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CEDAW in Malaysia. The CEDAW Convention was adopted by the UN General Assembly on 18 th December 1979 and entered into force on September 3, 1981. With 185 States parties, it remains one of the most highly ratified human rights treaties. . Structure of the Convention. Articles 17-23

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Shanthi Dairiam


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Structure of the Convention on 18

Articles 17-23

Committee and Procedures

Shanthi Dairiam


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THE CEDAW CONVENTION IS A HUMAN RIGHTSTREATY on 18

  • Treaty law imposes obligations that are legally binding on the State . Eg.

  • States commit to reordering domestic law and policy, as it touches on matters, which is the subject of the treaty concerned, according to universal and international standards.

  • States parties submit themselves to international scrutiny by reporting periodically to the United Nations.

Shanthi Dairiam


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The requirement to report to the UN on 18

  • Parties to human treaties report on compliance with obligations under the treaty to the UN.

  • Under the CEDAW a report has to be submitted one year after ratification and every four years thereafter

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The CEDAW Committee on 18

  • 23 experts from various regions

  • Nominated and elected by State Parties for 4 year terms

  • Serve in their personal capacity

  • Function: Review State implementation of CEDAW through the reporting process

  • Issue Concluding Observations

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CEDAW

PROMOTE AND FULFIL

SUBSTANTIVE EQUALITY

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Prohibition of discrimination on 18

  • Discrimination is defined in article 1 as both overt and subtle, intended or unintended direct or indirect

  • Discrimination is an act that has the purpose or the effect of denying women the exercise of human rights and fundamental freedoms in all economic, social political and cultural fields

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Liability exercise of rights by women but failed to do so because it did not take into consideration the pre existing subordination and disadvantage experienced by women, then it would constitute discrimination.

  • Public and private individuals and organizations or enterprises

  • With the State having to exercise due diligence

    to regulate

    Impose sanctions and penalties

    Provide remedies

    Create complaints mechanisms and institutions

Shanthi Dairiam


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Achievement of equality exercise of rights by women but failed to do so because it did not take into consideration the pre existing subordination and disadvantage experienced by women, then it would constitute discrimination.

Obligation to put in place:

Formal legal and policy guarantees for equality (enabling conditions temporary special measures) as well as for

Its practical realization (de jure and de facto

Provisions for equality in opportunity in all fields, access to the opportunity and

State has an obligation for Equality of outcomes

Shanthi Dairiam


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Malaysia and CEDAW exercise of rights by women but failed to do so because it did not take into consideration the pre existing subordination and disadvantage experienced by women, then it would constitute discrimination.

  • Malaysia ratified CEDAW in June 2005

  • It has reservations to articles:

  • 5b: Modifying cultural patterns of conduct that may constitute discrimination- Malaysia mentions inheritance

  • 7b: Equality in holding public office-Malaysia mentions the position of Syariah judges

  • 9: equality in matters of nationality

  • 16a: Equal right to enter into marriage

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  • 16c: Equality during marriage and at its dissolution exercise of rights by women but failed to do so because it did not take into consideration the pre existing subordination and disadvantage experienced by women, then it would constitute discrimination.

  • 16f: Equal guardianship rights

  • 16g: Equal right to choose a family name and profession

    Of the eight human rights treaties Malaysia has ratified only two: CEDAW and CRC

Shanthi Dairiam


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Malaysia’s report to CEDAW exercise of rights by women but failed to do so because it did not take into consideration the pre existing subordination and disadvantage experienced by women, then it would constitute discrimination.

  • Malaysia was reviewed by the CEDAW Committee in 2006.

  • Its report was overdue by almost 10 years

  • Its third and fourth periodic report was due in 2008

Shanthi Dairiam


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Positive aspects exercise of rights by women but failed to do so because it did not take into consideration the pre existing subordination and disadvantage experienced by women, then it would constitute discrimination.

  • Delegation headed by KSU of the MWCFD

    and was inter ministerial

  • Frank and constructive dialogue

  • The State party is considering withdrawing its reservations to article 5 (a) and 7 (b).

  • Achievements in women’s education

Shanthi Dairiam


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Positive aspects contd. exercise of rights by women but failed to do so because it did not take into consideration the pre existing subordination and disadvantage experienced by women, then it would constitute discrimination.

  • Institutional arrangements

  • Cabinet committee on equality

  • Establishment of gender focal points

  • Law reform attempts

  • DV Act: broadening definition

  • Adding provisions to existing laws to prohibit sexual harassment

Shanthi Dairiam


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Concluding observations Recommendations exercise of rights by women but failed to do so because it did not take into consideration the pre existing subordination and disadvantage experienced by women, then it would constitute discrimination.

LEGAL FRAMEWORK

  • The Convention must be incorporated into national law and become applicable in the domestic legal system

  • Notwithstanding the constitutional provision for equality, Committee expresses concern at the narrow interpretation of equality by the courts: there is a need for a definition of discrimination as per article 1 of the Convention

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  • Enact a comprehensive law reflecting substantive equality governing both public and private spheres- (Law on gender equality) and include adequate sanctions and remedies for acts of discrimination against women

  • All reservations to be reviewed with a view to removing them especially article 16

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  • Convention to be made an integral part of the education of judges, lawyers and prosecutors to establish legal culture supportive of women’s equality and non discrimination

  • Remove inconsistencies and conflicts between civil and Syariah law to be in compliance with the Constitution and the Convention and CEDAW’s general recommendation 21 on equality in marriage and family relations

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Recommendations: Sectoral /thematic issues ensure consistency of application of Syriah laws across all states

  • Implement comprehensive measure to eliminate stereotyping

  • Low level of women’s participation in political and public life:

    - Establish concrete goals and timetables so as to accelerate the increase in the representation of women, in elected and appointed bodies in all areas of public life, including at the international level.

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  • The Committee invites the State party to also encourage political parties to use quotas.

  • It recommends that the State party conduct training programmes on leadership and negotiation skills for current and future women leaders.

  • It also encourages the State party to take measures that will lead to an increase in the number of women at the decision making level in private sector organizations.

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  • Mismatch between women’s educational achievements and their opportunities in the labour market:

    - Accelerate the achievement of de facto equal opportunities for women with men in the area of employment through, inter alia, the use of temporary special measures in accordance with article 4, paragraph 1, of the Convention,

Shanthi Dairiam


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- Implement of efforts to promote change concerning the stereotypical expectations of women’s roles and

the equal sharing of domestic and family responsibilities between women and men, including by

- making the flexible work arrangements envisaged in the Ninth Malaysia Plan equally available to women and men.

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  • Violence against women: stereotypical expectations of women’s roles and

  • Enact legislation criminalising marital rape

    - Trafficking: consider ratifying the Protocol to Prevent, Suppress and Punish Trafficking in Persons, especially Women and Children Supplementary to the United Nations Convention against Transnational Organized Crime

    - Intensify its efforts to combat all forms of trafficking in women and girls, including by enacting specific and comprehensive legislation on the phenomenon.

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- Increase its efforts at international, regional and bilateral cooperation

- Ensure that trafficked women and girls are not punished for violations of immigration laws and have adequate support to be in a position to provide testimony against their traffickers.

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  • Mi bilateral cooperationgrant workers:

    - Enact comprehensive laws and establish procedures to safeguard the rights of migrant workers, including migrant domestic workers.

    - Provide migrant workers viable avenues of redress against abuse by employers and permit them to stay in the country while seeking redress.

    - Make migrant workers aware of such rights.

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  • Asylum seekers and refugees: bilateral cooperation

  • Adopt laws and regulations relating to the status of asylum-seekers and refugees in Malaysia, in line with international standards

    - Fully integrate a gender-sensitive approach

    throughout the process of granting asylum/refugee status, in close cooperation with appropriate international agencies in the field of refugee protection, in particular the Office of the High Commissioner for Refugees.

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  • Position of women from various ethnic groups: bilateral cooperationInclude in its next report, data disaggregated by sex and ethnicity in all areas covered by the Convention and current sex-disaggregated data and information on the de facto position of rural women in all sectors.

  • The Committee encourages the State party to ratify the Optional Protocol to the Convention

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  • Next report: requests the State party to ensure the wide participation of all ministries and public bodies in, and to continue to consult with non governmental organizations during, the preparation of its next report.

    It encourages the State party to involve parliament in a discussion of the report before its submission to the Committee.

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  • Consider ratifying the treaties to which it is not yet a party

  • Requests the wide dissemination in Malaysia of the present concluding comments in order to make the people of Malaysia, including government officials, politicians, parliamentarians and women’s and human rights organizations, aware of the steps that have been taken to ensure de jure and de facto equality of women, as well as the further steps that are required in that regard.

Shanthi Dairiam


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Japan party

Court case


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  • In Japan, the Osaka Appeals Court instructed that the appellants (all women) and the respondent in a labour case, reach an amicable settlement based on the principles of equality and non- discrimination and gave specific recommendations with regard to the same The court in its statement pointed out that national action must concur with international efforts towards the elimination of sex discrimination.

Shanthi Dairiam


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  • The appellants had made specific reference to CEDAW’s Concluding Comments to Japan which pointed out the flaw in the guidelines in Japan’s Equal Employment Opportunity Law as lacking an understanding of indirect discrimination.

  • The Appeals court of Japan cited above stated, “It must be borne in mind, that to tolerate the vestiges of discrimination based on past social understandings would result in turning ones back to the progress in the society.”

Shanthi Dairiam


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Influence the Composition of the CEDAW Committee Concluding Comments to Japan which pointed out the flaw in the guidelines in Japan’s Equal Employment Opportunity Law as lacking an understanding of indirect discrimination.

Participation in the preparation of the State Report

Submission of Alternative Information and Presence during the Constructive Dialogue

Pressuring Governments to Implement Concluding Comments (e.g. Publicizing the Concluding Comments)

Role of NGOs

Shanthi Dairiam