had “no choice” but to refer to CEDAW
in clarifying the term ‘equality’ and the concept of
gender discrimination under Article 8(2) of the
Federal Constitution.
 Relying on Mohd Ezam Mohd Noor v Ketua Polis
Negara [2002] 4 MLJ 449, the Court held that as
CEDAW is a convention and not a mere declaration,
it has the force of law and is binding on member
states.
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 
 The Court noted its duty to take into account the
government’s obligation under CEDAW in
interpreting Article 8(2) of the Federal Constitution.
Her Ladyship also drew inspiration from Australian
and Indian jurisprudence which advocates the use of
international conventions and obligations in the
construction of domestic legislation.

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 
 The Court noted its duty to take into account the
government’s obligation under CEDAW in
interpreting Article 8(2) of the Federal Constitution.
Her Ladyship also drew inspiration from Australian
and Indian jurisprudence which advocates the use of
international conventions and obligations in the
construction of domestic legislation.

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 
 In applying Article 1 and 11 of CEDAW, and
drawing inspiration from the Canadian Supreme
Court case of Brooks v Canada Safeway Ltd [1989] 59
DLR (4th) 321, the learned Judge held that pregnancy
is a form of gender discrimination “because of the basic
biological fact that only woman have the capacity to
become pregnant”.

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 
 YOUR THOUGHTS?

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 Commentary

 This decision marks a departure from the courts’
complacent attitude towards international human
rights law and is hopefully representative of an
emergent rights-centred approach. The Court has
finally realised the importance of interpreting
domestic legislation in line with international law so
as to ensure an improvement of Malaysia’s
reputation within the international human rights
community

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 MALAYSIA: Women’s
Rights Practices

- MOVING FAST OR AT THE STAGE OF INFANCY?

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 
 Federal Constitution, which was made in 2001, the
Government has not passed any specific legislation
to prohibit gender discrimination. Indeed, in the
first test case after the Federal Constitution was
changed, Beatrice Fernandez v Sistem Penerbangan
Malaysia & Anor in 2004, the provisions of CEDAW
were also invoked but without success.
 That decision, which still stands today, held that the
forced resignation of an airline stewardess after
becoming pregnant was a matter of private contract
law, and not gender equality or discrimination
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 
 A further disturbing decision was that of the Court
of Appeal in March 2012 which upheld the right of
an employer, Guppy Plastics Industries Sdn Bhd, to
enforce the retirement of female employees at an
earlier age than male employees.

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 Suggestions
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 Enacting specific anti-gender discrimination
legislation will go a long way towards promoting
and protecting gender equality in Malaysia.
 Remove reservations

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FINISH
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