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by. Salbiah Ahmad
“ Most of the discussions raised in this paper relate to my own work with groups at the local level. These experiences relate to domestic violence, sexual assault, sexual harassment, family law, conflicts between civil and Islamic law and women and Islam. The women’s organizations where I volunteered with are Women’s Aid Organization (WAO, 1985-1996), All Women’s Action Society (AWAM, 1985-1996), Association of Women Lawyers (AWL, 1985-1991), Sisters in Islam (1987-1997) and Women’s Crisis Centre (WCC, 2000-present). My work experience at the regional level with the Asia Pacific Forum onWomen, Law and Development (APWLD, 1992-1995) was invaluable in the development of analyses and frame works for action”.
Introduction
On March 25, 1985 five organizations came together to hold a two-day public forum and exhibition called, Violence Against Women (VAW). The five were WAO (formed in 1982), AWL, the University Women’s Association, the , Malaysian Trade Union Congress, Women’s Section (MTUC) and the Media Group of the Selangor Consumers’ Association. The forum held workshops on domestic violence, rape, sexual harassment, prostitution and the portrayal of women in the media. About more than 1,700 women and men attended.
The public forum was the first of a kind in Malaysia where women’s version of events, experiences and struggles were strongly articulated and publicly debated. These were documented and distributed at the forum. It was an enriching experience for the organizers as well as participants. Several resolutions were passed at the forum. It was a beginning when the participants at the meeting called mainly for legal reforms.
Women’s Rights to Reproductive Health
Many believed, including the organizers that change will come with a change in the law. On hindsight this expectation of law was “uninformed” and for a good number of years of the women’s VAW campaign, this expectation proved a hard lesson. There are no failures in the agenda for social change, only set backs as each experience provides its lessons for re-visioning the struggle, thus strengthening individuals and group action.
There are at present no women’s organizations working specifically on reproductive health in Malaysia. Groups do carry out health programmes and activities related to reproductive health. These include regular talks on cancer screening, pap smears and breast examinations; awareness-raising on AIDS; advocacy and training on sexuality issues, bodily integrity and control over their own bodies. These are in addition to issues on equality.
Concepts on Reproductive Health
The concepts of reproductive health has evolved from the several international meetings from the 1974 World Population Conference in Bucharest, Romania (Bucharest) to Mexico in 1984, to the 1994 International Conference on Population and Development in Cairo, Egypt (ICPD) and the 1995 Fourth UN World Conference on Women in Beijing, China (Beijing).
The ICPD and Beijing conferences recommended the incorporation of a broader concept of reproductive and sexual health in policies and programmes, which would include women’s right to be fully informed, to make their own decisions on sexual and reproductive matters and to have access to the services needed.
Gender and equality are key issues. Gender inequality between men and women is a barrier to women’s access to health services and perceptions of women’s reproductive health and rights. Reproductive choice and population policies are to be analyzed from the perspective of gender discrimination.
The link made between women’s rights, economic and social conditions and gender inequality is central to woman’s control over their sexuality, their bodies and health. Reproductive health in this perspective becomes an issue of human rights. The Beijing Platform for Action re-affirms this as follows:
“Women have the right to the enjoyment of the highest standard of physical and mental health. The enjoyment of this right is vital to their life and well-being and their ability to participate in all areas of private and public life….Women’s health involves their emotional, social and physical well-being, and is determined by the social, political and economic context of their lives, as well as by biology. However, health and well-being elude the majority of women. A major barrier for women to the achievement of the highest attainable standard of health is inequality both between men and women and among women in different geographical, social classes and indigenous and ethnic groups…(Para 91)”
While health problems among countries may differ, the underlying factors are substantially the same. These factors relate to the social status and position of girls and women in relation to men. Son and male preference for example can lead to discriminatory patterns of food distribution and access to health care.
Discriminatory laws and customs related to land ownership, inheritance, marriage and divorce leaves women with less economic resources of their own to contribute to improving their nutrition and acquiring health care. These factors are frequently reinforced by conservative interpretations of religious texts promoting unequal value and roles for women and men. Educational opportunities for girls and women also affect their status and the control they have over their own lives, their health and their fertility.
Besides the social and cultural factors, economic factors also play a role. For example resource allocations of development funds for health are too low with government priority given to defense. In the period 1986-1992, Malaysia spends 5% of its expenditure on health and about 13% on defense. In some countries these health budgets are slashed under structural adjustment policies. Privatization of the public health care system also reduces the availability of health services to the poor. Women face a greater work burden than men in their role as the main careers of sick members of the family.
Local Issues as Components of the Broadened Concept of Reproductive Health and Rights
The VAW campaign as well as the overall campaign on equality and freedom from discrimination can therefore be seen to be included within the broadened concept on reproductive health rights of women.
The VAW campaign took on the following components:
1. Public education and consciousness-raising.
2. Training of campaign groups and volunteers to understand the issues well.
3. Development of skills on several aspects like lobbying and public speaking.
4. Media engagement on issues.
5. Mobilizing of women’s groups around the issues/Networking.
6. Setting up of support services.
7. Networking / Engagement with government agencies on the issue.
8. Linking up with professional groups and institutions.
9. Documentation and development of campaign materials.
10. Legal reform, drafting, training of lawyers in feminist legal theory and practice.
11. Funding.
Domestic Violence (DV)
The main organizations working to develop key components to this campaign which took almost ten years before a law on domestic violence was passed are AWAM, WAO, WCC, AWL, Sahabat Wanita, Women’s Development Collective (WDC), Sisters in Islam (at the later stage).
This was the first serious campaign that the women’s groups which banded together as a Joint Action Group (JAG) had to undertake. JAG component members are of course larger. However the years of campaigning with many setbacks along the way has taught the campaigners of success comes with effective delegation of principal tasks and common actions on some.
Lessons Learnt from the DV Campaign which Assisted Future Actions
1. Public education on the issues has an on-going concern irrespective of whether wider ‘goals’ are achieved. Education and re-education.
2. Public education of personnel in government agencies is crucial as the government is in the position to deliver the main structural changes like laws, training of service personnel and provision of support
services. While engagement is crucial, the ability to disengage is important to maintain autonomy of civil society processes.
3. Any change in the law has to be first accompanied by consciousness raising on the issue, thus providing the rationale for the need to change the law.
4. Women’s experiences are invaluable in finding the extent of the problem and the kind of responses that would be more supportive of women.
5. Women have first to learn about making decisions for themselves before they are in a position to articulate changes.
6. A change in the law does not translate into changes in cultural attitudes towards women nor bring the desired change without training of legal personnel like lawyers and judges.
7. It is more expeditious if women’s groups themselves draft the required law rather than propose a change and having to negotiate with government agencies with every provision in the law, the rational of the law
and its implementation. Women should not go so far and then suddenly ‘lose control’ of the processes by thinking that government agencies would actually take up the ideas in good time.
8. Women have to document their struggles (actions and analyses) as part of the process of education for social transformation.
9. An evaluation process has to be built into strategic periods of the campaign to re-assess strengths and weaknesses, re-examine expectations, methods and processes, identify gaps and re-strategize.
10. Funding is essential.
Some of the Major Setbacks
1. The arrests under the Internal Security Act (ISA) of 106 social activists, opposition politicians and key women leaders in JAG in October 1987. This suspended the campaign as a result of fear of arrests as no one has a clue for the reasons of the arrests of women NGO leaders. The ISA is a preventive detention law. This means that the state is not obliged to try those arrested in a court of law. There was a necessity to groom new leadership to lead the campaign and fresh efforts had to be made to regroup JAG members or find new partnerships.
2. The opposition from Moslem scholars or ulama of the application of the proposed DV law on Moslems. Concerns of the ulama related to the Qur’anic verse in 4:34 on daraba (beating). The claim is, if the Qur’an allows beating, then the law should not sanction the husband. By this time, the group, Sisters in Islam was already in existence. The group worked with Dr. Amina Wadud, a theologian then teaching in the International Islamic University, to explore another reading of the verse. Dr. Amina applied a hermeneutical methodology to her exegesis of the verse and the reading did not support a right to beat a Moslem wife. This finding was published in a booklet called, Are Moslem men allowed to beat their wives? The information was part of the campaign especially among Moslem based groups, politicians and their wives and government agencies. The reading so developed echoes the campaign cry that, “No one deserve to be battered”.
3. There was a threatened split among groups when the ulama opposed the law based on the verse 4:34 on “beating”. Some groups proposed that the new law should not be applicable to Moslem women in order to allow the law to be passed in 1992. The other groups insist on one law on DV for all women, even though there are provisions in the separate state Islamic family law to allow women recourse to divorce on the ground of cruelty and a penalty for violent husbands. The proposed DV law is not a criminal law. There is a protection order (against molestation) under the proposed law and provision on counseling which is not available under state laws.
4. The ulama also opposed the provision on marital rape as a ground for application for the protection order under the DV law. Women’s opposition to the ulama’s objection did not succeed. The minister in charge and the representative from the Attorney General’s Chambers advised that women compromise and let the objections on marital rape go as the ulama’s objections on daraba would not be allowed.
5. The health ministry was reluctant to give its support to the bill in case it entails supervision on its part. Several ministries were lobbied and the Ministry for Social Welfare and Community Development headed by a woman minister decided to sponsor the law.
6. The law was passed in 1992 with jeers from backbenchers and some MPs from the ruling parties. It was not gazetted for enforcement for two years until women’s groups demonstrated on International Women’s Day in 1994 and Parliament ordered the law to be gazetted for enforcement.
The Case of Mohamed Habibullah bin Mahmood v Faridah Bte Dato Talib [1990] 1 MLJ 174
The DV campaign took a dramatic turn in 1989 when a battered Moslem woman lawyer who could not successfully secure a remedy for an injunction against molestation in the state Syariah Court nor a Moslem divorce, made an application to the Civil High Court to restrain her husband from abusing her. An ex parte (one party application) order was granted. The actual order was not issued when the husband came to the civil High Court and gave an undertaking that he will not abuse her. She made another application in the same court in April for a restraining order. At this time she also filed an affidavit (sworn statement) that she has renounced Islam which she later retracted in May due to some pressure from family and friends as a renunciation would expose her to a criminal charge under the state Syariah law. She also filed a claim for damages in tort in the Civil High Court under a civil law, the Married Women’s Ordinance of 1957.
The High Court gave her a restraining order but decided that the Married Women’s Ordinance did not apply to Moslems. The husband appealed to the Supreme Court against the restraining order against him. The Supreme Court decide that the Civil High Court had no power to issue the restraining order as it had no power to do so as a constitutional amendment in 1989 in Article 121A does not allow jurisdiction to the civil court on a matter where the Syariah Court has jurisdiction. The Syariah Court has power under the state Islamic family law to issue an order against molestation and therefore the High Court’s decision was wrong.
Faridah did not manage to get the Syariah court to issue the order against molestation nor did she manage to obtain her divorce until politicians in her home state intervened. The case highlighted the lack of independence of the state Syariah courts. It was rumored that her husband had connections with the Moslem court officials which prevented her cases from being heard. The fact that politicians had to intervene also showed the lack of independence of the state Syariah Court.
The case highlighted the problems in the administration of the state courts and this case was used by campaigners for the one law principle on DV under the jurisdiction of the civil courts.
Police Responses on Domestic Violence
WAO which was set up in 1982, had monitored public and agency responses on DV. This includes police responses at the time of lodging of police reports, police assistance in accompanying battered women home to collect their belongings, police assistance in stopping violence in homes.
WAO embarked on a series of dialogue with police personnel at the district level where WAO is located and with those at police headquarters to ensure that police take down women’s reports of battery. The top-down approach worked well in that complaints to police headquarters of errant police were responded to. Women’s groups were also able to lobby for a special all women unit to deal with rape and DV.
Conceptual Issues in Law Reform
The campaign on DV and rape in Malaysia posed very difficult conceptual issues and law which groups including lawyers due to lack of experience in legal reform in a gender perspective was not adequately trained to deal with. The campaign on law reform had to deal with these problems as and when it surfaced as again campaigners were not able to forestall the problems from the beginning and develop a more holistic perspective to law, law reform and gender issues. However with these experiences and new ways of thinking on gender issues in law, new campaigns would be better informed and better strategised.
From the time in Nairobi at the Third UN World Conference on Women in 1985 women’s rights activists have begun re-theorizing women’s experiences with the law in interventions and actions with law reform in the context of what is now germinated into feminist legal theory and practice or legal feminism or feminist jurisprudence.
“Thus, ‘feminist jurisprudence’ includes all attempts to explain, critique and change law on behalf of, and from the perspective of, women. While it may be practiced in many forms, all forms must start in the same place, i.e. by taking women’s experience as central, and legal categories or doctrines as merely raw material..”
Implications for DV in Malaysia: The passing of this law makes a statement that no one deserves to be battered. The law gives protection to a battered women through a protection order. The DV Act is not a criminal law. Women do not in any case prefer criminal action against their husbands and in many cases will not stand as a witness at a criminal trial against their husbands. Women do however want the violence to stop and that the husband to receive counseling.
As far as Moslem women are concerned, the DV law had allowed a moving away from the perception that a disobedient (nushuz) wife can de beaten at will. A battered wife has recourse to a civil court that would grant her protection upon proof of violence per se without any need to consider whether there was ‘disobedience’. In this there is some effect over the cultural or religious view of daraba (beating). Of course this would not mean that women who know of this law would readily seek its protection.
She may be dissuaded from pursuing this course because of ingrained cultural values. Nevertheless the existence of the law provides a powerful statement that violence is wrong and should not be tolerated. Such a symbol contributes to the articulation of new social values and norms. It is much easier to inform a woman that the law provides protection from violence in the home rather than having to engage in an argument about the ‘right’ interpretation to verse 4:34 of the Qur’an on daraba.
Implications on rape in Malaysia: The JAG campaign on reform of the rape law has not been successful in re-defining the violation of women’s bodily integrity without her consent. Most feminist revisions on the law on rape has moved from the “penile penetration of the vagina” definition of rape.
“Sexual assault” in most jurisdictions where the law has changed, includes the introduction of any extent of the penis or objects or any part of the body into the vagina, the external genitalia, the anus or the mouth of another person.
One of the outcomes to this campaign was the amendment to the Penal Code which allows abortions where a medical doctor believes that the pregnancy would put the life of the pregnant women at risk, or injure her mental or physical health. This was intended to cover pregnancies as a result of rape or incest.
Support Systems
A change in the law is not an adequate strategy standing alone. In rape cases for instance, accompanying strategies may have to include education on of rape-trauma syndrome to lawyers or given by expert evidence in court.
For example, women who do not immediately report rape or sexual assault or tell even her family and closest friends about it is not ‘consenting’ to the crime.
The failure to reform the legal definition of rape in Malaysia is somewhat compensated for the institution of a one-stop centre in participating medical establishments for rape victim-survivors. The University Hospital in Kuala Lumpur operates one such centre. The Kuala Lumpur (KL) one-stop centre assists cases of domestic violence, child abuse and rape.
The centre works on:
· Recognizing and identifying the problem.
· Rescuing the survivor.
· Providing immediate management.
· Preventing further violence.
· Deterring the perpetrator and preventing the primary cause of the violence.
· Counseling and providing temporary shelter for the survivor
Rehabilitating the family in specific cases.
The services of the one-stop centre is contained in two rooms. One room facilitates registration and documentation. This includes history-taking, lodging of police report and counseling. The other room facilitates the medical examination. This includes the collection of specimens, specimen handling, processing, sealing and all other therapeutic procedures.
Professional staff is involved in the medical examination and police reporting. Civil society groups are involved in counseling and referrals to other institutions like the courts. In some cases, it may be necessary for NGOs to provide support by being in court during the trial or advising the victim-survivor of every court-room procedure and legal argument arising and the nature of the questioning that would take place. In Malaysia, not many lawyers are taking upon themselves this task.
WCC has produced a handbook, Working with Rape Survivors which essentially operates as an aid kit for NGO workers and volunteers.
Equality Models to Revisions in Law
There are two notions of equality for consideration in revisions to law; the formal equality model and the substantive equality model.
A formal model assumes that inequality can be remedied by treating all people in an identical manner and focuses primarily on equal opportunity or equality of access. Caselaw in the US and Canada applying this rational in their laws or in legal argument have shown that treating unequally situation people equally will serve to further entrench more discrimination.
The substantive model of equality creates equality of access and opportunity to ensure equality of result. This approach embraces special measures that have a differential impact on women and men as a way of addressing social conditions that generate discrimination. These measures are sometimes referred to as affirmative action.
This model involves examining law to determine whether it contributes to the social, economic or political inequality of the group in question. According to this model, equality is understood as sometimes requiring that individuals be treated differently. However this different treatment is not to be considered as an exception to equality but as a necessary part of equality. To reiterate this model is concerned with equality in result.
When applied to women and men in their gender differences, the substantive model recognizes that these differences in women and men whether natural or social, constitutes part of the real life experience of women and cannot be ignored.
A formal equality model or approach opposes special measures because treating groups of people differently is a form of discrimination. Supporters of the substantive equality approach argue that ‘discrimination legislation’ is requiredprecisely because social inequality flows from one’s membership of a group.
The Campaign Against Sexual Harassment
The proposed sexual harassment bill drafted by WCC for JAG on sexual harassment has drafted the law on the basis on a substantive model on equality.
The law first drafted in October 2000 has gone through several drafts through a series of consultations at several levels, with women’s groups, with trade unions and employer’s organizations and government agencies including the Ministry of Human Resources and the Attorney-General’s Chambers
This bill includes provisions where special measures or affirmative action are mentioned in the law and also negotiated (in the hearing of complaints) through a body established under the bill. For example the body adjudicating the complaint may order that the employer institute proper in-house mechanisms or grievance procedure on sexual harassment as part of an award. It is also envisaged that a responsible person or body under the bill develop on-going guidelines into a Code of Practice that would ensue as part of the mechanisms of enforcement under the bill. These are matters still under consideration and negotiation with all parties.
The legislation on sexual harassment is mooted as part of Malaysia’s obligations to eradicate all forms of discrimination against women upon its ratification of the Women’s Convention in 1995. The preamble to the bill reads as such.
Components of the Campaign
· Research on the prevalence of sexual harassment at the workplace.
· Research on the adoption of the Ministry’s Code of Practice on Sexual Harassment.
· Legal assistance where cases of ‘sexual molestation’ are initiated under the Penal Code by the Attorney General.
· Documentation of cases of unfair dismissal where sexual harassment was alleged.
· Public education on the issue.
· Training on feminist litigation for court interventions.
· Education/Training of lawyers and judges.
· Developing a ‘casebook’ of decided cases from various countries on legal issues raised in litigation or court arguments on equality issues.
Summary of Laws on Women’s Sexual Reproductive Health
Malaysia has not yet conducted a study of all relevant laws or policy on women’s reproductive health. Such a study is necessary as part of a more comprehensive understanding of how laws and policies have shaped women’s rights on reproductive health.
The following summary sets a guide on the type of law/policy relevant to the issue. These may be contained in one document/statute or scattered in several statutes or policies.
1. Constitutional provisions on right to health.
2. Law/Policy on family planning, contraception, contraceptive use.
3. Law/Policy on abortion, female infanticide, sterilization.
4. Law/Policy on STDs and HIV/AIDS.
5. Law/Policy on safe motherhood (e.g prenatal and perinatal care), surrogate motherhood, maternity benefits, discriminatory employment practices related to pregnancy, childbirth or related medical conditions and sexual harassment.
6. Embryo protection, cloning.
7. Law on rape and other sexual offences.
8. Child marriage law.
9. Domestic violence.
10. Patient’s rights, informed consent.
11. Right to Information, Confidentiality and Secrecy.
12. Healthcare financing, insurance, medi-aid.
13. Managed care.
14. Regulation of medical personnel, codes of professional conduct.
Final Remarks
We cannot have ‘unreasonable’ expectations of the law. Law is only a means to an end in the advancements of women’s interest or rights. Nevertheless it remains an important site in the construction of gender. One of the more reasonable expectations of the law, is its possibility in transforming the meaning of equality, gender and gender difference. Using law this way can challenge dominant meanings, re-construct meanings which would lead to our desired visions about women identities.
Sometimes in our struggle to reform the law, we lose sight of the processes and campaigns. The participation of women in articulating concerns and alternative visions may sometimes be as important as the desired end-law reform. It is as much the process of law, as the end result of law, that may be empowering for women.
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