Noun 1.

raison d'etre - reason for being

rationalization, rationalisation - the cognitive process of making something seem
consistent with or based on reason
2. raison d'etre - the purpose that justifies a thing's existence
function, purpose, use, role - what something is used for; "the function of an auger is to
bore holes"; "ballet is beautiful but what use is it?"
Am I naive to expect equality in Malaysia?
 Malaysian for Equality
 4:00PM Feb 25, 2008

A country without equality for all is a country without conscience. For many decades,
non-Malay Malaysians have been living amidst the NEP and see the bumiputeras
getting scholarships, university places, business licenses, government jobs, etc., that
are almost unavailable to non-bumi Malaysians. Non-bumis ask, ‘Why is this
happening and continuing to happen; are not all Malaysians equal? Non-Malay
Malaysians have for decades been unable to explain to their children why the colour
of skin matters so much in Malaysia.

Why are colours of skin and names used to separate Malaysians? How can non-bumi
Malaysians explain to their children that meritocracy does not count but colour of
skin does? Why are there so few bumi Malaysians speaking out against this
inequality that has been occurring for almost four decades? I believe the non-bumis
thought it will end after a short period of time so they said, ‘It is alright. Just tolerate
for a few more years’. But it looks like the NEP and Ketuanan Melayu will go on and
on. When will this end? Can someone from Umno tell Malaysia when it will end?

I know it is a dream but is it wrong for all Malaysians to dream of equality for all? Is
this illegal and morally wrong in Malaysia? Why should Malaysians be arrested under
the ISA if they wish to see a Malaysia that upholds equality for all? Why would Malay
politicians who champion equality for all like Anwar Ibrahim be branded a ‘traitor’ by
his fellow Malays?

Should not all conscientious bumiputeras support equality for all? Surely, there are
poor Malays, Chinese and Indians. We should help them based on income and not
implement polices based on the colour of one’s skin. Why do politicians from the MCA
and MIC not tell their Umno brothers to go for equality and meritocracy? Is equality
morally wrong? How can someone from MCA and MIC be elected representatives and
not champion equality for all? I do hope they can explain this to their fellow
Malaysians.

I really want to know why they are in government and not championing equality. Am
I being naVve to expect equality in Malaysia? What is it that I do not know? Is the
present situation favoring the bumis crucial for national security? Please educate the
non-bumi Malaysians on this.

Why would Umno not uphold equality for all Malaysians? Our country will move by
leaps and bounds if we remove the disunity that is being caused by politicians talking
about Ketuanan Melayu (or Malay supremacy) and the NEP.
The international and local media keep on painting the picture that Chinese
Malaysians control a big portion of the Malaysian economy. Are they behind time or
getting the wrong statistics? Perhaps there are a few (only a few) rich Chinese who
are lucky to have dominant stakes in Malaysian economy. They are the exceptional
few. I get together with my Chinese friends from high school from time to time and
they were all good students in secondary school based on their MCE and HSC
examinations.

Many could not afford to go to universities and could not get places even though
they qualified. None of them are making the big money and many are struggling in
their businesses and jobs to making ends meet. Where are the many rich Chinese?
Who is really controlling the Malaysian economy today? Is it really the Chinese who
are dominant in the economy? I beg to differ.

There are only a few rich Chinese. The rest are struggling to keep afloat as they have
to work hard to save and pay for the education of their children overseas or in
twinning programmes. How can the majority of Chinese and Indians and their
children look forward to the future when Umno will be returned to power with a big
majority and Umno leaders will continue to champion Ketuanan Melayu and the NEP
so that they can keep their power bases? Meritocracy and equality are unheard of in
Umno general assemblies.

Why would so few bumi professionals come forward and support equality when they
have studied in the US, UK, Europe, Australia, etc.? Why would championing equality
lead to jail for some? Why wouldn’t bumi professionals and politicians embrace their
fellow Chinese and Indian Malaysians and tell them we are one nation where
everyone is equal under the Malaysian sun?

Malaysia will certainly leap to greater heights if all Malaysians go for equality,
embrace meritocracy and really implement policies that are not race-based but
Malaysian-based. You will see a very strong Malaysia that would be the envy of its
neighbors. Malaysians of all races are smart, hard-working, and educated and when
they come together and work together, they will create synergies and create more
economic growth that will propel our country to great heights.

Malaysians have unfortunately been living under a very strange system for so many
decades where equality is not being supported by governmental institutions. Why is
that so? Can we allcome forward and support equality for all Malaysians regardless of
race, gender, background, religious belief etc? Can divisions and disunity stop? If
there are poor Malaysians, by all means help them.

I really look forward to the day when all Malaysians are together as one nation and
all Malaysians are indeed equal under the Malaysian sun. As Martin Luther King, said,
‘I have a dream’. All Malaysians should strive for this ‘equality’ dream.

@@@@@@@@@@@

Gender Equality under Article 8: Human Rights, Islam and

"Feminisims" by Salbiah Ahmad
T h u r s da y, 1 7 No ve m be r 2 0 0 5 0 5 :0 0 p m
 GENDER EQUALITY UNDER ARTICLE 8: HUMAN RIGHTS,

ISLAM AND “FEMINISMS”

By ©Salbiah Ahmad*

*LL.B (Hons.) University of Singapore, Masters in Comparative Law (International Islamic

University, Malaysia), Dip. Shariah and Administration (IIUM), Recipient of fellowship from the Islam

and Human Rights Fellowship, Religion and Law Program, University of Emory Law School, Atlanta,

GA, USA (2003-2004) and the Southeast Asian Scholars and Public Intellectuals Fellowship (SEAF)

of the Institute of Malaysian and International Studies (IKMAS), National University Malaysia,

2000.

Synopsis

This paper explores the term gender under Article 8 (2) of the Federal Constitution. Art. 8 (2)inter

alia provides that there shall be no discrimination on the basis of gender “except as expressly

authorized by the Constitution”. The principle of gender non-discrimination is premised on the

fundamental principle of equality, a principle enshrined in Art. 8 (1). Gender equality has a global

jurisprudence to mean both “sameness” and “difference”, notions included in a substantive equality

standard which prioritizes equality of opportunity and outcomes. These issues remain unexplored in

local jurisprudence. The paper also looks at equality in human rights and in Islam, as the latter

factor continues to inform politics, policy and law in Malaysia. An understanding of these premises is

crucial to the realization and implementation of the principle of equality. The State is committed to

protect and guarantee the principle of equality under the Constitution and under her international

obligations under principal human rights conventions. Malaysia, since 1995, is party to the

Convention on the Elimination of All Forms of Discrimination Against Women.

Introduction

The principle of equality is the most fundamental of human rights and has been described as the

“starting point of all liberties”.[1] International human rights law reflects this belief. Art.3 of the

Universal Declaration of Human Rights, 1948 (UDHR) declares that all human beings are born free

and equal in dignity and rights. The UDHR is not a treaty but it embodies a moral authority and sets

out a common standard of achievement of all peoples and nations.[2] The UDHR is the root
document from which the international human rights treaties have grown.

The International Bill of Rights comprises of the UDHR, the International Covenant on Civil and

Political Rights (ICCPR) and the International Covenant on Economic, Social and Cultural Rights

(ICESCR).

The ICCPR and the ICESCR are binding international treaties of which Malaysia is not a party to. The

ICCPR obliges States Parties to guarantee in law the same civil and political rights that appear in the

UDHR and to provide the means of fully enforcing them. The ICESCR obliges States Parties to

progressively realize social and economic rights.

The Convention on the Elimination of All Forms of Discrimination Against Women, 1979 (CEFDAW) is

a women’s rights instrument. It contains elements of both civil and political rights, and economic,

social and cultural rights. Malaysia has signed and ratified CEFDAW in 1995. [3]

It was in furtherance to Malaysia’s commitment to CEFDAW that Art. 8 (2) of the Federal

Constitution was amended in July 2001 to include gender as a basis for non-discrimination.[4]

Sex And Gender Theory

Art. 8 (1) of the Federal Constitution reads: All persons are equal before the law and entitled to

equal protection of the law.

Art 8 (2) 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 orgender in any law or

in the appointment under a public authority or in the administration of any law relating to the

acquisition, holding or disposition of property or the establishing or carrying on of any trade,

business, profession, vocation or employment. (emphasis added).

Art. 1 of CEFDAW reads: For the purposes of the present Convention, the term “discrimination

against women”, shall mean any distinction, exclusion or restriction made on the basis of

sexwhich has the effect or purpose of impairing or nullifying the recognition, enjoyment or exercise

by women, irrespective of their marital status, on a basis of equality of men and women, of

human rights and fundamental freedoms in the political, economic, social, cultural, civil or any other
field. (emphasis added).

It is useful to clarify key terms.

Sex refers to the biological distinctions between men and women, the most obvious differences

being the reproductive organs. To use sex as a variable means to ask whether it makes a difference

whether the actor or subject is (biological) male or (biological) female. In gender theory, this ought

to mean asking whether biological differences alone (be they hormonal, muscular or variations in

height/weight/body etc) make a difference.

Gender is a more complicated concept than sex. Where sex is about maleness or femaleness

(measured in biological difference), gender is about masculinity and femininity, measured in socially

constructed and contextually contingent ideas about what attitudes and behaviors correspond to

ideal-type maleness or femaleness. Gender rests not on biological sex differences but on

interpretations of behavior that are culturally associated with sex differences.[5]

Gender theory refers to the conceptual framework feminists have invented. Whatever its different

prescriptions, feminism is a politics of protest directed at transforming the historically unequal

power relationships between women and men. While feminist theory would not be possible without

use of gender as an analytical tool, the use of gender theory does not by itself constitutes a feminist

approach. What is uniquely feminist is the assumption and critique of women’s oppression.[6]

As gender is socially constructed, this means that it varies across cultures, times and between

members of the same sex and varies between the sexes.[7] This means that there is nothing natural,

inherent or biologically inevitable about social attributes, activities and behaviors that come to be

defined as either masculine or feminine.

The underlying aim of the principle of gender equality (when it references women)[8] is the

eradication of the disabilities that are imposed on women based on cultural definitions of her role in

society, and not merely discrimination based on her biological-reproductive capacity or other

biological traits.[9]

Women’s ability to exercise her rights is shaped not only by social constructions on sex differences,

but also factors such as class, race, ethnicity, the role of the state in constructing gender ideologies
 and relations of power.

The inclusion of gender in Art 8 (2) read with Art. 8 (1) provides for the following:

i. non-discrimination against females on the basis of cultural definitions of her role in society;

ii. non-discrimination against females on the basis of her biological sex difference;

iii. non-discrimination against males on the basis of biological sex differences and interpretations of

behavior that is culturally associated with sex differences.

Thus the women’s lobby has enshrined gender theory[10] (which includes feminist theory of women’s

oppression and gender theory which includes viewing men as a subject of oppressive gender

constructs), into the equality clause in Art. 8.

PART 1

Feminist Legal Theory

The issue of what constitutes equality for women and how they can achieve it is the heart of the

feminist project.[11] Feminist legal scholarship is the process or development of using law to

improve the position of women or to eliminate the constraints of gender on both sexes.

(i) Formal Equality Model

Formal equality assumes that equality is achieved if the law treats likes alike. Put in another way,

an equal protection guarantee required only that similarly situated classes be treated similarly.

Equality in this model is equated with sameness.

Only individuals who are the same are entitled to be treated equally. For example, qualified female

and male lawyers may be admitted to the legal profession. As lawyers with the requisite

qualifications, both male and females arguably are similarly situated. In this situation, it may be

argued that there are no differences between male and female lawyers. This formal equality model

has secured positive changes for women.

What if women and men are not similarly situated? For example, a term of employment allows the

dismissal of female airline stewardesses who are pregnant. Here males and females are not similarly

situated because only females can get pregnant as that is a sexual-biological difference between

males and females.

Pregnant females can be dismissed under this standard. Males are never pregnant, so the question

of dismissal on pregnancy does not arise. Females may argue that this discriminates between sexes.

Under the formal equality model, this is not discrimination as like is treated alike.

Under this equality model, pregnant females and males are not the same, so different treatment

(dismissal) is not discrimination. Put in another way, if pregnant females expect to be treated the

same as man then they should not get pregnant. If they expect to be treated differently when

pregnant, that is discrimination.

But females get pregnant. Preventing females from pregnancy is a condition which discriminates.

Feminists argue that under the sameness standard, women are always measured against men.

Gender neutrality is simply the male standard.[12] Advantaged groups establish the norms for

comparison. Women can fail the similarly-situated test by having a characteristic that is unique, or

by being designated as “different” simply because they are relatively disadvantaged.

Thus when women and men are not identically situated as in the pregnancy example, the formal

equality model does not help. In fact, it perpetuates discrimination. Women can be like men in the

workplace (when they are not pregnant) but they can undergo reproductive experiences which can

make them different.

Treating women the same as men or different from men (men as the comparator) do not produce

satisfying results for women’s equality. To the extent that women are not like men or because

society has assigned them a subordinate status, they cannot achieve equality through the

application of formal equality.

(ii) Substantive Equality Model

The focus of a substantive equality model is not simply with equal treatment under the law. The
 focus is not sameness or difference, but rather with disadvantage.

The central inquiry of this model is whether the rule/practice in question contributes to the

subordination of the disadvantaged group (women). Under this model, discrimination consists of

treatment that disadvantages or further oppresses a group that has historically experienced

institutional and systemic oppression.[13]

A substantive equality model is concerned with two factors:

i. equality of opportunity (and access)

ii. equality of outcomes.

In realizing these twin objectives, women are not to be discriminated against because they are

different to men. Differences are acknowledged.

However, the focus is not on whether women are different, but rather whether their treatment in

law contributes to their historic and systemic disadvantage. Within thus model of equality,

differential treatment may be required, not to perpetuate existing inequalities but to achieve and

maintain a real state of effective equality.

In the pregnancy case, pregnancy cannot be penalized (dismissal). Such a term of employment is

discriminatory because it does not recognize difference.

A substantive equality approach would require for example that an employer provide a temporary

change of work location or duties for pregnant women (if her current duties might prove

unsafe/hazardous) and a right of the employee to return to her former position following maternity

leave. Thus different treatment or affirmative action may be required in a substantive equality

approach to prevent discrimination.

As a substantive model of equality aims to correct structural discrimination, it makes no distinction

where that discrimination takes place, whether in the private realms of the family or in the

marketplace. Equality measures do not address just the law, it has to address the economic, social

and political dimensions of the disadvantaged.

The Interpretation Of Equality Under Art. 8

Art. 8 (1) and (2) do not tell us about the specific content of equality. While equality is not defined,

it has been the subject of interpretation.

Caselaw on Art. 8 have accepted the Aristotelian notion of equality that things that are alike should

be treated alike.[14]

The Federal Court in the infamous case of the dismissal on ground of pregnancy, missed a golden

opportunity to reverse the tide in favor of a globally accepted standard of substantive equality.

In Beatrice a/p A.T. Fernandez v Sistem Penerbangan Malaysia,[15] a decision handed down in March

this year, the appellant did not resign after being pregnant contrary to a term stipulated in the

collective agreement (CA) of the air carrier, which requires all stewardesses of a particular category

to resign on becoming pregnant. The Federal Court in refusing leave for the appellant to appeal a

Court of Appeal decision dismissing her application ruled that the term in the CA did not infringe Art.

8 inter alia on the technical ground that the amendment to Art. 8 (2) to include gender was made in

2001, the appellant being dismissed in 1991.

Further the court said, “..in construing Article 8 of the Federal Constitution, our hands are tied. The

equal protection clause in Clause (1) of the Article 8 thereof extends only to persons in the same

class. It recognizes that all persons by nature, attainment, circumstances and the varying needs of

different classes of persons often require separate treatment. Regardless of how we try to interpret

Art. 8…we could only come to the conclusion that there was obviously no contravention.” [16]

It is unclear from the grounds of judgment if the court did apply its mind at all the requirements of

the formal equality standard in identifying the comparator (the class of persons to whom the

appellant is to be compared with) and why the appellant and the class of persons are not the same,

in order to fulfill the like treated alike standard.

The court took a ‘protective’ pose to say that, “it is not difficult to understand why airlines cannot

have pregnant stewardesses working like other pregnant women employees. We take judicial notice

that the nature of the job requires flight stewardesses to work long hours and often flying across

different time zones. They have to do much walking on board flying aircraft. It is certainly not a
conducive place for pregnant women to be.”

The protection of pregnant women consideration did not result in any recommendation of a change

of duties to accommodate sexual difference in the case. In other words, the appellant was made

solely responsible for putting herself in the position which requires her resignation/dismissal.

From the preceding sections, it is submitted that the formal equality model of like treated alike does

not eliminate discrimination against women and in fact can perpetuate discrimination of women. The

formal equality modal was dominant at a point in time but has now been displaced with the

substantive model of equality in most national jurisdictions globally through interpretation[17] and/or

legislation.[18]

Compliance With Art. 8 Substantive Equality Standard And CEFDAW

A substantive equality approach has changed social, political and legal understandings (“equal

before the law”, “equal protection under the law’) of what discrimination is and how it occurs. It has

transformed the equality framework in grounding legal reasoning in the social realities of women

and disadvantaged groups.

The substantive modal of equality is incorporated and promoted under CEFDAW through the

recognition in its provisions that women are subordinated through the construction of stereotyped

and subservient roles and the requirement that governments implement affirmative measures to

overcome the historical disadvantage of women.

While Art. 8 addresses the judiciary in addressing and providing remedies to equality challenges,

CEFDAW addresses governments and holds the executive responsible in complying with obligations

through a reporting mechanism.[19]

CEFDAW requires States Parties to enact legal guarantees of equality and to provide the means of

fully enforcing them. It obliges governments to guarantee women “the exercise and enjoyment “of

these rights” (Art. 3 in Part 1 CEFDAW). Exercise of these rights means access to the use of rights

by making adjudicative procedures for vindicating rights accessible, affordable and known.

Enjoyment of these rights means actually experiencing the benefit of the right and/or having the

content of the right made real in one’s life. [20]

 The exercise and enjoyment of these rights obliges the government to go beyond mere statements

in legal documents of its commitment to women’s equality. It obliges governments to ensure

through law and other means the practical realization of women’s equality. Thus legislation is not

the complete solution. Taking appropriate means include designing and implementing programs or

allocating resources. Governments are required to act not just refraining from discriminating.

The government has to eliminate structural discrimination (including the historical disadvantage of

women) in all fields, including the political, economic, social and cultural fields. Part III CEFDAW

details specific measures in access to work, remuneration, social security, pregnancy and maternity,

education, health care and living conditions.

CEFDAW extinguishes the split between public and private spheres. It addresses the family and

obliges the government to eliminate discrimination by “any person, or organisation or

enterprise”.[21]

“Sharia’ Law” Reservations And “Personal Law” Restrictions To Women’s Equality

This paper will be referring to the government’s claims to qualify CEFDAW’s application in relation to

Islamic law and the constitutional qualifications of “personal law” to Art. 8. This approach is selected

due to the increasing political significance of Islam and Islamic law in Malaysia.[22] For purposes of

consistency, the terms Syariah and Islamic law would be used for this paper and distinguished

where relevant.

It should be noted at the outset (my explanations follow), that :-

i. equality under the Federal Constitution is qualified by Islamic law and doctrine;

ii. and CEFDAW is qualified by Islamic law and the Federal Constitution (Islamic law and doctrine).

It seems an oxymoron that an international covenant should be limited by a national constitution

when that international covenant has an objective to secure state compliance to its provisions.

The accession statement to CEFDAW on Islamic law appears to be a blanket qualification.[23] This

means that regardless of the fact that Malaysia is not homogeneously Muslim, the government of

Malaysia may not implement CEFDAW if there is a conflict between CEFDAW and Islamic law. The
statement uses the term “Islamic Sharia’ law” which is rendered in this discussion henceforth as

Islamic law and not Islam per se.

Malaysia registered her reservations at accession declaring that “Malaysia's accession is subject to

the understanding that the provisions of the Convention do not conflict with the provisions of the

Islamic Sharia' law and the Federal Constitution of Malaysia.” [24]

In addition to the statement on the Syariah, Malaysia has retained her reservations to Art. 5 (a), 7

(b), 9 (2), 16 (1) (a),(c),(f) and (g) and Art. 16 (2).[25] This paper will not cover a discussion these

reserved articles and the implications thereof.[26]

The Federal Constitution does not allow the entire Art. 8 to invalidate or prohibit anything covered

in Art. 8 (5). In other words, clause (5) sets out “lawful discrimination” under the Constitution. In

this regard, the writer confines herself to Art. 8 (5) (a) on personal law, specifically Islamic

law.[27] Islamic law in this regard is construed as that which the federal and state legislature is

competent to legislate upon as per the Federal Constitution.

Art. 8 (2) is further qualified by any provision on discrimination which is so expressed in the

Constitution. “Lawful discrimination” in this case refers to Art. 152 and Art. 153 on Malay Language,

the special position of the Malays (special privileges of Malays and the Malay Rulers) and natives of

Sabah and Sarawak. This point is also beyond the scope of this paper.

Art. 74 (2) of the Federal Constitution empowers the State Legislature to make laws on any matter

in the State List in the Ninth Schedule. Item 1 of the State List allows the State Legislature to make

laws inter alia on “Islamic law and personal and family law of persons professing the religion of

Islam”.

The State Legislature however has no power to make law “in respect of offences except in so far as

conferred by federal law, the control of propagating doctrines and beliefs among persons professing

the religion of Islam; the determination of matters of Islamic law and doctrine and Malay custom”.

(emphasis added). Such a power is vested only in Parliament.

Thus, personal law as Islamic law covers both Islamic law and Islamic doctrine under the Federal

Constitution. Thus construed, Art. 8 (1) cannot invalidate or prohibit Islamic law and Islamic
 doctrine.

A question arises at this point if Islamic law is limited to legislated law or law passed by Parliament

and State Legislatures or whether it covers general Islamic law. There is a view that the latter is

covered.[28]

In any case, for the purpose of this discussion as Islamic doctrine is a legitimate matter for

Parliament to legislate upon, the paper will proceed on the following basis:

i. that CEFDAW is made subject to the no-conflict rule to Islamic law (“Islamic Sharia’ law) and the

Federal Constitution,

ii. that both CEFDAW and Art. 8 are subject to the no-conflict rule to legislated Islamic law, general

Islamic law and Islamic doctrine.

PART 2

Universalism, Cultural Relativism And Fundamentalism

The no-conflict rule becomes problematic if CEFDAW and Art. 8 are incompatible with Islam, Islamic

law and Islamic doctrine. If that is the case, then the substantive equality standard and the

measures to eliminate all forms of discrimination against women under CEFDAW (and under

principal human rights covenants and principles), would fail.

There are two ways of working a resolution, either compelling compliance or exploring the avenue

of redefining or transforming or reclaiming cultural understandings that would support or mirror

compatibility.

In the last thirty years or so, the international community and human rights actors have lobbied at

the national and international level for minimizing governments’ claim of cultural relativism in

defense of non-compliance with universal standards of human rights.

When women’s human rights were accorded recognition as human rights at the 1993 World

Conference on Human Rights, renewed efforts to eradicate claims of cultural relativism came to the

fore. Work on lifting country reservations on CEFDAW based on cultural relativism arguments
intensified. In many of these campaigns, cultural relativism was perceived as fundamentalism.[29]

The rational of a binding treaty such as CEFDAW, obliges States Parties to implement measures to

eliminate discrimination in religious and customary practices. Malaysia like other Muslim majority

countries have made reservations on inter alia Art. 16 CEFDAW, which concerns equality between

men and women in all matters relating to marriage and family relations, which are governed in

Malaysia for Muslims by Islamic law.

Human rights have searched for a universal sense of truth, values, ethics, morality and justice.

Relativism is the view that this search is hopeless and futile because the concepts of truth and

falsehood, rights and wrong, rights and duties can exist and be valid only within a specific context.

Cultural relativism is derived from relativism and developed initially in reaction against Western

assertions of cultural superiority.[30]

Cultural relativism has been invoked to support claims that international human rights norms should

not apply, or should apply only with a special interpretation, as the norms are alien to the groups in

question. In assertions, the claim is often made that values when based on religious values enjoy

supremacy over international law.

“Fundamentalism” is a self-referencing term adopted by a group of Protestant Christians in 1920

who rallied behind a series of pamphlets called The Fundamentals (1910-1915). In time, the term

“fundamentalism” took a pejorative hue in the United States, in political debates about the Equal

Rights Amendments, abortion and prayer in schools indicating positions articulated by conservative

Christian groups. By extension it has been used to refer to Muslims who reject Western secular

modernism. It was used widely during the 1979 Iranian revolution. Issues of gender play a crucial

role in the language of fundamentalism. What is championed is a divinely sanctioned vision of

natural differences between the sexes that make it appropriate for women to live within boundaries

that would be restrictive for men, and to live under men’s protection and even surveillance. [31]

Rights Require A Cultural Legitimacy For Compliance

International human rights law has not yet been applied effectively to redress the disadvantages

and injustices experienced by women by reason only of their being women. In this sense, respect

for human rights fails to be “universal”.[32]

The first Special Rapporteur on Violence Against Women, Radhika Coomaraswamy acknowledges

the problem in a different way. She asks the question, “How can universal human rights be

legtimised in radically different societies without succumbing to either homogenizing universalism or

the paralysis of cultural relativism?”[33] She proposes that those in the West must guard against the

idea that the West is progressive on women’s rights and the East is barbaric and backward.

Human rights ought by definition to be universal in concept, scope and content as well as in

application: a globally accepted set of rights or claims to which all human beings are entitled by

virtue of their humanity and without distinction on grounds such as race, gender or religion. Yet

there can be no prospect of the universal application of such rights unless there is, at least,

substantial agreement on their concept, scope and content.[34] International human rights norms

require a cultural legitimacy among Muslims and Muslim-majority states.[35]

The need to locate cultural legitimacy for human rights standards becomes imperative when the

practical implementation of these norms (the States Parties’ obligation to implement measures to

eliminate discrimination), requires voluntary compliance and cooperation by governments.

“Secular scholars of religion” or “religiously committed scholars and lay persons”, who are involved

in projects on religion and human rights say that there is no “abyss separating the two realms”. The

dreams and goals of those who pursue and defend human rights are clear echoes of ancient

prophetic voices which also hoped for an ideal society based on justice and truth. The laying bare

of assumptions and premises of each system (religious tradition and modern human rights) and

examination of those premises will allow a contemplation of a fruitful intersection. [36]

The Project on Religion and Human Rights[37] has developed a framework to resolve issues of

universalism and cultural relativism. I am sharing this approach as I have found the framework

relevant in debating rights and religion as well.

The Project identified three broad and fundamental dimensions as follows: (1) levels of discourse,

(2) perspectives of speakers, and (3) cultural complexity.

(1) Levels of discourse:

The tension between rights and religion does not invalidate the universality of human rights and it

does not also imply moral bankruptcy. An investigation of tension may call for the development of
creative strategies for universalizing such standards which acknowledge and engage seriously the

cultural perspectives of traditions committed to diverse premises and world views. [38]

The exploration of such strategies will help promote popular legitimacy for human rights. This will

generate the political will to enact and implement human rights standards and achieve a sufficient

level of voluntary compliance for enforcement to be effective. No system of enforcement can cope

with massive and persistent violations of its normative standards. Thus voluntary compliance must

be the rule rather than the exception.

(2) Perspectives of Speakers:

The speakers are of three types (i) state actors, (ii) NGOs, religious representatives, individual

actors, and (iii) the oppressed, both individually and collectively, and women. There are critical

questions to ask of speakers’ positions (e.g., powerful or powerless?), representation (e.g., on

whose behalf?), language and collateral behavior (e.g., are actions consonant with discourse?)

State actors speak from a position of political power and often represent themselves as speaking on

behalf of an entire nation or an entire culture. Their actions belie the sincerity of their motives and

their discourse and their language of relativism is often used as a screen to perpetrate and defend

human rights violations. Thus there is reason to be skeptical about appeals by undemocratic states

to cultural relativism.

The third class of speakers, the ones whose rights are violated by invocation of culture and religion

are often drowned out. These voices and perspectives have to be taken into account as authentic

witnesses to oppression.[39]

(3) Cultural complexity:

When governments invoke cultural pretexts for denying rights, it appears as though there is a

unitary, monolithic culture that is shared by its citizens. This is not the case as every society and

every culture is comprised of diverse views about significant issues of human of human life and

human well-being, including of course, issues of human rights.

In Muslim societies, there is a significant group of people comprising of clerics and religious leaders

who are more familiar with their own cultural traditions. In these conversations, groups in support
of international norms and groups familiar with their cultural traditions may have in common shared

aspirations on rights and freedom. Their learning from each other (and from women) is often

impeded by gaps in their respective discourses on universality and cultural relativism. Bridging this

“discourse gap” becomes important and devising creative means to achieve this goal should be

given priority.[40]

In working the cross-cultural and internal dialogue, rights advocates are cautioned to avoid the trap

of totalizing cultures. This is to avoid colluding with state actors in their totalizing rhetoric, but more

importantly, to continue fostering human rights dialogues internal to and between cultural

traditions.[41] Thus religion and culture can be an agent for the promulgation of human rights

norms.[42]

Scholars have thus maintained the position that religion and the international human rights regime

are not incompatible. This is a work in progress and it becomes incumbent for secular and religious

human rights scholars and activists to contextualize these efforts.[43]

Feminisms

This part of the paper hopes to contextualize the debate of women’s equal rights in Western

feminist scholarship (developed from the 1970s) with that of the so-called “gender jihad” or

“religious feminism”, more particularly Islamic feminism(s) of the 1990s.

The cross-cultural and internal dialogue (intra-faith) approaches continue among women human

rights actors and religious and secular scholars. For a large segment of believers the search for an

authentically-spiritual approach is part of the spiritual journey of the faith.

Feminism and feminist legal theory can be said to be based on analysis of gender rooted in

patriarchal and capitalist relations. In this regard, the gender theory that informs the substantive

equality standard is valid where society is organized along patriarchal and capitalist lines. The focus

of analysis in feminist legal theory is on the ideological nature of law that is in the way in which law

operates to reinforce unequal power relations by naturalizing and universalizing patriarchal and

capitalist relations.[44]

In the course of the global discourse on rights, religion and fundamentalism, feminism and feminist

legal theory on equality have been identified as “Western scholarship”. The question then arises if
gender theory on sexual differences (which premises the substantive equality standard), is universal

in its application to Muslim societies. This query has prompted Muslim women scholars to

investigate claims of “inauthencity” and to find the meaning of Quranic discourses on gender.

Margot Badran writes that “feminisms” are produced in particular places and are articulated in local

terms. Third World women for instance, locate struggles against insubordination and oppression

within local liberation and religious reform movements. There are “globally scattered feminisms”

and the claim that feminism is Western is essentialist in nature. Feminism is “a plant that only

grows in its own soil.” [45]

Martha Nussbaum proposed a course of feminist practice that is “strongly universal, committed to

cross-cultural norms of justice, equality, and rights, and at the same time sensitive to local

particularity, and to the many ways in which circumstances shape not only options but also beliefs

and practice.”Thus a “universalist feminism” need not be insensitive to difference or imperialistic. A

particular type of universalism, framed in terms of general human powers and their development,

offers us in fact the best framework within which to locate our thought about difference. [46]

Amina Wadud, a “pro-faith, pro-feminist academic and an activist creating reform”, writes that

gender reform remains one of the most controversial and yet essential lenses through which topics

of Islam and modernity have been approached. [47]

In her forthcoming book, Inside Gender Jihad, Women’s Reform in Islam, she explores “the

legitimate articulations of indigenous Muslim intellectual and political confrontation to two influential

epistemologies: Western discourse of globalization, democracy and human rights and progressive

Islamic discourse that is creating a unique response to Islamic origins, historical and ideological

development into a trajectory essential to an Islamically authentic and indigenous reconstruction of

globalization, democracy and human rights”.

Wadud does not discount gender theory but her pro-faith journey in Gender Jihad emanates from

the notion of the human being based on a relationship with the divine. Sacred systems are not

incorrigibly patriarchal and beyond redemption. She “wrestles” with the “hegemony of male

privilege in Islamic interpretation as patriarchal interpretation, which continuously leaves a mark on

Islamic praxis and thought. Too many of the world’s Muslims cannot perceive a distinction between

this interpretation and the divine will, leading to the truncated notion of divine intent….limited to the
malestream perspective.” [48]

Equality And The Gender Construct In Islam

The Quranic story of human origins affirms that man is not made in the image of God and there is

no flawed female helpmate extracted from him as an afterthought. When the proto-human soul

(nafs) is brought into existence, its mate (zawj) is already part of the plan. The Quran treats women

and men in exactly the same way. Whatever the Quran says about the relationship between God

and the individual is not in gender terms.[49]

Scholars doing exegesis agree that the Quran is not a dual-gendered text that has male and female

voices in it. Access to the divine discourse is mediated by humans and in gendered languages and

historically its masculinist biases that have prevailed in exegesis because Muslim societies like other

societies have patriarchal histories.[50]

The re-reading of text by women has also found a flaw in malestream interpretation methodology

which promotes a gendered view of sexual difference. The locus classicus is the interpretation to Q

4:34.

There is no term in the Quran that indicates that child-bearing is a female’s primary function or that

mothering is her exclusive role. Scholars note that verse 4:34 demonstrates a specific situation

where when a female carries a child, her husband is enjoined to provide material support for her

and the Quran renders this by the phrase, “Men are responsible (qawwamua ‘ala) women [on the

basis] of what Allah has faddala [preferred] some of them over others, and [on the basis] of what

they spend of their property for the support of women..”.

Patriarchal reading of 4:34 has lifted a particular specific context where men have to provide

material support for childbearing women (the Quran does not assume that all women will bear

children) into a universal principal. Malestream interpretation have rendered 4:34 and qiwamahas

an unconditional preference of men over women or that men are superior to women (in strength

and in reason).[51]

For example, the Organisation of Islamic Conference (OIC) has developed the Cairo Declaration of

Human Rights in Islam where it advocates that equality of women and men is not absolute. Art. 6 of
the Cairo Declaration reads:

(a) Woman is equal to man in human dignity and has rights to enjoy as well as duties to perform;

she has her own civil entity and financial independence, and the right to retain her name and

lineage.

(b) The husband is responsible for the support for the welfare of the family.

Human rights scholars and ‘secular scholars of religion’ have found the guarantee of equality ‘in

human dignity’ under the OIC Cairo Declaration as falling short of human rights guarantee under

the ICCPR.[52] As equality and civil and cultural rights are enshrined in CEFDAW, the OIC Cairo

Declaration falls short of CEFDAW as well.

Muslim scholars who support the no-absolute equality approach premise their view of male privilege

on the ground that males provide material support for women (although the context is specific).

Wadud however renders 4:34 to mean that the qiwamah is neither biological or inherent but it is

valuable and that in some circumstances some men may be responsible for some women and in

other contexts, some women may be responsible for some men. The Quran suggests mutual

responsibility between males and females.[53]

This view resonates with the view of the Human Rights Committee that “Equality during marriage

implies that husband and wife should participate equally in responsibility and authority within the

family.” [54]

Conclusion

Whatever may be the premises of the gender theorizing, this illustration of the universals and the

specifics in exegetical work of Muslim scholars on 4:34, show that sexual difference does not call for

discriminatory treatment. In particular contexts, a woman’s pregnancy require differential treatment

(our pregnant stewardess example, supra). Differences are recognized but not penalised.

It is not possible in this brief paper to illustrate the invaluable exegetical work of Muslim scholars in

reading-out patriarchal interpretations from the text, contextually. The re-reading efforts are

important in the evolution of normative principles which would form the premises of equality and
 equality standards in assessing discrimination against women.

The normative principles culled from a re-reading would have to be applied in the investigation of

the no-conflict rule to Islam, Islamic law and doctrine as stated earlier.

It is the writer’s opinion that the re-reading of 4:34 does not compromise the notion of equality

enshrined in CFEDAW and principal human rights conventions and the notion of a substantive

equality standard.

The immediate tasks for human rights defenders would be the investigation of all the specific

contexts and the universals and whether provisions in CEFDAW and national law and policy qualify

as specific contingent situations or universals. This approach does not exhaust the exploration of

other empowering methodology which promotes gender equality and justice.

With new approaches in culling normative principles which promote gender equality and justice, are

in a position to investigate the various contexts of marriage and family relations, custody and

guardianship rights, inheritance and property rights and a host of civil and political rights, and

economic, social and cultural rights enshrined in CEFDAW and national law and policy.

The function of human rights in the discourse of human rights and religion is the exploration of the

core-irreconcilable differences in religious values and to work through an internal dialogue with

religion and cross-cultural exchanges to minimize the differences. The expansion of the penumbra

for dialogue would help inform strategies and principles towards gender equality.

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Texas: University of Texas Press, 2002)

 Azza Karam, Women, Islamisms and the State: Contemporary Feminisms in Egypt (New York: St

Martins Press, 1998)

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 --------, “Commentary on the Optional Protocol to the Convention on the Elimination of All Forms of

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 John Kelsey eds. et. al., Religion and Human Rights Project (New York: The Project on Religion and

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 John S. Hawley, “Fundamentalism”, in Courtney W. Howland ed., Religious Fundamentalisms and

the Human Rights of Women (New York: St Martins Press, 1999) 3-8

 Joseph Tussman eds. et.al., “The Equal Protection of Laws”, 37. Cal. L. Rev. 341 (1949)

 Julie S. Peters, “Reconceptualising the Relationship between Religion, Women, Culture and Human
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 Margot Badran, “Islamic Feminism: What’s in a Name?”, Al-Ahram Weekly Online. January

2002http://weekly.ahram.org.eg/2002/569/cul.htm

 --------“Toward Islamic Feminisms: A Look at the Middle East”, in Asma Asfaruddin

ed.,Hermeneutics and Honor (London: Harvard University Press, 1998)

 Martha C. Nussbaum, Women and Human Development: The Capabilities Approach (Cambridge:

CambridgeUniversity Press, 2000)

 Mary J. Frug, Postmodern Legal Feminism (London: Routledge, 1992)

 Martin E. Marty eds. et.al., The Fundamentalism Project, Fundamentalisms

Observed(Chicago/London: The University of Chicago Press, 1999)

 Mashood Baderin, International Human Rights and Islamic Law (Oxford: OxfordUniversity Press,

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 Michael Singer, “Relativism, Culture, Religion and Identity”, in Courtney W. Howland ed., Religious

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 Michael S. Berger et. al., “Women in Judaism from the Perspective of Human Rights”, in John Witte

Jr eds., et.al., Religious Human Rights in Global Perspective: Religious Perspectives (The Hague:

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Standpoint. http://www.isanet.org/archive/carpenter.html

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26 92004) 799-844

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[1] Mashood Baderin, International Human Rights and Islamic Law. (Oxford: Oxford University

Press. 2003) p. 58 quoting Justice Tanaka in the South West Africa Cases [1966] ICJ Reports, p.

304.

[2] It is frequently supposed that Muslim states are either absent or have contested the process and

project or played no significant role. However, see Susan Waltz, “Universal Human Rights: The

Contribution of Muslim States”, Human Rights Quarterly 26 (2004) 799-844. The United Nations has

records of the contributions of Muslim-majority states and Muslim diplomats from 1946-1966 to the

deliberations to the UDHR and the ICCPR (1966) and ICESCR (1966).

[3] CEFDAW was adopted as a treaty in 1979 after the ICCPR and ICESCR had come into force.

[4] Women’s groups in Malaysia had lobbied for the inclusion of both “sex” and “gender” to Art. 8

(2). http://www.wao.org.my/news/20010905briefingnotes.htm . It is the author’s position that

while the ratification to CEFDAW by the government prompted the lobby for the 2001 amendment

to Art. 8 (2), the notion of a substantive equality standard does not solely require CEFDAW for

interpretation of that standard in the courts, which comes into play through the interpretation of

“equal before the law” and “equal protection” under Art. 8 (1), a clause intact since independence in

1957.

[5] R. Charli Carpenter, Gender Theory in World Politics: Contributions from a Non-Feminist

Standpoint. http://www.isanet.org/archive/carpenter.html p.4

[6] Carpenter, ibid. Carpenter emphasises that the application of the gender framework by non-

feminists does not threaten the feminist normative debate, rather, it serves to validate feminist

epistemology.

[7] The concept of gender helps explain variation across same-sex distributions, cultures and time

periods. The concept of sex explains uniformity within same-sex distributions and variations

between the sexes. Carpenter, ibid.

[8] The gender framework is not limited to explaining discrimination against women. Gender is not

synonymous with women or women’s issues. A gender theory that focuses only on women and

essentialises men leaves other topics on gender unexplored. Carpenter, ibid at p. 7

[9] Donna Sullivan, “Gender Equality and Religious Freedom”, 24. N.Y.U.J. Int’l L. & Pol. 797 (1991-

1992) 795-856. p. 797 footnote 2.

[10] It is not however clear from the briefing note to the ministry concerned that the women’s lobby

had this distinction in mind. http://www.wao.org.my/news/20010905briefingnotes.htm

[11] Mary J. Frug, Postmodern Legal Feminism. (London: Routledge. 1992) p.4

[12] Catherine McKinnon, Feminism Unmodified. (Cambridge, Mass: HarvardUniversity Press.

1987) p. 34

[13] Ratna Kapur eds. et.al., Subversive Sites: Feminist Engagements with Law in India. (New

Delhi: Sage Publications.1996) p. 176-177.

[14] See for example PP v Khong Teng Khen [1976] 2 MLJ 166. The Malaysian courts’ articulation

of equality standards fall short of the developments in this area worldwide. See Joseph Tussman

and Jacobus tenBroek, “The Equal Protection of Laws”, 37 Cal. L. Rev. 341 (1949). The arguments

in Tussman and tenBroek for the formal equality standard are no longer followed in responsible

jurisdictions committed to the fundamental principle of equality of all human beings.

[15] [2005] 2 CLJ 713.; http://www.kehakiman.gov.my/jugdment/fc/archive/07.06_08-51-

2003(W).htm; Salbiah Ahmad, “Pregnant, Productive and Discriminated”, MALAYA!

malaysiakini.com. 2005

[16] The court also held that the CA is an agreement between private parties which takes it out of

the purview of the equal protection clause.

[17] Art 8 (1) and (2) are in pari materia to Art. 14 and Art 15 (1) respectively of the Indian

Constitution. Art. 15 (1) prohibits discrimination on grounds inter alia of sex. See Ratna Kapur, “On

Women, Equality and the Constitution”, NationalLawSchool Journal. Special Issue 1993. Bangalore:

NationalLawSchool of IndiaUniversity. 1-61., where she did a critical study of the equality cases in

the context of the formal and substantive equality modals and makes an argument for the adoption

of the substantive equality standard.

[18] E.g. Section 15 Canadian Charter of Rights and Freedoms which spells out (1) the right to
equality before the law; (2) the right to equality under the law; (3) the right to equal protection of

the law; and (4) the right to equal benefit of the law. Section 15 has been construed to address the

substantive equality of women, people of color, aboriginal peoples and people with disabilities.

[19] Malaysia is not party to the Optional Protocol to CEFDAW. See Donna Sullivan, “Commentary

on the Optional Protocol to the Convention on the Elimination of All Forms of Discrimination Against

Women”, in IIHR, Optional Protocol CEDAW. UNIFEM. 2000. 31-108.

[20] See Rebecca Cook, “State Accountability Under the Convention on the Elimination of All Forms

of Discrimination Against Women” in Rebecca Cook, ed., Human Rights of Women: National and

International Perspectives. (Philadelphia: University of Pennsylvania Press, 1994) at 230-39

[21] See General Recommendation No. 19 UN Doc. A/47/38 (1992) paragraph 19.

[22] Salbiah Ahmad, “Islam in Malaysia, Constitutional and Human Rights Perspectives,” MWJHR

(2005) vol. 2 Issue 1 http://www.bepress.com/mwjhr/vol2/iss1/

[23] It can be argued that personal law as Islamic law in Art 8 (5) (a) should only apply to Muslims

as per a reading of Art. 74(2) and Item 1 of the Ninth Schedule. Thus restrictions to equality under

Islamic law (if any) should not apply to non-Muslims. The same cannot be said for the qualification

to CEFDAW.

[24] http://www.un.org/womenwatch/daw/cedaw/reservations-country

[25] In the instrument of accession, Malaysia states that she interprets the provisions of Art. 11 as

a reference to the prohibition of discrimination on the basis of equality between men and women

only. Art. 11 (1) reads, “States Parties shall take all appropriate measures to eliminate

discrimination against women in the field of employment in order to ensure, on the basis of equality

of men and women, the same rights..”

[26] See Shanthi Dairiam,The Status of CEDAW Implementation in AESAN and Selected Muslim

Countries. IWRAW Asia Pacific Occasional Papers. No.1. (Kuala Lumpur: IWRAW-AP. 2004) for a

general discussion of reservations in these countries, of which Malaysia is cited.

[27] Personal law has not been defined under the Federal Constitution or under the 1948 and 1977
Interpretation Acts. Personal law is the law applying in a case by virtue of the connection of the

parties with a particular race, religion or locality is most important in the fields of domestic

relations, succession and property holding. Many varieties of personal law operate in Malaysia, the

most significant being Islamic law and Malay custom, Chinese custom and the native law and

custom in Sabah and Sarawak (East Malaysia), See Sheridan L.A, The Constitution of

Malaysia(Singapore: Malayan Law Journal. 1987) p. 66. There is also the custom of the Orang Asli

(aborigines) in West Malaysia.

[28] See Majlis Ugama Islam Pulau Pinang dan Seberang Perai v Shaik Zolkaffily bin Shaik Natar &

Ors [2003] 3 MLJ 705.

[29] See Martin E. Marty eds. et.al, The Fundamentalism Project, Fundamentalisms Observed (4

volumes) (Chicago/London:The University of Chicago Press, 1991).

[30] Michael Singer, “Relativism, Culture, Religion and Identity”, in Courtney W. Howland

ed.,Religious Fundamentalisms and the Human Rights of Women. (New York: St Martins Press,

1999) 45-54 p. 45.

[31] John Stratton Hawley, “Fundamentalism”, in Courtney W. Howland ed., (1999) op.cit. 3-8 p.2.

[32] Rebecca Cook, “Women’s International Human Rights Law: The Way Forward”, in Rebecca

Cooked., Human Rights of Women.. (1994) op.cit.3-36. p. 3

[33] Radhika Coomaraswamy, “ Women, Ethnicity and the Discourse of Rights”, in Rebecca Cook

(1994). op cit. 39-57.

[34] Abdullahi A. An-Nai’m, “What do we mean by universal?”, Index on Censorship 4/5 1994. 120-

128:124-5. This article is one of An-Na’im’s early writings but the concerns resonate after the

events of September 11, 2001.

[35] Abdullahi Ahmed An-Na’im, “Political Islam” in Peter L Berger ed., The Desecularisation of the

World-Resurgent Religion and World Politics. (WashingtonDC: Ethics and Public Policy Center.

1999).

[36] Michael S. Berger et. al., “Women in Judaism from the Perspective of Human Rights”, in John
Witte Jr eds. et.al, Religious Human Rights in Global Perspective: Religious Perspectives. (The

Hague: Kluwer Law International, 1996). 295-322 p. 296.

[37] John Kelsey eds. et. al., Religion and Human Rights Project. (New York: The Project on

Religion and Human Rights. 1994). This project involved a series of consultations with scholars and

activists, including An Na’im who chaired this part of the consultation on universality and cultural

relativism.

[38] For example the penalty of the crime of apostasy in Islamic criminal law is death. This offends

the principle of freedom of religion and belief in the Quran and international human rights norms.

An investigation of the historical circumstances of derivation of that penalty show that death for

apostasy was imposed after the death of the Prophet Muhammad by his companion-caliph when

several tribes refused allegiance which they showed by refusal to pay taxes. See Salbiah

Ahmad, “The Other as the Enemy”, MALAYA! malaysiakini.com. 2005. In another example, the

Quran does not indicate sex as a qualification for leadership but of qualities of the person. The

Quranic example of a good leader reposes in Bilqis, the Queen of Sheba. See Amina Wadud, Quran

and Women: Rereading the Sacred Text from a Women’s Perspective. (Kuala Lumpur: Penerbit

Fajar Bakti, 1992) p. 40-41

[39] For instance, the practice of observing hijab (covering) where in some context and historical

settings, it bears political significance for women and in some other contexts it becomes a means of

reinforcing inequalities. The state’s role in compelling the practice or denying the practice requires

investigation as the state has political power to coerce. See Salbiah Ahmad, “Unveiling Religious

Discrimination”,MALAYA! malaysiakini,com 2004, which is a commentary on the Leyla Sahin case in

the European Court of Human Rights and the “tudung” issue in Malaysia and Singapore.

[40] Abdullahi A. An Na’im, ed., Human Rights in Cross-Cultural Perspectives. (Philadelphia:

University of Pennsylvania, 1992).for dialogical approaches.

[41] For example the “Global Ethic” of the 1993 Parliament of the World’s Religions, signed by

religious leaders from over 20 twenty religious traditions recognizes the importance of the subject

matter of many human rights. These views articulated in a variety of religious traditions challenge

teachings that deny equal rights to women. John Kelsey (1994) op.cit p. 42

[42] Julie Stone Peters, “Reconceptualising the Relationship Between Religion, Women, Culture and
Human Rights”, in Carrie Gustafson eds., et.al., Religion and Human Rights: Competing

Claims? (Armonk, New York: M.E. Sharpe, 1998). 140-144:140 ; Salbiah Ahmad, “Safeguarding

Pluralism”, MALAYA! malaysiakini.com, 2005.

[43] Abdullahi A. An-Na’im, “The Interdependence of Religion, Secularism and Human Rights:

Prospects for Islamic Societies”, Common Knowledge, vol 11:1 (Winter 2005), idem The Future of

the Sharia project (forthcoming).

[44] Ratna Kapur (1996) op. cit. p 31. She notes that it is important for feminists to continuously

examine the multiple and shifting dimensions of women’s oppression as not all law constructs

women in the same way. Some legal discourses have been liberating whereas others continue to be

oppressive.

[45] Margot Badran, “Islamic Feminism: What’s in a Name?”, Al-Ahram Weekly Online. January

2002 http://weekly.ahram.org.eg/2002/569/cul.htm ; idem, “Toward Islamic Feminisms: A Look at

the Middle East” in Asma Afsaruddin ed., Hermeneutics and Honor. (London/England: Harvard

University Press,1999), 159-216; Azza Karam, Women, Islamisms and the State: Contemporary

Feminisms in Egypt (New York: St. Martins Press,1998)

[46] Martha C. Nussbaum, Women and Human Development: The Capabilities

Approach.(Cambridge: CambridgeUniversity Press, 2000) at p. 7

[47] Amina Wadud, Manuscript Proposal: Inside the Gender Jihad: Women’s Reform in

Islam.(2005) Quoted with permission of author.

[48] E-mail communications with author on her forthcoming book. October, 2005

[49] Amina Wadud (1992) op.cit p 34 She cites Q 4:1, Q13:11, Q4:124.

[50] Asma Barlas, Believing Women in Islam: Unreading Patriarchal Interpretations of the

Quran(Austin, Texas: University of Texas Press, 2002) p. 21-22.

[51] Amina Wadud (1992) op.cit p 70-74; Asma Barlas (2002) op.cit. 184-189

[52] Elizabeth Mayer, cited in Mashood Baderin, International Human Rights and Islamic Law.op.cit.
p. 60. Baderin cites other views (Muslim and non-Muslim secular and religious views) in the chapter

on equality under the ICCPR.

[53] Amina Wadud (1992) op. cit. p. 73

[54] Mashood Baderin, International Human Rights and Islamic Law. op.cit. p. 60.

*This paper was delivered at the 13th Malaysian Law Conference.

@@@@@@@@@@

Azmi Sharom:Stand up and be counted, Malaysia

August 27, 2010 by Pagalavan Letchumanan
This was an interesting article written by Azmi Sharom in the Star today. Malaysia is probably
the only country in the world who still practises institutionalised racism! Quotas everywhere
which is not based on needs but based on skin colour and race. Since when Bumi discounts of
houses became a Malay right! It is not stated anywhere in the constitution, as what
PERKASA claims. Tun Razak introduced this discount scheme to encourage Malays to buy
houses, especially in towns but unfortunately, as I said before, anything that is too long is
detrimental. Now it has become a Malay right!. Remember, NEP was clearly drafted to last for
only 20 years but now it is being hijacked by the Malay elites to benefit them. As what Tony
Pua said, why a person who can buy a house worth RM500 000, need a discount? Why a
person who earns millions as a director need scholarship for his children?This is what I call
total misuse of the system. God is watching!

Stand up and be counted, Malaysia

Brave New World (The Star)
26 August 2010

It is strange that in the 21st century, we are still having to face the problem of

institutionalised racism.

______________________________

OVER the past week or so, there have been some developments in our country which are

more disturbing than usual.

In particular, the two cases of alleged racist remarks by school heads; the accusations that

Penang mosques have replaced the Yang di-Pertuan Agong with the Chief Minister’s name in

their prayers; and the continued insistence that Article 153 of the Constitution is equal to an

inalienable right that could not be questioned.

These events are interrelated and it seems to me that they indicate that there is a battle of

ideology going on in the country now.

On one side is the idea that a person’s ethnicity and religion entitles him to be treated better

than anyone else who is different. On the other side is the idea that equality is an aspiration

that is both noble and necessary for nation building.

It is strange that in the 21st century we are still having to face the problem of institutionalised

racism.

Looking at our history, one can see why this has occurred. The combination of race-based

politics and poorly interpreted constitutional provisions have meant that the idea of racial and

religious superiority has been allowed to grow and become the norm rather than something

undesirable and out of the ordinary.

How else can one explain the possibility that teachers, the very people to whom we entrust

the education of our children, can have such warped values and also have the gall to express

those views publicly?

How else can we explain the near rabid attack on the Penang Chief Minister for something

which he and the state religious department have vehemently denied and in fact would have

been insane to attempt?

Let’s analyse this one step at a time. When the dominant political parties in this country do

not have any political ideology to speak of and are instead, based on the principle that each

race-based component has a duty to safeguard the interest of its community, what one has is

a recipe for the kind of policy and rhetoric that divides rather than unites.

Historically, one can see the reasons why the politics of the nation was forged in this way. It

was a necessary evil in the face of the divide-and-rule policy by the British to show that even

when separate, the three major communities of the nation can still work together politically.

However, it is an unsustainable model and what started life as a fairly rosy example of racial

cooperation too easily descended into crude racialist type politics.

Which is why the early aspirations that our founding fathers had for a society treated with

equality has now been all but buried by the idea that one race is superior to others and in fact

is the only race with any right to be here in Malaysia.

This is because in the battlefields of politics, it is easiest to appeal to base racialist emotions,

especially when without those types of ideas, a party based on race will have no collateral to

work with.

In this kind of political atmosphere, it is of no surprise that what has been forgotten is that the
basis of this nation was one of justice and equality. And the document that is meant to protect

that, the Federal Constitution, has been misinterpreted to the extent that there is no longer

any trace of this aspiration in the mainstream discourse of the day.

Let us be absolutely clear on this matter, the Constitution does give powers to the government

to take affirmative action and it does acknowledge the fact that Islam has a special place in

the public life of the nation.

What it does not intend to do however is create a perpetual system of ethnic-based favourable

treatment nor does it advocate the idea that all other religious beliefs must be subservient to

Islam.

However, instead of this reasonable position, what we have today is the idea that affirmative

action for Malays is unquestionable and to be continued in perpetuity becoming the norm.

This cannot be further from the truth as there are no legal justification for it at all.

Article 153 of the Federal Constitution is seen as the holy grail for those who hold this view.

However, if we examine the provision closely we will notice two things.

Firstly, affirmative action is not a Malay right. Article 153 does not endow a right. What it does

is to merely give government the power to take affirmative action despite the overarching

ideal of equality which is enshrined in Article 8 of the Constitution.

To support this contention, we see that Article 8 clearly states that all citizens in this country

are equal except for situations specifically provided for in the Constitution. Those “specific

provisions” are found in Article 153 and there are not many of them.

They include the power to establish quotas for the civil service, permits and licences,

scholarships and education.

Therefore anything other than these areas should not be subjected to affirmative action.

Furthermore, any affirmative action has to be reasonable. The idea of what is reasonable must

surely be open to research and debate otherwise there will always be the risk of abuse and

wastage of resources.

This being the case, although questioning the existence of such a power to have affirmative

action is moot, discussion on the efficacy of affirmative action policies and programmes surely

is not.

The way the discourse is today, and not merely by the racialist fringe but by mainstream

politicians in power, is that even the implementation of Article 153 is not to be questioned at

all.

This is surely wrong based both on the meaning of the Constitution as well as the principle
held by the founding fathers that Article 153 was an unfortunate but necessary aberration

from the ideals of equality and that it was to be used not in perpetuity.

With these kinds of distortion of law, is it any wonder then that we still get people actually

classifying whole swathes of the citizenry as having no right to be here?

Is it any wonder then that a crazy accusation against a Chief Minister whose government has

given twice as much money to the Islamic bodies in the state than the previous administration,

can give rise to the belief that he is a threat to the faith?

If this country is to have any future as a true nation, the time has come for those who believe

in the ideals of equality, ideals which were held by the political founding fathers of the country

as well as the traditional Rulers of that time, to stand up and be counted.

To not be cowed by the bigots and to say that this is our country and it stands on noble

humanitarian ideals, not opportunistic racialist thinking.

@@@@@@@@@@@

"The rights of all Malaysians should not only be respected and safeguarded but
they should regarded as equals without any prejudice." All bias policies MUST be
removed.

The Malaysian Constitution and Multiculturalism- Dr

Azmi Sharom
at 9/22/2012 06:53:00 PM

Broken Promises: The Malaysian Constitution and Multiculturalism

By Dr. Azmi Sharom

In 1835 Malays made up nearly 90% of Malaya’s population. In 1947 this number was closer to 50%.
Therefore during a time when Malayan political consciousness was awakening (the 1946 British
introduction of the Malayan Union which effectively placed the entire peninsular under direct British rule
galvanised what can be described as the Malayan left and the forefathers of the current ruling elite), it could
hardly be described as homogenous.

The 1957 Federal Constitution of Malaya reflected this change in the personality of the country. It was and
is a strange creature that combines liberal democratic ideals and what can only be described as racially
based preferential treatment. It also has elements of religiosity (the establishment of the scripture based
Islamic law as the personal law for Muslims for example) which appear to contradict Article 4 of the
constitution which reads: “This Constitution is the supreme law of the Federation and any law passed after
Merdeka Day which is inconsistent with this Constitution shall, to the extent of the inconsistency, be void”
Race and religion litter the document in a way that scream “different treatment for different people”; a
situation, which a mere 12 years after the excesses of Nazi Germany and nine years after the adoption of
the Universal Declaration of Human Rights(a United Nations document which Malaysia as a prospective
new member would have to respect) would seem out of place with the growing zeitgeist of the time.

However, considering the socio-political situation at the time, with an indigenous population feeling
overwhelmed both in numbers and in economic disparity, the nature of the constitution can be accepted as
an understandable compromise. Yet, if one were to examine the Constitution as a whole and if one were to
also study the history behind this seeming paradox, then what can be discovered is that at the heart of this
“supreme law” of the country, and arguably at the heart of the founding fathers of the nation, lay a desire to
create a pluralistic and equal society.

The question that lies before us is where did it all go wrong, and is there any possibility of repairing the
damage done? This paper will examine the issue on two main grounds that the author believes lie at the
crux of the problem facing plurality in Malaysia, race and religion.

Religion
Article 3 of the constitution reads: “Islam is the religion of the Federation; but other religions may be
practiced in peace and harmony in any part of the Federation” Does this phrase mean that Malaya was to be
an Islamic state?

The answer is clearly in the negative for two main reasons. Firstly one has to look to the Reid Commission
Report and it states that the Alliance (this were the three political parties that made up the Malayan
government at the time, the United Malay National Organisation, the Malayan Indian Congress and the
Malayan Chinese Association, UMNO, MIC and MCA respectively) upon examining the draft constitution
had this to say: “The observance of this principle…shall not imply that the State is not a secular state”
[Report of the Federation of Malaya Constitutional Commission page 73].

It is very clear therefore that Malaya was not to be an Islamic state. This is not an assertion made by the
Reid Commission, it is an assertion made by the very people who were to become the government of the
newly independent nation. This statement combined with Article 4 which places all laws in the country
under the overarching principles of the Constitution means that to claim Malaya was meant to be theocratic
in any way is disingenuous.

The contention that Malaya is a secular country is further strengthened by the decision of the Supreme
Court (the highest court in the land – now known as the Federal Court) in the case of Che Omar Che Soh
[1988] where it was held that secular law governed the nation and Islamic law was confined only to the
personal law of Muslims. Article 3 was taken to mean that as far as official ceremonial matters are
concerned Islamic form and rituals are to be used.

With regard to religious freedom Article 11 is explicit: “Every person has the right to profess and practice
his religion and subject to clause 4 to propagate it”. Clause 4 allows the state governments (and the federal
government in the case of the federal territories) to control the propagation of religion to Muslims. This is
not limited to non Muslim propagation to Muslims; it includes Muslim to Muslim propagation as well.
Harding suggests that “…the restriction of proselytism has more to do with the preservation of public order
than with religious priority” [Law, Government and the Constitution in Malaysia page 201]. He argues that
even states like Penang which does not have Islam as its official religion has laws regarding propagating
religion to Muslims therefore there can’t be an assumption that Islam is deemed superior in some way.

If we were to work on this premise, then it would appear that this limitation, as restrictive as it is, does not
actually stop individuals of any faith from choosing their religion. This can be seen in the Supreme Court
decision of Minister of Home Affairs v Jamaluddin Othman [1989]. In this case a Muslim convert was
detained under the Internal Security Act. It was held that such a detention has to be made for the purpose of
national security. The conversion of this individual does not breach national security and furthermore his
detention was in breach of his freedom to choose his religion as enshrined in Article 11. Thus, although the
propagation of religion to Muslims is restricted, their freedom to choose their religion would appear to be
not.

Race: Malay and Sabah & Sarawak native’s special privileges

Article 153(1): “It shall be the responsibility of the Yang Dipertuan Agong (the King) to safeguard the
special position of the Malays and natives of any of the States of Sabah and Sarawak and the legitimate
interests of other communities in accordance with the provisions of this Article.” At this juncture, it should
be pointed out that this power of the King is only to be exercised under advice by the government. Under
advice in the Malaysian constitutional context means, he has to act according to that advice. Therefore the
responsibility of any such affirmative action can not in any way be placed on the shoulders of the monarch.

The “special position” of the Malays and natives of Sabah and Sarawak (please note that the indigenes of
the peninsular, the truly indigenous peoples of the country, are not included), is to be protected by the
creation of reasonable reservations of; positions in public service, scholarships, education privileges, permit
or license for trade/business. Article 153 is treated like Holy Scripture by Malay nationalists and zealots.

Yet it must be read in the context of the rest of the Constitution. Article 8 which lays down the ideal of
equality (All persons are equal before the law and entitled to the equal protection of the law), is not
absolute as it allows for such diversions from the basic principle. However, any limits on article 8 have to
be expressly stated in the Constitution. One should also note Article 136 which states; “All persons of
whatever race in the same grade in the service of the Federation shall, subject to the terms and conditions of
their employment, be treated impartially”.

Furthermore, when we examine the Reid Commission report once again, we see that the alliance had this
to comment “…in an independent Malaya all nationals should be accorded equal rights, privileges and
opportunities and there must not be discrimination on grounds of race and creed…” Such advantages given
to the Malays (the Borneo natives were included only in 1963 when Malaya, Sabah, Sarawak and
Singapore created Malaysia) were meant to be a stop gap measure to aid the economically disadvantaged
Malays.

This is further confirmed by the Rulers themselves who said that they “look forward to a time not too
remote when it will become possible to eliminate Communalism as a force in the political and economic
life of the country” [Report of the Federation of Malaya Constitutional Commission page 71]. In addition
Ooi Kee Beng asserts that Tun Dr Ismail, one of the nation’s founding fathers, in his journals likened the
special privileges of the Malays to a golf handicap, only to be used until the time comes that such a crutch
is no longer needed [The Reluctant Politician]. It is clear therefore that the political elite and the traditional
rulers of the country did not envision “special privileges’ to be permanent nor did they envision it to be
some sort of special right. In this light, to treat special privileges as though it is some sort of inalienable
right is utterly wrong.
It is submitted that ultimately the Constitution was designed to be one that supported fundamental liberal
democratic principles. It acknowledges the inequity that existed in Malaya of 1957 and it also made certain
that the traditional values of the Malays (the sultanates and religion) were given a special place. The rulers
were constitutional monarchs with limited real power but tremendous symbolic strength, and Islam was
given special symbolic recognition as well as real authority over the personal laws of Muslims. This does
not in any way take away from the fact that a secular pluralistic system of governance, one that
valuedfundamental liberties, in particular equality, was the aim of the constitution and also the leaders of
the time.

How then did we get to a situation where pluralism has become an almost alien concept and where
enforced Malay hegemony the norm? Where did it all go wrong? Over the past thirty years there has been a
growing Islamization of Malaysia. This started with a Muslim Ummah enamoured with the Iranian
revolution and it took the form of personal changes, in dress, manner of speech and shifting value systems.
It did not however take long for Islam to start playing a larger role in politics and governance. It would be
folly to claim that Islam has never played a role in politics. The Islamic Party PAS for example had been in
existence since the fifties and have had a strong influence particularly in the east coast states.

But up till the fourth prime minister, the nation’s leaders have been emphatic in their stand with regard to
the secular nature of Malaysia. This changed in the 1980′s when Mahathir Mohammad realising the
challenges posed by PAS brought Anwar Ibrahim, the darling of Malaysia’s Islamists, into UMNO to add a
certain Muslim credibility to the party. Islamic “values” started to pervade governance, the International
Islamic University was opened and soon UMNO was well on its way to battling PAS on its own turf, both
seeking to out-Islamise each other. This battle culminated in Mahathir unilaterally declaring that Malaysia
was an Islamic state in the mid nineties.

This is of course very wrong on many levels. Firstly it is wrong from the perspective of the Constitution
which is secular as can be seen by its text, the preparatory work done on it as well as court decisions.
Secondly it is wrong because one person, no matter how powerful he may be, does not have the authority to
change the constitutional nature of the country in that way. The effect of Mahathir’s action (which was
supported after his reign by Abdullah Badawi’s Islam Hadhari and Najib Razak’s obtuse claim that
Malaysia has never been a secular country) was to galvanise the growing emphasis on Islam and all things
Islamic. This emboldened the Islamists and their influence can be seen in how even the courts have been
cowed by this unseen hand.

Thus in recent years we have seen great injustices like non Muslim husbands converting to Islam and then
filing for divorce in the Syariah Court (a forum which does not have jurisdiction over the non Muslim
spouse); newly Muslim husbands unilaterally converting the children; converts out of Islam being punished
and sometimes imprisoned for the “offence” of apostasy; non Muslims banned from using the word “Allah”;
the seizing of bibles at customs; the list goes on.

All these events have led to a feeling of great discomfort amongst non Muslims and perhaps amongst
many Muslims too for it reflected a growing intolerance as well as a growing ethos of religious superiority.
It does not bode well for a multi-ethnic, multi-religious secular pluralistic nation. And as pointed out earlier,
the courts have behaved in a craven fashion washing their hands of the Constitutional issues involved by
being quick to claim that matters like conversion (the Lina Joy case) and divorce and child custody (the
Subashini case) belonged in the Syariah court. It is submitted that a profound ignorance of the Constitution
and constitutional history is the source of these problems.

The prime ministers starting with Mahathir Mohammad have forgotten the legacy of the very men they
have lionised and the courts show a lack of constitutional principles which would be cause of concern even
in undergraduates. It has already been discussed about the secular nature of Malaysia and this won’t be
repeated, however it would be useful at this stage to look a little deeper at the court’s Pontius Pilate type
behaviour. Their excuse is that Article 121A of the Federal Constitution has drawn a clear line between the
jurisdiction of the Syariah Court and the Civil Courts. This is true. That line was drawn however with the
intention of ensuring that cases heard in the Syariah court will not be appealed in the civil courts. This
would in effect undermine the Syariah court’s authority over matters which are in their power to rule over.
Herein lie the heart of matter. Just what are the areas which the Syariah courts can make judgments on?

This is laid out in Schedule 9 of the Constitution. Schedule 9 is the legislative lists for the Federal and state
legislatures. The areas where Parliament can make laws and the areas where the state legislative assembly
can make laws are clearly stated. Seeing as how Islamic matters are in state hands, the jurisdiction of the
Syariah courts and their fields of concern are determined by laws made by the state in accordance with
Schedule 9. This list is quite specific and the state legislative assembly has power to make Syariah laws on
mainly family matters and matters regarding property.

There is however one general provision which states that they can also make laws regarding offences to”
precepts” of Islam. This appears to be a broad and undefined power. It is suggested however that such
seemingly unlimited power cannot have been the intention of the drafters of the constitution. All laws made
must still be within the general limitations and principles established by the Constitution. Therefore if
conversion out of Islam is treated as a punishable offence, then surely this would be in direct contradiction
with Article 11 and cannot be allowed. Schedule 9 is also very clear on the fact the Syariah court only has
jurisdiction over those who “profess the religion of Islam”. This being so any case which involves a non
Muslim must be heard in the civil court as the Syariah court simply does not have jurisdiction over that
individual.

On the issue of jurisdiction, although Article 121A separates the jurisdiction of the two court systems, it
does not mean that any matter concerning Islam is in the jurisdiction of the Syariah court. Surely if a matter
has a constitutional element in it, the only forum where it can be rightly heard s in the civil courts as
Schedule 9 does not make any provisions at all for the Syariah courts to decide on matters constitutional.
There is also a subversion of the idea of special privileges and an abuse of the constitutional provisions
related to it.

It may be argued that the real problems started with the introduction of the New Economic Policy (NEP).
After the racial riots of May 13 1969, the NEP was introduced. This policy started the aggressive
affirmative action meant to eradicate poverty ostensibly but in reality was implemented primarily to
increase Malay wealth. The activities conducted under the auspices of the NEP are broad and far reaching.
Some elements of these activities and practices may very well be unconstitutional as Article 8 states that
any discriminatory practices has to be expressly allowed for in the Constitution.

There are no express provisions for special Malay discounts on housing; neither are there any special
provisions for preferential treatment of Malays in government service. In fact Article 136 expressly
prohibits it. The NEP created a culture of entitlement, where Malays felt entitled to promotions,
government subsidies and other forms of aid. Furthermore, the constant eroding of the rights of the other
ethnic groups not only goes against the full wording of article 153 which states that the King has to protect
the legitimate interests of the non Malays as well, it has led to a sense of alienation amongst the non Malay
community and the haemorrhaging of talent as people leave the country of their birth but where they felt
unwanted.
This has left the nation with crumbling institutions and a dearth of able people. As pointed out earlier, such
measures were meant to be temporary. Therefore it would require to be reviewed consistently to see if the
desired effects are achieved. As it is the NEP was supposed to have ended in 1991, twenty years after its
inception. Instead it has been replaced by the National Vision Policy (NVP) and does not look to be ending
at any time “not to remote” or otherwise. Any review of the NEP or NVP is treated not as a means of
determining success or failure but as a challenge on Malay hegemony and rights. In 2006, Lim Teck Ghee
of the Asian Strategy and Leadership Institute (ASLI)’s Centre for Public Policy Studies co-authored a
report that suggested that Malay equity ownership had exceeded the 30% target and was in fact close to
45%. Therefore it was time that the NEP/NVP is stopped.

The government’s reaction was to dismiss the report claiming faulty analytical method. No public debate
was conducted regarding the findings and methodology. Instead the matter was swept under the carpet of
“sensitivity” and in fact accusations were hurled at Lim by government figures that he was biased due to
his Chinese ethnicity. This attitude is prevalent in Malaysian politics where Malay “privileges” have
become inalienable rights that cannot be questioned. A quick perusal of the Constitution shows that any
affirmative action has to be done reasonably. It is impossible to determine reasonable without public
discussion. Instead of keeping in line with the spirit of the constitution and the wishes of the founding
fathers, the government and their supporters have perverted the constitution for their own political agenda.

Things are made worse by UMNO’s constant racist posturing. Hishamuddin Hussein, the current Home
Affairs Minister was fond of aggressive gestures with bladed weapons when making fiery speeches about
“Malay rights”. Najib Razak was head of UMNO youth in the 80′s when that body organised a rally with
banners that were racially incendiary stating things like “We will bathe the keris in Chinese blood”. Even
today UMNO MPs and state representatives are fond of saying that non Malay citizens are immigrants and
should return to where they came from. This kind of thuggish behaviour is found amongst “defenders” of
Malay “rights” as well as “defenders of Islam”.

Mobs of Islamist have broken up peaceful forums discussing constitutional rights and family law all on the
pretext that such forums were insulting Islam. Yet, they are rarely punished and in one ludicrous case a
reporter who merely reported hate speech by a politician in Penang was detained under the Internal
Security Act while the perpetrator who uttered the racist words was left untouched. In such an atmosphere,
it is miraculous if even a semblance of a democratic, secular and pluralistic country, could even exist.

Conclusion
It is the contention of this paper that the Federal Constitution had put in place the necessary foundations to
build a secular, pluralistic democracy with provisions to ensure not only equality but equity. During the
fifty two years after its creation, these ideals have been perverted for the political mileage of the ruling
party. However, an effort to rebuild the nation in the shape that was envisioned in 1957 is still possible if
the following are put in place: A truly independent judiciary. A Government which understands the
Constitution and constitutionalism. A people willing to stand up for their rights as guaranteed by the
Constitution. Any less would make a Constitution, all its ideals and hopes, worth little more than the paper
it is printed on.

~~~~~

This paper was first presented at “Revisiting Pluralism in Malaysia” a seminar organised by the South East
Asian Studies programme, National University of Singapore, Singapore, 9 – 10 July 2009.