“Commitment, dedication, focus and mobilizing the affected, amplifying their voice, making visible their reality is the basis of lasting social change.”– Shanthi Dairiam, Women’s Human Rights Activist and Equality Specialist
Globally, women’s rights groups have come together to undertake various forms of activism for the promotion, protection, and fulfillment of women’s rights. Foremost among such activism is law reform. In Malaysia, the women’s groups have been successful in creating new laws such as Law Reform (Marriage And Divorce) Act 1976, The Domestic Violence Act 1994, or in amending existing laws to grant equal rights to women such as introducing equal pay for equal work introduced into The Employment Act, The Guardianship Act, The Distribution Act and amendments to the Constitution to include gender as prohibited grounds for discrimination. Currently, women are advocating for a Gender Equality Law and a Sexual Harassment Law as well as for provisions on stalking in the Penal Code.
But what we need to consider is whether barriers to women’s equality lie only in the substance of the law. A useful framework to identify legal barriers is to look at three interactive components of the law—its substance, structures, and culture. Barriers in the law may exist in the substance of the law, in the structures through which the law operates, and the culture which constitutes the values of the community. In examining the position of the community and the legal systems towards women it is essential to make explicit that the cultural and legal bias towards women is differentiated with regard to different groups of women based on their minority, ethnic and other identities.
I wish to examine here only the structures and culture of the law. If we are satisfied with the substance of the law, we need to ask the following questions relating to the structures of the law.
How is the law interpreted and implemented? For example, how gender-sensitive are the judiciary and other enforcers of the law? Is the State making an effort to train them? How have the judges interpreted the equality clause, article 8 in the Federal Constitution?
Are the police efficient and effective when they investigate crimes against women? How cumbersome, long drawn out, or expensive are the court procedures?
Are there effective administrative structures and procedures where necessary to implement the provisions of the law? Do women have access to legal aid, legal counsel, etc.? What support services are there for women who wish to claim their rights?
In my view, we are not asking these questions enough. For example, the 2018 Concluding Observations of the CEDAW Committee made some critical recommendations under the rubric of Access to Justice.
The Committee asked Malaysia to,
- a) “Simplify the procedure for gaining access to legal aid and ensure that it is available and accessible to all women, regardless of nationality in all cases of criminal, civil, social, administrative, constitutional, and family law;
- (b) Identify and address the specific obstacles faced by women who are in disadvantaged situations, including migrant women, in particular undocumented migrant women, women held in immigration detention centers, and asylum-seeking and refugee women, so as to ensure that they have access to justice and recourse to effective remedies;
- (c) Strengthen the gender responsiveness and gender sensitivity of the justice system, including by increasing the number of women in the justice system and providing systematic capacity-building for judges, prosecutors, lawyers, police officers, and other law enforcement officials on the Convention, the Committee’s jurisprudence and its general recommendations;
- (d) In its next periodic report, provide data disaggregated by sex, age, nationality, and other relevant factors on the number of applicants for legal aid, the number of individuals who were assisted, and the number of cases that were concluded in favor of the applicant.”
As far as I know, women’s groups have not followed up on these recommendations and advocated strongly for their implementation. To begin with, advocacy has to be evidence-based. Recommendation (d) is significant for it will tell us where some of the gaps are. It is more than 3 years since these recommendations were made but do we know whether the Ministry of Women, Community, and Family Development has collected this data? At least, are we advocating that such access to justice issues is included in the 12th Malaysia Plan and adequate budgets allocated?
A further question to ask is “What is the culture of the law?” For example, What is the value system in which the law is rooted and implemented? What is the bias within the culture of the society as well as in the legal system directed against women? Does the culture permit women to demand their rights?
Bias against women in the law and its implementation is global. In a case from the United States, Jessica Lenahan vs USA Lenahan’s daughters were abducted by her estranged husband and killed after the Castle Rock, Colorado police repeatedly refused to enforce her domestic violence restraining order against him. In 2005, in Town of Castle Rock v. Jessica Gonzales, the Supreme Court found that the police had no constitutional duty to enforce her restraining order, thereby leaving her without a remedy.
Lenahan subsequently filed a complaint against the United States before the Inter-American Commission, claiming human rights violations by the local police for failing to protect her and her children, and human rights violations by the U.S. courts, which failed to provide her with a remedy. The report of this case also points out that one of the most serious historical limitations of civil restraining orders has been their widespread lack of enforcement by the police. The Report further stated that Police officers still tend to support “traditional patriarchal gender roles, making it difficult for them to identify with and help female victims.” This is the key. It is not only about the technicalities of the law, skills building, or increased budgets. It is about valuing women as equal citizens.
In the Jessica Lenahan Gonzales case one significant recommendation of the Inter-American Commission is:
- “To continue adopting public policies and institutional programs aimed at restructuring the stereotypes of domestic violence victims, and to promote the eradication of discriminatory socio-cultural patterns that impede women and children’s full protection from domestic violence acts.”,
While many barriers exist in relation to women’s access to justice through the law, we cannot be dismissive of the law. We need to engage in the totality of the law. The law and its implementation are based on a system of social values and norms. This is called the culture of the law. Any attempts at the reform of the law must be holistic, taking into consideration the need for change not only in the substance but also in the structure and culture of the law.
 This framework is elaborated by Schuler M, in Empowerment and the Law, Strategies of Third World Women. OEF International 1986. The framework was first used by Lawrence Friedman in Legal Culture and Social Change.
(i) IWRAW Asia Pacific Training Materials: “Building Capacity for Change”, 2008.
(ii) Shanthi Dairiam. A general overview of barriers women face in accessing justice. Southeast Asia Regional Judicial Colloquium on Gender Equality Jurisprudence and the Role of the Judiciary in Promoting Women’s Access to Justice : UN Women. 4-5 September 2013