Tuesday, October 02, 2012

Najib, we need a stronger women rights movement and you must listen to them

Again, our Prime Minister has done it when he allegedly stated that  there is "no need for a women's rights movement in Malaysia". He is ignorant of the importance of Malaysia's women rights movement and their many contributions to the promotion of not just women rights but also human rights in Malaysia. Next, he may say that there is no need for human rights movement....worker rights movement...environmental rights movement in Malaysia..

There is "no need for a women's rights movement in Malaysia" as equality has been given from the start, Prime Minister Najib Abdul Razak has claimed.Speaking at the 50th National Women's Day celebration this morning, he said that Malaysia is even more advanced than developed nations in this aspect. - Malaysiakini, 2/10/2012, PM: No need for women's rights movement in M'sia

PM Najib, is there gender equality in Malaysia?  

Yes, there is in some areas but in Malaysia discrimination based on gender is still permissible - and the government has not done enough to end gender-based discrimination despite the fact that Malaysia has also ratified the CEDAW (The United nations Convention on the Elimination of All Forms of Discrimination Against Women) in 1995. 

It must be acknowledged that it was the efforts of Malaysia's women rights movement that finally moved the Malaysian government, who finally after about 15 years to  acceded to CEDAW on 5 July 1995 with reservation on 3 articles. CEDAW was adopted by the UN General Assembly on 18 December 1979.It took Malaysia another 6 years to  amend the Federal Constitution, and include 'gender' in Article 8(2)...Some Acts were amended as well - but the best option would have been to pass a law incorporating the CEDAW into Malaysian Law. 

It would have been good if our Federal Constitution was amended to include the 'doctrine of incorporation' - which will automatically ensure that all conventions that Malaysia ratifies becomes part of the domestic law in Malaysia. 

Malaysia, however relies on the 'doctrine of transformation', which means that these international obligations like those in CEDAW only becomes part of domestic law if enacted by subsequent domestic laws (or judicial decisions). The piecemeal approach by the Malaysian government of amending this and that law has resulted that there are many areas of Malaysian law that still do not incorporate the principles and obligations in CEDAW.

So, are women still being discriminated against in Malaysia?

YES, they are.

For example, in Malaysian women workers can still be discriminated against by reason of their gender. Employers in the private sector still do discriminate women on the basis of gender, and this happens because the Malaysian government FAILED women workers when they failed to enact/amend necessary laws to ensure an end of discrimination based on gender. In fact, it is still allowed for individual persons, private corporations to discriminate women on the basis of their gender.

When an employers can force women to retire at 50 and men at 55 at the same workplace, this is DISCRIMINATION based on GENDER, and our Malaysian courts said that it is OK. Why? Because the amendment to Art. 8(2) of the Federal Constitution only prevents public authority from discriminating against their employees...not employers in the private sector.

(2) Except as expressly authorised by this Constitution, 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 or in the administration of any law relating to the acquisition, holding or disposition of property or the establishing or carrying on of any trade, business, profession, vocation or employment.

In the recent case of  Noorfadilla Ahmad Saikin V. Chayed Basirun & Ors (Shah Alam High Court, 12 July 2011), here Noorfadilah was an employee of the government....BUT if she was an employee in the private sector, the outcome would not have been the same...

It is also the defendants' submission that based on the Federal Court's decision in the case of Beatrice AT Fernandez v. Sistem Penerbangan Malaysia & Anor [2005] 2 CLJ 713, art. 8 of the Federal Constitution does not apply to a contractual relationship. With due respect, what was held in Beatrice's case (supra) inter alia, is as follows:
To invoke Article 8 of the Federal Constitution, the applicant must show that some law or action of the Executive discriminates against her so as to controvert her rights under the said article. Constitutional law, as a branch of public law, deals with contravention of individual rights by the Legislative or the Executive or its agencies. ...
By virtue of art. 160 of the Federal Constitution, the defendants are definitely public authorities and therefore agents of the Executive. To me, the defendants' act of revoking and withdrawing the Placement Memo because the plaintiff was pregnant constitute a violation of art. 8(2) of the Federal Constitution. It was the contravention of the plaintiff's rights by the defendants as agents of the Executive. As such, the requirement of Beatrice's case has been fulfilled....

The Court of Appeal today(21/3/2012) dismissed an application by female workers claiming gender discrimination in being forced to retire earlier than male colleagues.A three-man bench led by Datuk K. N. Segara upheld a 2010 High Court ruling on the 11-year-old case, which had overturned an initial Industrial Court’s 2008 decision in favour of the eight plastic industry workers. They were forced to retire in June 2001 after the company, Guppy Plastic Industries, enforced a then-new employee handbook rule stipulating a retirement age of 50 for female employees and 55 for male employees. - unfortunately the Judgment is still not available to me, and when it is, I will share it with you.

In short, court decisions seem to indicate that only the Government is barred from discriminating its employees on the basis for gender but it is alright for all other employers, including even Government-linked companies.

Article 11 of CEDAW
1. States 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:
(a) The right to work as an inalienable right of all human beings;

(b) The right to the same employment opportunities, including the application of the same criteria for selection in matters of employment;
(c) The right to free choice of profession and employment, the right to promotion, job security and all benefits and conditions of service and the right to receive vocational training and retraining, including apprenticeships, advanced vocational training and recurrent training;
(d) The right to equal remuneration, including benefits, and to equal treatment in respect of work of equal value, as well as equality of treatment in the evaluation of the quality of work;
(e) The right to social security, particularly in cases of retirement, unemployment, sickness, invalidity and old age and other incapacity to work, as well as the right to paid leave;
(f) The right to protection of health and to safety in working conditions, including the safeguarding of the function of reproduction.
2. In order to prevent discrimination against women on the grounds of marriage or maternity and to ensure their effective right to work, States Parties shall take appropriate measures:
(a) To prohibit, subject to the imposition of sanctions, dismissal on the grounds of pregnancy or of maternity leave and discrimination in dismissals on the basis of marital status;
(b) To introduce maternity leave with pay or with comparable social benefits without loss of former employment, seniority or social allowances;
(c) To encourage the provision of the necessary supporting social services to enable parents to combine family obligations with work responsibilities and participation in public life, in particular through promoting the establishment and development of a network of child-care facilities;
(d) To provide special protection to women during pregnancy in types of work proved to be harmful to them.
3. Protective legislation relating to matters covered in this article shall be reviewed periodically in the light of scientific and technological knowledge and shall be revised, repealed or extended as necessary.
To name some other laws/policies that do have a tendency discriminate against women directly or indirectly, amongst others, are:-

- the Anti Human Trafficking law in Malaysia that do not provide victims of trafficking any remedies like compensation and damages - this law today provides only temporary protection, which really is a period for the authorities to gather evidence only. Thereafter, local women are sent for 'rehabilitation' and foreign women handed over to Immigration Department to be send back. What about the compensation for these victims from their perpetrators....which may also include wages owed to them as Malaysia defines victims of trafficking as persons exploited and these include workers who are exploited. see also Malaysia's Anti-Trafficking Act will cause injustice to workers...especially migrant workers

- then  we have the recent amendment to the Employment Act with regard to sexual harassment, for here again there is nothing about compensation or damages for the victim. All that the law seem to say is that these victims can end their employment without the giving of notice. Further, inquiry is done generally by a panel set up by the employer. There seem to be not even the ability to lodge the complaint at the labour department, where the matter could be better adjudicated by a third party, i.e. the Labour Department, whereby thereafter parties aggrieved by the decision could appeal to the High Courts and appeal courts if dissatisfied. Many of the victims are women and certainly this law does not aid the victim much at all ...and Najib is saying that we do not need a women rights movement...see also Why 'Sexual Harassment' proposed amendments to Employment Act must be withdrawn and repealed? and JAG :- Employment Act amendments piecemeal and unjust

- How many women in the private sector on fixed-term contracts who got pregnant did get their contracts renewed, and enjoyed the maternity leave rights? Most, if not all, will just not renew these contracts when the women is pregnant - not will they offer employment to women who are pregnant?. Malaysia, rather than protecting worker rights for regular employment until retirement, retrenchment, etc allowed the use of short-term contract employment - which is certainly a form of precarious work, and is also an effective tool of control of workers. Short-term contract employment should be restricted to what is really short term work - not work which is regular in nature and is part of the core operations of the employer.  See also BN government is NOT on the side of workers - Workers also need to reclaim their lost rights ...

- Malaysia cancels a migrant worker's employment/work pass just because she got pregnant. How she got pregnant has no bearing? See also MEDICAL SCREENING is very wrong & should be STOPPED immediately

- When young women are arrested at night spots - so easily are they highlighted in the media or commented on as being 'prostitutes' (sex workers), and this 'name calling' undermines the presumption of innocence until proven guilty. How many of these women have really gone through a full trial, whereby the court found them guilty of soliciting for sex for money? see also Police and Media must be held accountable for antics at "anti-vice' raid

There certainly are so many BN women MPs and Senators who could be made the Minister of Women Affairs - but our male Prime Minister chooses to hold on to that position himself - it is so patriarchal....and also an indication that this PM really have not much confidence in his own BN women MPs and Senators...I am quite disappointed that the BN women leaders never protested strongly this...

There is certainly a need for a stronger women rights movement in Malaysia, and there is a need for a much stronger struggle for women rights especially in Malaysia where the BN government has failed to ensure that all women enjoy freedom from discrimination by reason of gender...

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