It seems remiss that women's groups in its current lobby against the hudud law in Terengganu have not placed before the public, the implications of Malaysia's international obligations under the UN Convention on the Elimination of All Forms of Discrimination Against Women of 1981 or Cedaw

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Malaysia is party to Cedaw since July, 5 1995. The Kelantan hudud law was passed by the state legislature before 1995, on Nov 25, 1993. Still, Malaysia is bound under Cedaw to eliminate all forms of discrimination upon being party to the convention. Discrimination is one of the premises of the objections raised by women's groups.

The ruling government's first treaty obligation is to file its report to the committee under the convention. The first report was due some six years ago, in Aug of 1996. It remains outstanding.

This befuddles us all as there are more women-centred government departments standing on their own, or placed under specific ministers or placed under the prime minister's department than you can count on one hand. This is not to mention the number of women's groups that are practically subsumed into the state machinery as 'auxiliaries' or in effect an extension of the women's wings of Barisan Nasional through close affiliations, patronage and funding. Perhaps the exuberance in strengthening the party machinery as 'politics' has but all eclipsed concerns under Cedaw.

Pith and substance

Malaysia filed reservations upon signature, ratification and accession to the convention. In Feb 1998, she withdrew her reservations to articles 2 (f), 9(1), 16(b), 16(d), 16(e) and 16(f).

Article 2(f) relates to the taking of "all appropriate measures, including legislation, to modify or abolish existing laws, regulations, customs and practices which constitute discrimination against women". Article 9 relates to equal rights to nationality and Article 16 relates to family matters.

Indeed the withdrawal of reservations to article 2(f) is commendable as the article represents the pith and substance of Cedaw. Furthermore, the Vienna Convention on the Law of Treaties does not allow reservations that are not compatible with the object and purpose of the convention in question.

Cedaw reiterates this principle of non-derogation in article 28(2) which states that "a reservation incompatible with the object and purpose of the present convention shall not be permitted."

Malaysia however retained her reservations to articles 5 (a) (elimination of prejudices and customary practices which stereotype men and women), 7(b) (holding public office and performing public functions) and 11 (discrimination in employment).

There is also the retention of a broad reservation which reads

, "The government of Malaysia declares that Malaysia's accession is subject to the understanding that the provisions of the Convention do not conflict with the provisions of the Islamic Shariah law and the Federal Constitution of Malaysia".

Conundrum

A plain reading of the broad reservation puts the regime in a conundrum in relation to its protestations to the hudud state law passed by the PAS state government in Kelantan and Terengganu.

There are now more questions than the attorney-general who prepared the advice to the UN is prepared to answer.

What exactly is Malaysia saying to the international community and her own people? Are both the syariah and the Federal Constitution supreme? Is the Federal Constitution subject to the syariah or the other way round? What is, by the way, the "Islamic Shariah "? The tired political rhetoric of an 'Umno Islam' and 'PAS Islam' is not quite dead yet.

This 'political Islam' between the two manifested as a contest of who gets to rule or stay in power through the vote, detracts from the internal discourse that is crucial to the debate of the nature of our political system. This does not appear to be the concern of politicians.

Running international conferences on Islam from time to time for a Malaysian elite without the political will to set in place concrete measures to embody the spirit of the social contract of the Merdeka Constitution for the masses, is like "hitting a snake with a clothes-peg" to quote from the late Justice Eusoffe Abdoolcader.

Objections to reservations

Several states parties raised objections to Malaysia's reservations. Finland's early objections to Malaysia's reservations for example, merit empathy. These continue to be relevant in our present context.

Finland in part, stated that, "The reservations made by Malaysia, consisting of a general reference to religious and national law without specifying the contents thereof and without stating unequivocally the provisions the legal effect of which may be excluded or modified, do not clearly define to the other parties to the convention the extent to which the reserving state commits itself to the convention and therefore creates serious doubts about the commitment of the reserving state to fulfill its obligations under the convention. Reservations of such unspecified nature may contribute to undermining the basis of international human rights treaties."

Women's groups battling against PAS could do well to also take stock of the regime's position in these reservations to Cedaw.

It is of course easy enough to find a scapegoat in the attorney-general, the advisor to the government whose officers prepared the legalese; servants not quite attuned to the caprice of their political masters.

I remember that just prior to the 1999 general election, Deputy Premier Abdullah Ahmad Badawi intimated that the BN government would introduce women as syariah court judges. This campaign promise runs counter to Malaysia's reservation to article 7(b) which reads, "With respect to article 7(b) of the convention, the government of Malaysia declares that the application of said article 7(b) shall not affect appointment to certain public offices like the mufti , syariah court judges and the imam which is in accordance with the provisions of the Islamic Shariah law." These posts are regarded under the Islamic law as applied in Malaysia as male posts only. There is no indication to the date of the lifting of this reservation.

Making mud

There are altogether 30 articles to Cedaw. There is also the optional protocol

to Cedaw which Malaysia has not yet signed. The optional protocol enhances the accountability of states parties to the obligations of the convention by instituting an inquiry procedure which allows women to seek redress by submitting individual communications.

While it is easy enough to check the hudud law provisions against the convention, the more important question is whether the present government together with parliamentarians which includes the opposition, are making mud of Cedaw in their respective stands on hudud . Are parliamentarians at all aware of their obligations to the international community? We ought to be concerned as to how we as ordinary Malaysians and voters can hold them accountable to human rights treaties.

Statements like the one attributed to Rais Yatim the de facto law minister, that the people will decide, are hardly responsible taking into account the fact that it is governments and not people who are accountable to treaty obligations which serve to protect the people.

There is of course the Human Rights Commission of Malaysia (Suhakam) which is among others, mandated to advise the government and secure protection of human rights abuses. However between the plaintif cry of, "There is nothing we can do" (to the concerns of students of the Universities and University Colleges Act), and the latest directive that a complainant to Suhakam must have to first suffer damage before a complaint can be lodged (as reported when students lodged a memorandum of the Akujanji or pledge of good conduct), it is doubtful if Suhakam would be that 'phoenix rising from the ashes' in offering protection from the increasing incursions to our rights, freedom and liberty.

SALBIAH AHMAD is a lawyer and an independent researcher. MALAYA! as the name for this column was inspired by the meaning of "Malaya" in Tagalog which means freedom. The events at the end of 1998 in KL offer a new inspiration. MALAYA! takes on the process of reclaiming the many facets of independence.