International Journal of Business, Humanities and Technology Vol. 2 No. 2; March 2012 A Brief Study on the Positive Attentions to Muslim Women’s Rights in Malaysia Nik Salida Suhaila Nik Saleh Senior Lecturer Faculty of Shariah and Law Islamic Science University of Malaysia Malaysia Abstract This paper examines the debate on the Malaysian laws on Muslim women’s rights with a view to identify whether the principle of gender equality governing the Muslim women’s rights laws are consistent with the global standard of women’s rights underpinned by the Convention on the Elimination of All Forms of Discrimination against Women (Women’s Convention) or not. Generally, Muslim women in Malaysia have been guaranteed legal rights as human, yet their rights are different from men because of gender. These differences have been criticized by international organisation, non-governmental organisations and individual as ‘intentional’ and purposely designed to disempowering women. In this paper, I also examine the influence of feminism in Malaysia which brought about positive attentions to women’s rights written debate in this country.By exploring the existing data of the works of leading scholars, their conceptual implications and reinterpretation, I have found that there has been a prevalent avoidance of the term ‘feminism’ in Malaysia, among others, due to the resistance of Western’s message pertaining to women’s rights issues in this local context. Even though there is a kind of ‘feminist’s phobia’ culturally, however, I argue that it does not affect an effort towards empowering Muslim women by applying the principle of equality informed by the Women’s Convention and the Islamic standard. Key words: Muslim women’s rights, feminism, gender equality, non-discrimination, formal and substantive equality 1.1 Introduction Malaysia1 acceded to the Convention on the Elimination of All Forms of Discrimination against Women (Women’s Convention)2 on 5 July 1995 with reservations3 to Article 2 (f), Article 5 (a), Article 7 (b), Article 9 and Article 16owing to its non-conformity with Shariah4 practiced in Malaysia5 and the Federal Constitution(United Nations Treaty Collection). The original reservations read as follows: ‘The Government of Malaysia declares that Malaysia’s accession is subject to the understanding that the provisions of the Convention do not conflict with the provisions of the Islamic Shariah law and the Federal Constitution of Malaysia. With regards thereto, further, the Government of Malaysia does not consider itself bound by the provisions of Articles 2 (f), 5 (a), 7 (b), 9 and 16 of the aforesaid Convention. In relation to Article 11, Malaysia interprets the provisions of this Article as a reference to the prohibition of discrimination on the basis of equality between men and women only’ (Declarations, Reservations and Objections to CEDAW, Division for the Advancement of Women). 1Malaysia was known as Malaya until 1963 when Sabah, Sarawak, Singapore and the Peninsular merged to form a single nation. Singapore left in 1965 2 GA Res. 34/180, 34 UN GAOR Supp. (No. 710.46) at 193, UN Doc. A/34/46 (1979); entered into force on 3 September 1981. See Online:http://www.un.org/womenwatch/daw/cedaw/. Retrieved on 12/03/2009 (hereinafter Women’s Convention) 3 Reservations are declarations made by State Parties to a treaty that they do not accept certain provisions as binding on them. Reservations are allowed so long as they are not incompatible with the object and purpose of the treaty. Incompatible reservations may be challenged by other State Parties. See Online: http://www.un.org/womenwatch/daw/cedaw/reservations.htm. Retrieved on 12/03/2009 4Shariah means ‘way’ or ‘path’, which refers to the sacred law of Islam 5 In Malaysia, the laws are mainly based on the common laws, as a result of the colonisation by Britain. Shariah only plays a small role in the country and has jurisdiction in personal matters which applies to Muslims only 163 © Centre for Promoting Ideas, USA www.ijbhtnet.com The Convention which was adopted on 18 December 1979 by the United Nations (UN)6 General Assembly7is often described as an international bill of rights for women and sets up an agenda for national action to end such discrimination (Division of Advancement of Women). Consisting of a Preamble and 30 Articles, it defines what constitutes discrimination against women and provides the basis for realizing equality between women and men. It targets social and cultural patterns as influential forces shaping gender roles and family relations (Article 5). Even though the Government of Malaysia ratified the Women’s Convention, it has been criticized by local non- governmental organisations, opposition political parties and international organizations as discriminating against Muslim women due to its refusal to accept certain provisions affecting Muslim women as binding on it. Along with this criticism, the primary objective of this paper is to analyse whether the legal protections of Muslim women in Malaysia underpinned by English common laws and Islamic textual sources (Quran and Prophetic traditions) or ijtihad8 of Muslim jurists could be harmonised with the Women’s Convention even though the Government of Malaysia ratified the Women’s Convention with reservations pertaining to personal laws of Muslims, which are rights to enter into marriage, maintenance, guardianship of children, polygamous marriage, dissolution of marriage and rights to choose a family name, a profession and an occupation. Personal laws refer to particular laws which govern people because they belong to a particular religion, race, caste, sect or tribe (Jaising, 1996). 1.2 Positive Attentions to Women’s Rights Debate In Malaysia, feminists’ writings are relevant and applicable (Ahmad and Baljit, 1989 and Stivens, 2003: 128-130). However, even though the idiom ‘feminism9’ is not necessarily synonym with ‘Western Feminism10’, there has been a prevalent avoidance of the term ‘feminism11’ in Malaysia (Mohamad and Koon, 1994). In the study of inter-related historical, legal and practical issues regarding gender and justice from the transmission of Egyptian reformist to Malaysia through the Azharites, no single word of ‘feminism’ being used12. The reason being, the influence of Western Women’s Liberation which was synonym with ‘Western Feminism’ has developed Malaysian women’s movements which carried along similar message and theme of Western’s women’s rights (Abd. Rahim, 2001: 7), which was not totally acceptable in the Malaysian Muslim local context. Stivens (2003: 129) has also found several reasons for this distancing which varied from the avoidance of ‘Western’ agenda to libertarianism. Not only that, feminists’ idea towards gender equality has been mistakenly understood as trying to develop a prejudice among women and men (Abd. Rashid, 1998: 10-11). Ahmad, a Malaysian feminist and a lawyer, has claimed that many Muslims regarded feminist approach as ‘an attempt to discredit and misrepresent Islam or that it stands for enmity between women and men’(Ahmad, 2007: 4). 6 The United Nations (hereinafter UN) is an international organization whose stated aims are facilitating cooperation in international law, international security, economic development, social progress, human rights and the achieving of world peace. The UN was founded in 1945 after World War II to replace the League of Nations, to stop wars between countries and to provide a platform for dialogue. It contains multiple subsidiary organizations to carry out its missions. See Online:http://www.un.org/en/aboutun/index .html. Retrieved on 12/03/2009 7 UN General Assembly was established in 1945 under the Charter of the UN. It occupies a central position as the chief deliberative, policymaking and representative organ of the UN. Comprising all 192 members of the UN, it provides a unique forum for multilateral discussion of the full spectrum of international issues covered by the Charter. It also plays a significant role in the process of standard-setting and the codification of international law. The Assembly meets in regular session intensively from September to December each year and thereafter as required. See Online: http://www.un.org/en/ga/about/index. html. Retrieved on 12/03/2009 8 Literally, the term ‘ijtihad’implies striving hard or strenuousness, but technically it means exercising independent juristic reasoning to provide answers when the Quran and Prophetic traditionare silent on a particular subject 9‘Feminism’ refers to the struggles of women’s movement in Europe, United States and the colonised countries in the 19th and early 20th centuries. See Ng, Cecilia, Mohammad, Maznah and Hui, Tan Beng. 2006. Feminism and the Women’s Movement in Malaysia: An Unsung (R) evolution. London and New York: Routledge 10 The concept of feminism was neither originated, imported nor imposed from the West into the Third World Countries, as the debates on women’s rights were held as early as 18th century in China and later in India, Iran, Turkey, Egypt, Japan as well as Malaysia. See Jayawardeena, Kumari. 1986. Feminism and Nationalism in the Third World. London: Zed Press 11In Malaysia, the term ‘womanism’ is used interchangeably with the word‘feminism’ 12See Noor, Zanariah. 2007. ‘Gender Justice and Islamic Family Law Reform in Malaysia’ in Kajian Malaysia. Jil. XXV. No. 2 164 International Journal of Business, Humanities and Technology Vol. 2 No. 2; March 2012 That is why women’s movements in Malaysia comfortably used the word ‘womanism’ instead of feminism. Ng, Mohamad and Hui (2006) have thoroughly studied about women’s movements in Malaysia and explained the reasons of inability of feminism to play a key role in reforming society in Malaysia. According to them, which I found out as one of the reasons of distancing from feminisms, feminists’ movements in Malaysia were not until late 1980s engaged with Islam and Islamic intellectuals regarding women’s rights. Also, feminists’ organisations were not incorporate Islamic paradigm in their early generations.