This article will be divided into four segments. Each segment will be published two days apart for ease of digestion.
The first segment shall deal with the distribution of legislative powers between the federal legislature and the state legislatures in Malaysia. The second will consider the legal source of the issue at hand while briefly touching on certain policy considerations. The third will look into the constitutional aspects of the issue at hand. The fourth will assess Malaysia’s representations to the world, its international human rights obligations and the legitimate expectation of the people of Malaysia as well as other ancillary matters.
I was scrolling through the papers a few weeks back when I stumbled across an interesting piece of news. It was a news report published in the The Star on Dec 2 titled “Newlywed who gave birth faces legal action”.
The report states that a 21-year-old woman who gave birth to a baby girl 24 hours after her akad nikah was approached by a group of religious enforcement officers from the Jabatan Agama Islam Melaka (Jaim), while she was still in the Malacca Hospital, to take statements from her and her 28-year-old partner.
The Jaim chief enforcement officer, Rahimin Bani, said that the woman would be charged under section 54 of the Enakmen Kesalahan Syariah (Negeri Melaka) 1991 (En. 6/91) (”the enactment”) for being pregnant out of wedlock and her partner shall be charged under section 55 of the same enactment for being an accomplice in forbidden sexual intercourse. Anyone found guilty for either offence is liable to a fine not exceeding RM 3,000 or to imprisonment for a term not exceeding 24 months or to both.
I found all of this very disturbing indeed. For here you have a piece of law, section 54 of the enactment that is essentially criminalising the conception of a human being and imposing sanctions upon a woman for exercising her reproductive functions. In other words, what the Malacca state government is saying is “as a woman you have committed a crime by bringing another life into the Earth”.
Section 54 of the enactment, a state-enacted law, is in violation of Article 5 and Article 8 of the Federal Constitution. The fundamental liberties of the woman in this case are being trampled on.
But before we go into a discussion on fundamental liberties, there is much confusion among the public as to the source of power for federal and state law, so I shall dedicate this first (I) segment of this article to this nebulous area.
Malaysia is a country based on the federal model of government. Malaysia is a federation which consists of 13 states and three federal territories.
Briefly put, in a federal model, there is a central governing authority that makes all the big decisions that affect all citizens of Malaysia as well as the country. The source of federal legislative power resides in the Parliament. The laws passed will be called federal laws.
There are then 13 states which have their own respective governments which are led by chief ministers and whose source of state legislative power resides in the state assemblies (Dewan Undangan Negeri). The laws passed will be called state laws.
The Federal Constitution in the Ninth Schedule provides the subject-matter that both the Parliament and the state assemblies can make laws on.
Let’s have a look at some examples: In List I of the Ninth Schedule, the Parliament can make laws on external affairs (international treaties, conventions and agreements), defence (military and national service), internal security (prisons and police), civil and criminal law which affect all regardless of race or religion, citizenship, the machinery of government, finance, education, medicine, labour, publications, censorship, tourism, communication, transport, trade, commerce and industry, among many others.
A cursory glance at this list is enough to convince anyone that these are big areas of socio-political life that have a huge bearing on the life and liberty of Malaysians and the structure and direction of this country.
Now, let’s have a look at some examples of the state’s power: In List II of the Ninth Schedule, the respective state assemblies are able to make laws on land matters (Malay reservations, permits and licences, transfers, land tenure and acquisition), agriculture, forestry, municipal corporations, local services (burial grounds, markets, cinemas, etc.), works and water (roads and bridges), libraries, museums, the machinery of state government and Islamic law and personal and family law of persons professing the religion of Islam.
The list, as one would notice, is highly localised in nature. It caters to the community, history and culture of the respective states. It seeks to afford the state assemblies power to make laws that are most expedient and necessary for the citizens of that state.
There is also a List III where both Parliament and state assemblies have powers to make laws on but a discussion on List III will not be necessary for this article.
Thus, unless you live in Putrajaya, Kuala Lumpur or Labuan (the three federal territories), everyone is both a citizen of a state and a citizen of the federation.
It must be stated at this point that the Federal Constitution is the supreme law of the federation and any law that is enacted which is inconsistent with the Federal Constitution shall be void (Article 4). The word “law” after the word “any” in Article 4 relates not only to federal laws but also state laws (Article 160(2)).
What this means is that the states cannot make laws which are inconsistent with the Federal Constitution (FC). State laws must themselves be compatible with the fundamental liberties enshrined in the Constitution.
Let’s have a quick glimpse at what our fundamental liberties are; life and personal liberty (Article 5), prohibition of slavery and forced labour (Article 6), protection against double jeopardy (Article 7), right to equality (Article 8), freedom of movement (Article 9), freedom of speech and expression, assembly and association (Article 10), freedom of religion (Article 11), rights in respect of education (Article 12) and right to property (Article 13).
These gems (Articles 5-13) are guaranteed to all who reside in this federation regardless of ethnicity, religion or state. These are the gifts inherited by all Malaysians by the mere fact that they are Malaysians. We elect our legislators into power to ensure that they will protect these liberties of ours and in the event they falter, the judiciary must rise, without fear or favour, to protect those who have been discriminated.
Conclusion of Part I
I have laid out the distribution of legislative powers between the federal legislature and the state legislatures in a nutshell. I shall go on to consider section 54 of the Enactment in greater detail in the second segment of this article.
As an addendum to Part I, I must add a recent report was also published in The Star on Jan 2 involving a woman who sat on a 20cm-wide ledge outside a window on the fourth floor of a hotel to evade being caught during a Pahang Religious Department raid for khalwat.
This is indeed a pressing issue riddled with many questions for the consideration of civil society.
Are we to allow officials from the state to violate the privacy of the citizens of Malaysia? Do “raids” and measures such as these truly serve the purpose of curbing immorality? Are there other more humane and thoughtful ways of dealing with immorality e.g. advising, counselling and raising awareness? In fact, is sex between consenting adults even an “immorality”?
Will charging people for khalwat really solve the problem? Is there even a problem that needs to be solved? Should sex between consenting adults be an issue for the determination of states? Should the state be concerned with what people do with their bodies? Is a person’s personal thoughts, expression and sexuality a matter for someone else i.e. legislators or judicial officers, to decide?
Should we be policing what people do to each other consensually if they pose no direct harm to society? What moral superiority do we pose to make moral judgments on another human being? Are we to punish people for their religious sins now or should they be punished in the afterlife? Aren’t we all such sinners that we ought to just leave punishments to God?
It is also no place for the non-Muslims in this country to argue “Ini bukan aku punya pasal sebab aku bukan Islam”. We are all children of this federation. As long as one of us is hurt, we must stand up for that person.
Neither is it an argument for the Muslims to say “Ini hal Islam, bukan Islam jangan masuk campur”. As long as a person is being treated unjustly and inhumanely by the law, the people of this federation must rise against such unjust laws.
It is wise to remember, the battle against slavery and racism was won because all regardless of colour, ethnicity or religion stood up against it.
In the chilling words of Martin Niemoller (1892-1984) during the rise of the Nazis:
“In Germany, they came first for the Communists, And I didn’t speak up because I wasn’t a Communist; And then they came for the trade unionists, And I didn’t speak up because I wasn’t a trade unionist; And then they came for the Jews, And I didn’t speak up because I wasn’t a Jew; And then… they came for me… And by that time there was no one left to speak up.”
Criminalising Liberty (Second Segment) — Aston Paiva (loyarburok.com)
JAN 9 — Segment II of this article will look at section 54 of the Enakmen Kesalahan Syariah (Negeri Melaka) 1991 (En. 6/91) and certain policy considerations.
Let us consider section 54 of the enactment. I shall firstly reproduce it here in full:
“Seksyen 54. Hamil di luar nikah.
Seseorang perempuan yang didapati hamil atau melahirkan anak di luar nikah adalah merupakan suatu kesalahan dan apabila disabitkan kesalahan boleh dikenakan hukuman denda tidak melebihi daripada tiga ribu ringgit atau dipenjara selama tempoh tidak melebihi dua puluh empat bulan atau kedua-duanya sekali.”
Section 54 is passed by virtue of the Ninth Schedule List II of the FC which allows for State Assemblies to create offences and the punishment of those offences by persons professing the religion of Islam against precepts of that religion.
Section 54, in my contention would very clearly be criminal law, as it is found within the “Syariah Criminal Offences” of the state of Malacca. It is not, in my opinion, “Islamic Personal Law”, as might be argued by some, for if it was then it ought to be within the relevant Islamic Family Law Enactment of the state of Malacca.
Further, what lends credence to this is the fact that Islamic Personal Law is elaborated on in List I Item 4(e)(ii) of the FC as being laws relating to marriage, divorce, guardianship, maintenance, adoption, legitimacy, family law, gifts or succession, testate and intestate. This, I submit, is also the legal understanding of the phrase “Personal Law” and it does not entail a criminal sanction of any kind. Thus, section 54 would not be “Personal Law”.
Precepts of the religion of Islam
One might ask, what are “precepts of the religion of Islam”? That would be up to the determination of the relevant state legislators after, presumably, a series of rigorous dialogues with the office of the Legal Adviser of Malacca and Islamic officials and Islamic bodies namely; the Mufti, Jabatan Agama Islam Melaka, Majlis Agama Islam Melaka, His Royal Highness, Islamic NGOs, ulamas and jurists of as much schools of thought and theological backgrounds as possible (“the relevant parties”).
This is a very interesting process for we see an interplay between Islam and secular lawmaking under the FC. It is a very unique “coming together”. It seeks to extract the relevant Islamic precepts under the guidance and wisdom of the relevant parties with the participation of the office of the Legal Adviser of Malacca and the state legislators to see it passed consistently with the fundamental liberties enshrined under the FC. This is an extraordinary aspect about lawmaking within the states in Malaysia. It is in line with what Lord President Salleh Abbas (as he then was) said in Che Omar bin Che Soh vs Public Prosecutor  2 MLJ 55, when referring to the state of affairs after the British had arrived in Malaya:
“The development of the public aspect of Islam had left the religion as a mere adjunct to the ruler’s power and sovereignty. The ruler ceased to be regarded as God’s vicegerent on earth but regarded as a sovereign within his territory. The concept of sovereignty ascribed to humans is alien to Islamic religion because in Islam, sovereignty belongs to God alone. By ascribing sovereignty to the ruler, i.e. to a human, the divine source of legal validity is severed and thus the British turned the system into a secular institution. Thus all laws including administration of Islamic laws had to receive this validity through a secular fiat … the law in this country is still what it is today, secular law, where morality not accepted by the law is not enjoying the status of law.”
Of course, whether this “coming together” is indeed being done by the state legislators and the office of the Legal Adviser of Malacca with the relevant parties is questionable. Why is it an unconstitutional law like section 54 (and its equivalent in other states) continues to remain in the law books? And most importantly, how did it even make its way into the law books?
Clearly, the state legislatures in this country are not functioning as it ought to. This must be cured immediately through active advocacy by civil society groups, the Bar Council and the Federal Government.
Malaysia and Islam
Malaysia, as a country with a Muslim majority, has received a lot of attention from the rest of the world, particularly Europe, as well as a lot of compliments from Islamic nations. This, I would think, is driven by the fact that we were once extremely pluralistic, tolerant and broadminded in our ways.
I think what makes this country noteworthy is the fact that, since our independence, we have tried to sow Islam in accordance with the values, culture and principles of the people of Malaysia whether they be Muslims or not. It is part of our shared heritage; our diversity.
But, of course, that slowly began to change during the latter half of the Mahathir administration where, in my opinion, Islam was arrogated by politicians and used as a trump card against Western nations and their policies.
In wanting to adopt an “identity” predicated on “eastern values”, the Mahathir administration had sought to make Malaysia the very anti-thesis of a “Western liberal democracy”; curtailing civil liberties, removing political dissidents and policing morality, thoughts and behaviour among Muslims — all in an effort to cultivate a “holier than thou” disposition when compared to the “greedy”, “ignorant” and “arrogant” Western nations.
It is most unfortunate that the fallout of this vendetta against the West was the resultant spiritual penury and intellectual poverty among the Malaysian population.
Noticing this fallout, the Abdullah Ahmad Badawi administration began sowing the seeds of Islam Hadhari (Civilizational Islam), a progressive Islam, whose principles included “Freedom and independence to the people” and “Protection of the rights of minority groups and women”.
Sadly, in the quest towards establishing this moderate model of Islam, the Abdullah administration was inundated with allegations of corruption, political scandals and internal politicking. Islam Hadhari, from where I see it, was neither successful nor fruitful as an initiative. We are now in an unpredictable state of limbo where fervent religious extremists continue to utilise religious demagogy to exert pressure unto the lives of Muslims in this country; attempting to police morality, thoughts and behaviour under the guise of divine authority. This is a very dangerous and highly volatile situation. It will ruin all the ideals this country was built upon; our pluralism, tolerance and broadmindedness will dissipate.
We must always remember that the Federal Constitution is our final compass and regardless of ones religion or ethnicity, no one must be subjected to any law that violates the all-pervasive fundamental liberties enshrined within the Constitution.
Conclusion of Segment II
I must add, as a legal point, that Article 74(3) of the FC states that the power of the relevant state assemblies to make laws must be subject to the conditions or restrictions imposed by the FC and that the civil courts are at liberty to assess the constitutionality of such laws i.e. State Enactments (Latifah bte Mat Zin vs Rosmawati bte Sharibun & Anor  5 MLJ 101 @ Para 53 & 54).
In conclusion, when it comes to state- enacted Islamic laws, especially so syariah criminal laws, both state legislators and the relevant parties must work together for only then will there be no conflicts or inconsistencies with the FC thereby offering all Muslims in this country adequate protection under the State Islamic Laws and the Federal Constitution.
I shall be dealing with the unconstitutionality of Section 54 in the next segment of this article.
written by Katharina Sri (former: Noor Aza), January 09, 2010
Speak truthfully will you? I was censored in your blog yesterday; despite that I’m only targeting Dark Age Muslims, especially Al-Qaeda bred! Further, the Sharia ‘Laws’ have always been oppressive, way before Mahathir. How come if you are fighting for progressive Islam such as so-called Islam Hadhari, there are secretive concentration-camps like, where no relatives are allowed and surrounded by barbed wire such as in the notorious Ulu Yam rehabilitation camp in Selangor, to imprison ‘deviant’ Muslims, for minimum 6 months. Where such Muslims, if not jailed in normal prisons have to undergo ‘rehabilitation’ in becoming ‘true’ Muslims again! Including converts such as the case of the tortured Revathi – see http://www.indianmalaysian.com…icle&sid=5
I’m a convert myself to Christianity, and have to escape to Germany, since my sentence would be harsher, being a Malay! The rest of so-called ‘deviant Muslims including those detained for simply clubbing, for wearing ‘immoral’ dressing or for behaving ‘immorally’ – even in their private lives! Where are the brave so-called human rights lawyers, especially Muslims ones, to fight against such injustice towards such ‘deviant’ Muslims and non-Muslims like Revathi and myself. I’ve written to many lawyers but none are willing to take my case unless I pay up very high amount! Thus, at the moment, I’m campaigning through my writings – thank Christ for that! Anyway, my last point is – Why should I hide my Christianity as many had suggested if I want to stay on in Malaysia – it’s because as you said it, I simply find that the Sharia ‘Laws’ that criminalize my liberty is despicable!
Criminalising liberty (Third segment) — Aston Paiva (loyarburok.com)
JAN 12 — Right to Privacy – Article 5
In the recent Federal Court case of Sivarasa Rasiah v. Badan Peguam Malaysia & Kerajaan Malaysia Civil Appeal No. 01-8-2006(W) 17th November 2009, it was held that the word “personal liberty” in Article 5(1) of the Federal Constitution, which reads: “No person shall be deprived of his life or personal liberty save in accordance with law” and includes within its compass other rights such as the “Right to Privacy”.
I am in complete support this decision by the Federal Court. All State bodies and public authorities should be urged to adhere to this decision and to respect the constitutional “Right to Privacy” of the citizens of Malaysia.
Following international human rights norms and case laws from foreign jurisdictions, the “Right to Privacy” is a wide and encompassing right. The “Right to Privacy” is, succinctly put, the “right to be let alone”.
The purpose of such right is to secure conditions favourable to the pursuit of happiness while recognizing the significance of humankind’s spiritual nature, of its feelings and intellect; to protect people in their beliefs, their thoughts, their emotions and their sensations (Gobind v State of MP, (1975) 2 SCC 148)(Olmstead v. United States, 277 US 438 (1928)).
A citizen, by virtue of her personal liberty, has a right to safeguard the privacy of her own, her family, marriage, procreation, motherhood, child bearing and education among many other matters (R. Rajagopal v. State of TN, (1994) 6 SCC 632). Thus, in other words, the “Right to Privacy” would be a right for the individual, married or single, to be free from unwarranted government intrusion into matters so fundamentally affecting a person (Eisenstadt v. Baird, 405 US 438 (1972).
Matters such as pregnancy, child birth and sexuality are matters of great confidentiality and privacy. These matters involve important deliberations on part of a person with regards to their own body, well being and health. These are also matters which require a critical personal assessment on part of the person affected and the State should not be allowed to undermine a person’s decision or the autonomy one has over herself.
The woman and her husband in this case ought to be let alone to determine the status of their family life and marriage on their own. These are not matters for the State or for Jaim to decide but instead should be left to the personal consideration and private contemplation of the couple.
Any law that makes pregnancy and/or sexual intercourse between consenting adults an offence is both unjust and unconstitutional.
Of course, the next line of questions would be:
* Is it not the case that the sanction imposed upon her was in accordance with law? (following the words of Article 5 of the FC).
Indeed that would be the case. Section 54 of the Enactment is law.
* What is the meaning of the word “law” within Article 5?
For that, we must look at Article 160(2) of the FC which defines “law” as written law and the common law of England.
* Holistically speaking, what would “law” then encompass?
It would encompass the procedural and substantive dimensions of the Rule of Law; as AV Dicey highlights — that there be no arbitrariness, equality before the law and the Constitution is the consequence of the rights of individuals.
Thus, whatever law that is enacted must not be arbitrary, it must place everyone equal before it and be subservient to the fundamental liberties enshrined within the Constitution.
Having outlined these, we now proceed to the next area, where we see the principles of the Rule of Law beautifully entrenched within Article 8 of the FC in relation to “law”.
Equality – Article 8
Following Sivarasa’s case, it was held that, when a violation of a constitutional right takes place, Article 8(1) of the FC, which states that: “All persons are equal before the law and entitled to the equal protection of the law” will be engaged immediately in that the State action in question, might it be legislative, executive or administrative, must be shown to be fair and just and proportionate to the aims being sought.
Equal before the Law
In order to show whether one is placed ‘equal before the law’, it must be shown that a particular law is fair and just in that a person from one class is treated the same as another person from the same class (PP v Khong Teng Khen  2 MLJ 166).
It can thus be argued that Section 54 is unfair and unjust for it treats the pregnant Muslim woman in this case unfavourably compared to all other Muslim women that live in this Federation, as it imposes a criminal sanction upon her for being pregnant when such a sanction does not apply to other Muslim women.
This argument is taken under the basis that there ought to be no discrimination on a woman for being pregnant whether she is married or not. What she wishes to do with her own body is entirely her own prerogative. Nobody has the right to instruct her on how she should exercise her reproductive and bodily functions.
Equal Protection of the Law
Now, in order to show that one is being given “equal protection of the law”, it must be shown that the law in question is proportionate to the aims being sought i.e. the means must justify the end. One must not use a sledgehammer to crack open a nut. Laws must not be arbitrary.
It will thus be argued that Section 54 and the subsequent decision to prosecute the woman is disproportionate to whatever aim presumed to be sought.
If it is indeed the case that the Malacca State Government and Jaim intends to curb incidences of children being born out of wedlock in order to, presumably, preserve public morality, it would be far more proportionate an action to work with Jabatan Pelajaran Melaka to introduce sex education and gender studies in schools and universities to educate the youths on ethical behaviour and safe sex practices.
It would also be proportionate to the aim being sought for the Malacca State Government to work together with Jabatan Kesihatan Negeri Melaka, Jabatan Kebajikan Masyarakat Negeri Melaka and Pejabat Pembangunan Wanita Negeri Melaka to provide counseling to the public about family life as well as offering free contraceptives to increase awareness among the general public; positive efforts to reduce incidences of unwanted pregnancies, backdoor abortions and discarded infants (buang bayi).
Prosecuting a woman for being pregnant out of wedlock will not solve anything for the public still remains to be uninformed about matters pertaining to family life and safe sex practices. Further, the State government must also be mindful and respect the decision of the woman if it was her intention to have the child, whether she is married or not.
It is also the case that in the event the woman is found guilty and is sentenced to prison, her child would be deprived of a mother (and even a father if the man in the said case is also found guilty under Section 55).
Additionally, Section 54 is in violation of Article 8(2) of the Federal Constitution, which reads: “Except as expressly authorized 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.”
Section 54 of the Enactment is a provision of law that discriminates against women. As a provision of law, Section 54, aside from expressly referring to women also penalises women for exercising their reproductive functions; functions not exercised by men.
Comparatively speaking, this places women at a detriment compared to the men. A criminal restriction is placed on all women but no such restriction shall or will ever apply to men for the lack of such reproductive functions. In other words, a male can never be charged under Section 54. Such a law treats women unfavourably owing to their gender and their reproductive functions.
“Personal Law” Re-visited
There will also be no conflict with Article 8(5)(a) of the FC which states that Article 8 does not invalidate or prohibit any provision regulating personal law. I have stated in the second segment (II) of this article that I do not believe Section 54 is “personal law” for there is an imposition of a criminal sanction, taking it out of the ambit of “personal” and into the domain of the “public”. This is solely a criminal offence; an offence that is blatantly in violation of the fundamental liberties guaranteed by the FC.
Likewise, even in instances where people are arrested and prosecuted for close proximity/Khalwat, questions still remain:
1. Would invading a couple’s home/room in order to arrest them and charge them for being together violate their constitutional Right to Privacy?
2. Are such actions even proportionate to whatever aim is being sought, presumably, the preservation of public morality?
3. Should the State be concerned with actions done privately by consenting adults?
4. Are there other more pragmatic ways of trying to instil awareness among the Muslim population rather than treating them without dignity i.e. humiliating and embarrassing them, arrest, charging them, imprisoning and/or fining them?
5. Are Malaysian Muslims truly being afforded protection under the Federal Constitution?
These are questions that civil society must ponder on to reach a logical, rational and reasonable resolution.
Conclusion of Segment III
Jaim’s decision to prosecute the said woman would not only be contravening her Right to Privacy and her Right to be Free from Discrimination as enshrined by the Federal Constitution but it would also be disproportionate to the aims being sought.
At this point, it would be up to civil society and the relevant Women NGOs and Islamic NGOs to vehemently urge the State Legislative Assembly of Malacca to repeal Section 54 of the Enakmen Kesalahan Syariah (Negeri Melaka) 1991 (En. 6/91) for being unconstitutional and unjust.
In the fourth segment (IV) of this article, I shall be dealing with Malaysia’s representations to the world, its international human rights obligations and the legitimate expectation of the people of Malaysia as well as other ancillary matters.
Criminalising Liberty (Fourth Segment) — Aston Paiva (loyarburok.com)
JAN 15 — In the previous segment, we considered the the constitutional validity of Section 54. I shall now conclude with a consideration of Malaysia’s representations to the world, its international human rights obligations and the legitimate expectation of the people of Malaysia as well as other ancillary matters.
The Government of Malaysia has formally acceded to the Convention on the Elimination of All Forms of Discrimination against Women (CEDAW) on July 5, 1995. Under CEDAW, State Parties (SP) are to:
* accord to women equality with men before the law (Article 15);
* take all appropriate measures to eliminate discrimination against women in all matters relating to family relations and to ensure same rights and responsibilities as parents, irrespective of marital status, in matters relating to their children (Article 16(d));
* eliminate discrimination against women by; ensuring that public authorities and institutions shall not discriminate against women (Article 2(d));
* take all appropriate measures to eliminate discrimination by any person or organization (Article 2(e));
* modify or abolish existing laws, regulations, customs and practices which constitute discrimination against women (Article 2(f));
* take all appropriate measures in social and cultural fields to ensure the full development and advancement of women, for the purpose of guaranteeing them the exercise and enjoyment of human rights and fundamental freedoms (Article 3);
* ensure that women have sufficient access to specific educational information to help to ensure the health and well-being of families, including information and advice on family planning (Article 10(h)); and most importantly,
* ensure that family education is provided and this includes a proper understanding of maternity as a social function and the recognition of the common responsibility of men and women in the upbringing and development of their children (Article 5(b)). Nonetheless, as the constitution of Malaysia is dualist in nature i.e. it supposes a distinction between National Laws and Internationals Laws, and international conventions will not bind Malaysia as against the local populace unless and until the Malaysian Parliament enacts a domestic Federal Act to give international law legal effect domestically. An example is the Diplomatic Privileges (Vienna Convention) Act 1966 which Malaysia enacted on Dec 9, 1965 after ratification of the Vienna Convention on Diplomatic Relations on Nov 9, 1965.
Thus far, Malaysia has failed to enact any domestic law to give CEDAW legal effect. This is devious and crafty. While the Government boasts to the international community that it has ratified CEDAW, its own populace are deprived of the fruits of CEDAW owing to the Government’s refusal in enacting the enabling Act. Only with a loud yet focused support from civil society, the Bar Council and other international bodies can the importance of “Women’s Rights” be nailed into the heads of our lawmakers (especially those with thicker skulls).
But, one should bear in mind that aside from CEDAW, the Government of Malaysia has made numerous other representations to the world of its stand on eliminating discrimination against women and the upholding of human rights. We read about this in the newspapers all the time. We see it on the internet. We hear it over the radio. We watch it on television. These are information within the public domain. Surely all of this declarations and proclamations must or should mean something? Surely all of this confirms that we have a Government that truly does take an interest in international human rights affairs and the fundamental freedoms of its citizenry?
Surely, we as Malaysians have a legitimate expectation that when representations are made by the Malaysian Government that it is in support of international human rights norms, that it and its subordinate bodies as well as State bodies will not act inconsistently with those representations.
This issue came to great prominence in the phenomenal Australian High Court case of Minister of State for Immigration and Ethnic Affairs v Ah Hin Teoh (1995) 183 CLR 273. In that case, Mr Teoh, who had made an application for an entry permit into Australia, was married to an Australian citizen and had a number of children. He was convicted of an offence and was to be deported. Australia had ratified the United Nations Convention of the Rights of the Child (CRC) but there was no municipal law enacted to give CRC legal effect. It was held in that case:
“…ratification by Australia of an international convention is not to be dismissed as a merely platitudinous or ineffectual act? Rather, ratification of a convention is a positive statement by the executive government of this country to the world and to the Australian people that the executive government and its agencies will act in accordance with the Convention. That positive statement is an adequate foundation for a legitimate expectation, absent any statutory or executive indications to the contrary, that administrative decision-makers will act in conformity with the Convention and treat the best interests of the children as ‘a primary consideration’.”
In short, the Australian government had to consider the interest of the children and take into account the deprivation of their breadwinner and father must be taken into account before deciding to deport Mr Teoh. I must be very clear and state that this is not a backdoor measure of trying to enforce international law. It is simply a way of saying that the Government of Malaysia must be sincere in its representations to the world and to the citizens of Malaysia and must live up to its mandate. In other words, if it talks the talk, it is expected, that it will walk the walk. If the government does not intend to live up to its declarations it has no business making them.
It is under this ambit, that the woman vis-a-vis Section 54 is being unfairly treated. For a Government that has always laid claims to protecting the rights of women and to the empowerment of women, laws such as this should not exist within the Malaysian law books. Blatantly discriminatory laws like these should be repealed immediately so the woman cannot be charged.
Let us now take a look at some of the other representations made by Malaysia.
Malaysia adopted the Vienna Declaration shortly after the World Conference on Human Rights on 25 June 1993 where we gave our commitment to promote universal respect for, and observance and protection of, all human rights and fundamental freedoms for all in accordance with the Charter of the United Nations. More importantly, the Declaration also states in Paragraph 5 that while the significance of national and regional particularities and various historical, cultural and religious backgrounds must be borne in mind, it is the duty of States, regardless of their political, economic and cultural systems, to promote and protect all human rights and fundamental freedoms. This must be staunchly adhered to by all arms of the Federal and State Governments in this Federation.
Malaysia has also adopted the Beijing Declaration on Sept 15, 1995 at the Fourth World Conference on Women where we affirmed our commitment to ensure the full implementation of the human rights of women (Paragraph 9) and the empowerment and advancement of women, including the right to freedom of thought, conscience, religion and belief, thus contributing to the moral, ethical, spiritual and intellectual needs of women and men (Paragraph 12). Malaysia is also supposed to be convinced that the explicit recognition and reaffirmation of the right of all women to control all aspects of their health, in particular their own fertility, is basic to their empowerment.
Putrajaya Declaration and Programme Of Action on the Advancement of Women in Member Countries of the Non-Aligned Movement
This was adopted on 10 May 2005. Malaysia committed itself to:
“review and amend all laws in order to identify and eliminate negative traditional and customary practices that discriminate against women.” (paragraph 38(a)).
This is a bold commitment indeed, which unfortunately goes out the window with the prosecution of the woman under Section 54.
CONCLUSION OF PART IV
It now beckons upon various civil society groups, in particular Women’s NGOs and Islamic NGO’s to urge the Malacca State Government, Jaim and the Government of Malaysia to live up to the legitimate expectation of the citizens of Malaysia that they will act in accordance with the Articles in CEDAW, the Vienna Declaration, the Beijing Declaration and the Putrajaya Declaration.
It is of paramount importance, that the woman and the man in this case be allowed to lead their lives peacefully without any arbitrary interference from State authorities into their private and family life and that their fundamental liberties under the Federal Constitution be observed.
Is that not the least that we are all entitled to?
[[[ *** RESPONSE *** ]]]
Fabulous article, but when I asked this guy to endorse and run on the below ticket :
1) Freedom from Apartheid/Fascism
2) Freedom from Religious-Persecution/Religious-Supremacy.
3) Equality for all ethnicities and faiths in all aspects of policy, Law and Constitution.
(If not another), know what this guy said when asked to run for candidacy despite being a high minded article writer and trained lawyer? He asked that his own candidacy be paid for by someone. Real cynical.