COMMENT | The International Women’s Alliance for Family Institution and Quality Education (Wafiq) regrets that the Malaysian Bar has once again called upon the government to withdraw Malaysia's remaining reservations to the Convention on the Elimination of All Forms of Discrimination against Women (Cedaw) and the Convention on the Rights of the Child (CRC), as well as to ratify the Optional Protocol to Cedaw.

Wafiq believes that all international human-rights instruments should be reviewed with extra caution and not be treated as a blank cheque to rewrite Malaysia's constitutional, religious and family framework.

Wafiq has previously stated that international instruments such as Cedaw must be translated into Malaysia's domestic context, taking into account the Federal Constitution, Islam as the religion of the federation, and this country's diverse cultural circumstances.

Cedaw reservations

The Malaysian Bar demands that Malaysia immediately withdraw its remaining reservations to Articles 9(2) and 16(1)(a), (c), (f) and (g) of Cedaw.

(Article 9(2) concerns granting women equal rights with men with respect to the nationality of their children. Article 16(1)(a), (c), (f) and (g): equality between men and women in matters including marriage, divorce, guardianship and family relations.)

We emphasise that this issue cannot be reduced to a mere slogan that equates reservations to discrimination. Malaysia acceded to Cedaw in 1995. The question before Malaysia is therefore not whether Malaysian women deserve equality but how international obligations are to operate within Malaysia's constitutional and legal order.

Article 8 of the Constitution already provides equality before the law and equal protection of the law, while Article 11 protects freedom of religion. Article 3 recognises Islam as the religion of the federation.

These provisions form part of one constitutional document which cannot be selectively read. The reservations concerning nationality, marriage and family relations therefore involve matters touching directly upon citizenship, family law, syariah jurisdiction and the constitutional division of powers.

Wafiq has consistently warned against a wholesale treaty-ratification approach where constitutional, religious and cultural implications have not first been properly examined.

CRC reservations

The Bar also calls for the withdrawal of Malaysia's remaining reservations to the CRC. Wafiq believes those reservations intersect with questions involving citizenship, religion, nationality, family status, children born outside marriage, refugees, stateless children and indigenous or minority communities.

We highlight that the important distinction is that non-discrimination does not necessarily mean identical treatment in every legal context. A legal distinction can potentially be permissible if it has a legitimate and legally defensible basis.

Wafiq, through its mid-term report for the Universal Periodic Review (UPR), has previously highlighted real problems affecting children that require urgent attention, including exposure of children to pornography and malnutrition among children in low-cost housing.

We therefore support strengthening children's protection, but insist that treaty commitments be matched with resources, enforcement mechanisms and policies that actually improve children's lives.

Optional Protocol to Cedaw

The Bar calls for ratification of the Optional Protocol to Cedaw. Wafiq's position is that this cannot be treated as a mere administrative extension of Cedaw.

The Optional Protocol creates an additional international mechanism through which complaints concerning alleged violations may be brought before the Cedaw Committee, subject to its rules and admissibility requirements.

Before creating another avenue of international scrutiny, we believe that Malaysia should properly assess its relationship with our domestic courts, Parliament and existing mechanisms of legal redress.

Wafiq has repeatedly identified weaknesses in domestic redress.

For example, our own research found significant levels of sexual harassment among working women and that many women did not make formal complaints because they considered existing redress inadequate.

With the implementation of the Anti-Sexual Harassment Act in 2022, Malaysia proves itself to be able to create stronger domestic legislation and procedures without the need to ratify the Optional Protocol.

Women electoral candidates

The Bar calls for a statutory requirement that political parties field at least 30 percent women candidates.

Wafiq believes that women should not be treated as political tokens merely because they are women.

Leadership opportunities should be based on merits such as competency, integrity, principles, intellect, and emotional stability. Women deserve meaningful representation, not just numerical representation.

Minimum marriage age

Wafiq, through the Malaysian Alliance of Civil Society Organisations (Macsa), previously called for tighter regulation of underage marriage, but specifically rejected a one-size-fits-all approach that ignores Malaysian realities.

Wafiq's earlier UPR submission documented the difficulties surrounding underage marriage, particularly in Sabah and Sarawak, including problems involving customary marriages, marriage registration and the resulting documentation problems affecting children.

It also noted the relationship between underage marriage, poverty, education and family circumstances.

An absolute prohibition would drive vulnerable relationships underground, create unregistered marriages, leave children without proper documentation or produce unintended consequences for teenage pregnancy.

FGM

The Bar wants Parliament to prohibit and criminalise all forms of female genital mutilation (FGM).

We have previously addressed this issue and challenged the indiscriminate use of the term FGM to describe practices in Malaysia, arguing that Malaysian practices must be accurately distinguished from forms of FGM involving extensive surgical alteration practised in other contexts.

Claims that female khitan as practised in Malaysia causes significant physical or mental harm are not substantiated by robust specific evidence.

Wafiq believes that all parties, especially Muslims, should respect and adhere to the ruling passed by the Fatwa Committee of the National Council of Islamic Religious Affairs in 2009, stating that female circumcision is mandatory.

Citizenship and stateless children

Wafiq and Macsa have previously spoken strongly on the plight of stateless children.

Macsa welcomed efforts to allow stateless children access to national schools and called for transparent registration procedures.

It also specifically raised concerns regarding children in Sabah and the issuance of documentation such as IMM13 passes.

Children born in Malaysia should not be denied access to citizenship and registration merely because documentation or geographical access creates obstacles.

Refugee and asylum-seeking women, girls

The Bar calls for legal status for refugees and asylum seekers, formal work rights, education and healthcare, together with an explicit statutory non-refoulement obligation.

Wafiq recognises that refugees and stateless persons are human beings whose basic rights deserve protection regardless of their gender.

However, Malaysia is not a party to the 1951 Refugee Convention and its 1967 Protocol.

Therefore, Parliament must determine a Malaysian refugee framework that balances humanitarian obligations with national security, immigration control, border management, and Malaysia's responsibilities to its own citizens.

Anyone fleeing conflict or persecution should not be treated without humanity. But neither should refugee policy be developed as though the state has no legitimate interest in controlling its borders.

Anti-discrimination bill

Wafiq has already called for stronger legal protection against discrimination against women.

In our UPR submission, we recommended strengthening the Employment Act, Industrial Relations Act and Occupational Safety and Health legislation.

Wafiq also suggested the proposed Equality Act to protect women against discrimination while expressly stating that such legislation must comply with domestic law and take cultural sensitivities into account.

We find it dangerous when the Bar proposes legislation prohibiting direct, indirect and intersecting discrimination “on any grounds whatsoever” in both public and private spheres because those wording demands careful scrutiny.

Wafiq's own position has been that legislative terminology must be sufficiently clear and precise, with all substances of constitutional law being addressed, to prevent contested concepts from becoming vehicles for unintended legal consequences.

A women's equality law should protect women. It should not become a Trojan horse for importing unrelated ideological disputes into Malaysian laws.

WAFIQ is a civil society organisation focused on empowering women, preserving family values, and promoting holistic education.

The views expressed here are those of the author/contributor and do not necessarily represent the views of Malaysiakini.