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Mental Illness – Corruption – Domestic Violence – State Protection

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Mental Illness – Corruption – Domestic Violence – State Protection Refugee Review Tribunal AUSTRALIA RRT RESEARCH RESPONSE Research Response Number: MYS33296 Country: Malaysia Date: 21 May 2008 Keywords: – Malaysia – Divorce – Sikhs – Divorced women – Discrimination – Religious extremists – Violence – Rape – Honour killings – Mental illness – Corruption – Domestic violence – State protection This response was prepared by the Research & Information Services Section of the Refugee Review Tribunal (RRT) after researching publicly accessible information currently available to the RRT within time constraints. This response is not, and does not purport to be, conclusive as to the merit of any particular claim to refugee status or asylum. This research response may not, under any circumstance, be cited in a decision or any other document. Anyone wishing to use this information may only cite the primary source material contained herein. Questions 1. How easy is it to obtain a divorce in (a) Malaysia and (b) as a Sikh in Malaysia? 2. Is there significant social stigma and ostracism attached to divorced and/or separated women in Malaysia? If so, what form does the discrimination take? 3. Are divorced women likely to be targeted by religious extremists or any other actors? 4. Is a divorced woman and/or woman separated from her husband more vulnerable to violence in general and rape in particular? 5. Is there evidence of ‘honour killings’ in circumstances where a woman has separated from her husband in Malaysia? 6. Is there much social stigma attached to people suffering from mental illness in Malaysia? If so, how does this manifest and to what extent? 7. Please provide an update on the status of police (and general) corruption in Malaysia - is this gendered? (i.e. are women more likely to be affected by such corruption?) 8. Is there state protection for victims of domestic violence (including spousal rape)? Is there a gap between law/policy and practice in this regard? RESPONSE 1. How easy is it to obtain a divorce in (a) Malaysia and (b) as a Sikh in Malaysia? A States parties report dated 12 April 2004 by Malaysia to the United Nations Committee on the Elimination of Discrimination against Women indicates that: In Malaysia, family law matters are governed by a combination of Civil, Syariah (Islamic laws) and Adat (customary) laws. The concept of women’s equality in Malaysia is based on the culture and traditional beliefs of its various ethnic groups with the influence of religious values. As such, there is little room for negotiation or deviation from the normal norms or practices… For instance, in all cultures in Malaysia, a wife is expected to obey her husband who includes the husband’s family and to behave according to their wishes. The report indicates that in relation to Muslims, “[u]nder the Federal Constitution, Islam falls under the purview of the State” and “[e]ach State, therefore, has its own set of Islamic laws”. It is stated in the report that: 383. In terms of family law for Muslims the basic principle is almost the same with other states within the Federation with slight differences in the wordings and practices as well as implementation. Therefore, the Islamic Family Law (Federal Territories) Act 1984 (IFLA) will be mentioned specifically in this report wherever there is a reference to such legal provisions besides comparing it with the other State Enactments (laws that are passed by State Authorities) whenever necessary. In relation to non-Muslims in Malaysia, “the Law Reform (Marriage and Divorce) Act (LRA) 1976, will be applicable.” That Act “has been described as: “An Act which seek to lay down a uniform law on marriage and divorce and matters incidental thereto, applicable to all non-Muslim residents in Malaysia, as well as to all citizens of or domiciled in Malaysia residing abroad.” The report includes the following information on divorce for Muslims and non-Muslims in Malaysia: Non-Muslim Divorce 420. The LRA requires that all divorces be registered. The various stages of the process of divorce generally do not discriminate women. 421. The LRA provides that couples may seek a divorce and determine the terms of the divorce by mutual consent. In such cases, the court may make a decree of divorce upon being satisfied that, inter alia, proper provision is made for the wife and the children. Judges usually do not intervene in mutual consent divorces unless it appears that the provision made for the children’s maintenance is insufficient. 422. Divorce can also be obtained on the grounds that the marriage has irretrievably broken down. Generally, the courts will accept that the marriage has broken down in any of these situations: a) The respondent has committed adultery and the petitioner finds it intolerable to live with him/her; b) The respondent has behaved in such a way that the petitioner cannot reasonably be expected to live with him/her; c) The respondent has deserted the petitioner for a continuous period of at least two years immediately preceding the presentation of the petition; d) The parties to the marriage have lived apart for a continuous period of at least two years immediately preceding the presentation of the petition. Muslim Divorce 423. Divorce among Muslims in Malaysia must be pronounced in court. Section 47 of the IFLA provides that whoever desire divorce shall file in an application for divorce to the Syariah Court. It is an offence under the IFLA if the divorce is pronounced outside court. 424. However, if the talaq is pronounced outside the court, the parties may still refer the matter to court for verification to the termination of the marriage. In Malaysia, a Muslim wife can divorce her husband on grounds based on the prescribed ta’lik (a promise expressed by the husband after solemnisation of marriage), on grounds of failure to maintain the wife or on the ground of the absence of the husband for more than four months and on the ground of violence against the wife. 425. A woman may also petition to court for fasakh or khuluq which has the effect of dissolving the marriage. The court after hearing the application may order the husband to pronounce talaq. 426. Under the IFLA, if the husband wishes to ruju’ (resume conjugal relationship) with his divorced wife, the recohabitation must take place by mutual consent and without force (United Nations Committee on the Elimination of Discrimination against Women 2004, ‘Consideration of reports submitted by States parties under article 18 of the Convention on the Elimination of All Forms of Discrimination against Women – Combined initial and second periodic reports of States parties – Malaysia’, United Nations Division for the Advancement of Women website, CEDAW/C/MYS/1-2, 12 April, pp. 105 & 110-111 http://www.un.org/womenwatch/daw/cedaw/35sess.htm – Accessed 16 May 2008 – Attachment 1). A copy of Malaysia’s Law Reform (Marriage and Divorce) Act 1976, as amended to 1 January 2006, is attached (Government of Malaysia 1976, ‘Law Reform (Marriage and Divorce) Act 1976 (Incorporating all amendments up to 1 January 2006)’, Act 164, Attorney- General’s Chambers of Malaysia website, March http://www.agc.gov.my/agc/oth/Akta/Vol.%204/Act%20164.pdf – Accessed 21 May 2008 – Attachment 2). A legal profile of Islamic family law in Malaysia which includes information on divorce for Muslims in Malaysia is also attached (‘Islamic Family Law – Legal Profile – Malaysia’ (Undated), Emory University School of Law website http:/ /www.law.emory.edu/ifl/legal/malaysia.htm#text – Accessed 25 January 2008 – Attachment 3). The US Department of State report on religious freedom in Malaysia for 2007 refers to the treatment of Muslim women in Shari’a courts, including in relation to divorce. According to the report: Shari’a laws are administered by state authorities through Islamic courts and bind all Muslims, most of whom are ethnic Malays. Shari’a laws and the degree of their enforcement varied from state to state. Shari’a courts do not give equal weight to the testimony of women. Several nongovernmental organizations (NGOs) dedicated to advancement of women’s rights complained that women did not receive fair treatment from Shari’a courts in matters of divorce and child custody. In December 2005 Parliament passed the Islamic Family Law Act (IFLA) in an effort to harmonize Shari’a laws throughout the country. The IFLA would have weakened a Muslim wife’s ability to control her private property during marriage, as well as enhanced the ability of Muslim men to divorce, take multiple wives, and claim an existing wife’s property upon taking a new wife. Following protests from women’s rights advocates about these and other provisions of the IFLA, the attorney general commenced a review of the law. As of June 30, 2007, the law had not been gazetted; the attorney general’s chamber continued to review proposed amendments to the IFLA (US Department of State 2007, International Religious Freedom Report 2007 – Malaysia, September, Section II – Attachment 4). The US Department of State report on human rights practices in Malaysia for 2007 notes that “a review of amendments” to the Islamic Family Law Act “continued at year’s end.” The report also indicates that “[t]here was a small but steadily increasing number of women obtaining divorces under the provisions of Shari’a that allow for divorce without the husband’s consent” (US Department of State 2008, Country Reports on Human Rights Practices for 2007 – Malaysia, March, Sections 2(c) & 5 – Attachment 5). An article in The Straits Times dated 4 April 2006 refers to Datin Paduka Marina Mahathir, the daughter of former Malaysian premier, Mahathir Mohamad, declaring that “Malaysia’s Muslim women are second-class citizens, held back by discriminatory family laws that do not apply to non-Muslims.” The article also refers to Islamic family laws allowing “an easier divorce procedure for men than women.” It is stated in the article that: Muslims are governed by Islamic family laws that set the rules for marriage, divorce, guardianship and inheritance.
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