COMMENT | Women's equality, children's rights belong in Constitution and family life

COMMENT | “Blank cheque”. “Trojan horse”. These warnings from a group frame the Malaysian Bar’s call for stronger protections for women and children as a threat to the Federal Constitution, religion and families.

Behind the alarming language are people seeking basic protections: a mother securing her child’s citizenship, a woman pursuing maintenance, a girl whose future is being negotiated through marriage.

What threatens a family more: a woman demanding justice, or a system that leaves her struggling to obtain it?

The Bar’s proposals deserve scrutiny. So do the arrangements their critics insist on preserving. Invoking religion, culture and constitutional compatibility does not explain how those arrangements protect the people living under them.

Malaysia accepted Cedaw - the Convention on the Elimination of All Forms of Discrimination against Women - in 1995. Its remaining reservations concern children’s nationality and women’s rights within marriage and family life.

Article 9(2) addresses equal rights concerning children’s nationality. The reserved provisions of Article 16 cover entering marriage, rights during marriage and divorce, guardianship and related responsibilities, and personal rights such as choosing a profession or occupation.

Which unequal treatment should remain, and why? That is the question defenders of these reservations must answer.

READ MORE: COMMENT | Cedaw must not supersede Malaysia's constitutional, family order

The Cedaw Committee’s 2024 recommendations include withdrawing reservations, strengthening equality legislation, improving representation, ratifying the Optional Protocol, ending child marriage and criminalising all forms of female genital mutilation (FGM).

It also recommends bringing domestic law into compliance with Cedaw and giving the convention precedence where national laws conflict with it.

These are substantive proposals requiring debate and constitutional implementation. The recommendations do not themselves amend Malaysian law.

Reading the Federal Constitution as a whole includes Article 3’s recognition of Islam and Article 3(4)’s preservation of other constitutional provisions.

Article 8 guarantees equality, while Article 8(5)(a) states that the article does not invalidate or prohibit provisions regulating personal law.

This qualification must be acknowledged; it does not require existing family laws to remain unchanged.

The division of legislative powers determines who may legislate. It does not relieve lawmakers of responsibility for examining the consequences of their laws.

Faith provides grounds for that examination too. Marriage’s Quranic ideals of “sakinah”, “mawaddah” and “rahmah” - tranquility, affection and mercy - should find expression in women’s security and dignity.

How are they served when a woman cannot secure maintenance or leave a harmful marriage? Any defence of the family must answer to the women living within it.

Vulnerability doesn’t confer adulthood

Poverty, pregnancy, customary marriages and documentation difficulties, particularly in Sabah and Sarawak, are cited against an absolute minimum marriage age.

These circumstances explain vulnerability. They do not establish readiness for marriage.

A girl does not acquire maturity or bargaining power because her family is poor. Pregnancy does not make her financially independent. Judicial permission cannot supply the education, safety, or freedom she needs.

If the concern is that banning child marriage will drive it underground, allowing children to marry does not address the poverty, pregnancy or documentation problems pushing them towards marriage.

Malaysia should set the minimum marriage age at 18 without exceptions across all marriage systems, and provide the support needed to make that protection effective.

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This includes assistance for struggling families, healthcare and continued schooling for pregnant teenagers, and accessible birth registration.

Unicef’s Malaysia-specific recommendations address these pressures alongside legal reform.

Malaysia’s reservations to the Convention on the Rights of the Child concern non-discrimination, name and nationality, freedom of thought, conscience and religion, free compulsory primary education, and safeguards against torture and deprivation of liberty.

Different needs may justify additional assistance; exclusion requires its own justification.

Malnutrition and exposure to pornography demand urgent action alongside these protections.

Child’s body deserves protection too

Defenders of FGM distinguish Malaysian practices from extensive procedures elsewhere. The World Health Organization (WHO) already distinguishes the forms, including non-medical pricking and incising.

It recognises greater risks with more extensive cutting and identifies no health benefits from FGM.

The 2024 booklet “Khatan Perempuan: Selamat atau Tidak”, jointly produced by the Asia Network to End FGM/C, Malaysian Doctors for Women and Children, and Sisters in Islam, now known as SIS Forum (Malaysia), describes reported experiences of temporary pain, minor bleeding, and painful urination.

It states that no long-term complications were reported in the research discussed and acknowledges limited national data. These limitations cannot establish safety.

Religious opinion is not uniform. In 2022, the Indonesian Women Ulama Congress (Kupi) issued a fatwa declaring female genital cutting without medical reasons forbidden.

Citing the 2009 Malaysian ruling does not settle the discussion. Why should a child undergo a procedure with no medical benefit and no ability to consent?

Women must help shape answers

Women should have a greater say in the laws governing their lives. Empower’s Projek30%, alongside the Association of Women Lawyers, Joint Action Group for Gender Equality (JAG), Bersih and CSO Platform for Reform, seeks a requirement that political parties field at least 30 percent women candidates.

Its campaign addresses barriers to nominations, networks and resources.

Calling this tokenism avoids examining who gets selected and supported. Merit requires access to the contest.

Parties should recruit capable women, back their campaigns and nominate them in viable constituencies. Voters still decide whom to elect.

The benefit extends beyond numbers: more women can help shape budgets and decisions about care, employment, safety and family life.

Representation also creates opportunities to hold institutions accountable for what their laws deliver.

That accountability matters when women cannot obtain redress. Acknowledging that inadequate remedies discourage sexual-harassment complaints strengthens the case for additional scrutiny.

The Anti-Sexual Harassment Act is progress; it cannot address every form of discrimination.

Under the Cedaw Optional Protocol, complainants generally must exhaust available domestic remedies, unless those remedies are unreasonably prolonged or unlikely to provide effective relief.

Committee examination and recommendations can support domestic efforts to secure justice.

Protection must reach the underprivileged

Support for stateless children’s schooling and registration is welcome. It should translate into dependable access, with practical solutions to administrative and geographical barriers.

Birth registration and citizenship are distinct questions.

For refugees, a legal framework can combine security screening with lawful work and essential services, reducing vulnerability to exploitation.

Protection against return to persecution is recognised in customary international law, regardless of accession to the Refugee Convention. Border management and these safeguards can coexist.

An equality law likewise needs clear definitions and effective remedies. It must address explicit exclusion, seemingly neutral rules that disadvantage women, and discrimination compounded by disability or other circumstances, in public institutions, private employment and services.

If proposed wording creates uncertainty, identify the defect and propose a correction. “Trojan horse” is an accusation. It is not a legal analysis.

Women’s equality belongs in our Constitution and family life. Women and children should not have to prove that their dignity poses no threat before their suffering warrants reform.

AMEENA SIDDIQI is the communications manager at SIS Forum (Malaysia). With a background in publishing, media, and public advocacy, she works to amplify the voices of Muslim women and challenge unjust interpretations of Islamic law.

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

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