* Adopted by the Committee at its sixty-ninth session (19 February–9 March 2018).

Concluding observations on the combined third to fifth periodic reports of Malaysia *

1.The Committee considered the combined third to fifth periodic reports of Malaysia (CEDAW/C/MYS/3-5) at its 1572nd and 1573rd meetings, on 20 February 2018 (see CEDAW/C/SR.1572 and CEDAW/C/SR.1573). The Committee’s list of issues and questions is contained in CEDAW/C/MYS/Q/3-5 and the responses of Malaysia are contained in CEDAW/C/MYS/Q/3-5/Add.1.

A.Introduction

2.The Committee appreciates the submission by the State party of its combined third to fifth periodic reports, but regrets the eight-year delay. It also appreciates the State party’s written replies to the list of issues and questions raised by the pre‑sessional working group. It welcomes the oral presentation by the delegation and the additional clarification provided in response to the questions posed orally by the Committee during the dialogue.

3.The Committee commends the State party on its large and multisectoral delegation, which was headed by the Secretary-General of the Ministry of Women, Family and Community Development, Suriani Ahmad. The delegation also included representatives of the Ministry of Home Affairs, the Chambers of the Attorney General, the Ministry of Education, the Ministry of Health, the Ministry of Rural and Regional Development, the Ministry of Human Resources and the Permanent Mission of Malaysia to the United Nations Office and other international organizations in Geneva.

4.The Committee appreciates the open and constructive dialogue that took place between the delegation and the members of the Committee, 12 years after the last dialogue, in 2006. However, it regrets the lack of relevant and sufficient data provided by the delegation in response to the majority of questions posed by the Committee during the dialogue.

B.Positive aspects

5.The Committee welcomes the progress achieved since the consideration in 2006 of the State party’s combined initial and second periodic reports (CEDAW/C/MYS/CO/2) in undertaking legislative reforms, in particular the adoption of the following:

(a)Amendments to the Penal Code to increase the penalties for offences relating to rape and incest, in 2006;

(b)Anti-Trafficking in Persons Act of 2007, subsequently amended as the Anti-Trafficking in Persons and Anti-Smuggling of Migrants Act of 2007, in 2010, and further amended in 2015;

(c)Amendments to the Domestic Violence Act of 1994 to widen the definition of domestic violence to include emotional, mental and psychological forms of violence, in 2011, and to improve protection for survivors of abuse, in 2017;

(d)Amendments to the Employment Act of 1955 to prohibit sexual harassment in the workplace and to extend maternity leave benefits to all women employees, in 2012.

6.The Committee welcomes the fact that, in the period since the consideration of the previous report, the State party has ratified or acceded to the following international instruments:

(a)Convention on the Rights of Persons with Disabilities, in 2010;

(b)Optional Protocol to the Convention on the Rights of the Child on the involvement of children in armed conflict, in 2012;

(c)Optional Protocol to the Convention on the Rights of the Child on the sale of children, child prostitution and child pornography, in 2012.

7.The Committee also notes with appreciation the initiatives taken by the State party to promote gender equality, such as the adoption of the national women’s policy and action plan, 2009–2015, the policy objective of achieving women’s representation in at least 30 per cent of decision-making positions in the public and private sectors and efforts to encourage the private sector to implement flexible working arrangements to provide wider opportunities for women to participate in the labour force.

C.Parliament

8. The Committee stresses the crucial role of the legislative power in ensuring the full implementation of the Convention (see the statement by the Committee on its relationship with parliamentarians, adopted at the forty-fifth session, in 2010). It invites Parliament, in line with its mandate, to take the necessary steps regarding the implementation of the present concluding observations between now and the submission of the ne xt periodic report.

D.Principal areas of concern and recommendations

Reservations

9.The Committee welcomes the withdrawal by the State party of its reservations to articles 5 (a), 7 (b) and 16 (2) of the Convention in July 2010. However, the Committee notes with concern the remaining reservations to articles 16 (1) (a), (c), (f) and (g), which are contrary to the object and purpose of the Convention, but continue to be justified by the State party on the grounds that those provisions are not compatible with the Federal Constitution and Islamic or Syariah law. It further notes with concern that the State party has not taken steps to withdraw its reservation to article 9 (2) of the Convention or to give effect to the withdrawal of its reservation to article 16 (2).

10. The Committee reiterates its previous recommendation (see CEDAW/C/MYS/CO/2 , para. 10) that the State party demonstrate its commitment to eliminating all forms of discrimination against women by withdrawing all of its remaining reservations to articles 9 and 16 within a clear time frame so as to ensure the full applicability of the Convention in the State party.

Constitutional and legislative framework

11.The Committee reiterates its previous concern that the Convention is not yet part of the national legal system and thus its provisions are not enforceable in national courts. It also reiterates its concern about the continued absence of a definition of discrimination against women in the State party’s legislation in accordance with article 1 of the Convention, and about the narrow interpretation of the courts of the prohibition of gender-based discrimination under article 8 (2) of the Federal Constitution, restricting it to acts committed by the authorities and not protecting women against discrimination by private actors, such as private employers. While the Committee notes the intention, expressed by the State party since 2006, to adopt a gender equality act that incorporates the provisions of the Convention, it regrets the lack of any progress made in that regard. The Committee is also concerned that the lack of legal clarity and that the inconsistent application of the Convention is further compounded by the federal structure of the State party. The Committee is further concerned about the existence of a parallel legal system of civil law and multiple versions of Syariah law, which have not been harmonized in accordance with the Convention, as previously recommended by the Committee (see CEDAW/C/MYS/CO/2, para. 14), which leads to a gap in the protection of women against discrimination, including on the basis of their religion. The Committee also regrets the lack of measures taken to ratify the Optional Protocol to the Convention.

12. Recalling its previous recommendations ( CEDAW/C/MYS/CO/2 , paras. 8 and 12) and its general recommendation No. 28 (2010) on the core obligations of States parties under article 2 of the Convention, the Committee recommends that the State party:

(a) Take immediate measures to ensure that the Convention and its provisions are incorporated into national law and become fully enforceable in the national legal system;

(b) Adopt a concrete time frame for the adoption of a gender equality act that defines and prohibits all forms of discrimination against women, encompassing direct and indirect discrimination in the private and public spheres and intersecting forms of discrimination against women, in line with article 1 of the Convention and target 5.1 of the Sustainable Development Goals;

(c) Take effective measures to ensure that civil law and Syariah law are in full compliance with the provisions of the Convention at the local, state and federal levels so as to ensure that the rights of all women are legally guaranteed on an equal footing throughout the State party. The Committee reminds the State party that provisions of its internal law cannot be used as justification for its failure to abide by its obligations under the Convention;

(d) Adopt a concrete time frame for the ratification of the Optional Protocol to the Convention.

Access to justice

13.The Committee appreciates the State party’s efforts to improve access to legal aid by introducing the legal aid (amendment) bill, 2017, which aims at introducing a more practical approach to determine a person’s eligibility for legal aid. Nevertheless, the Committee remains concerned about the existence of multiple barriers impeding women’s and girls’ access to justice and effective remedies for violations of their rights, including discriminatory stereotypes and gender biases among personnel throughout the justice system and the exclusion, except in capital punishment cases, of non-nationals from gaining access to legal aid services offered by the State. The Committee is concerned that such obstacles negatively impact women who are already in precarious situations, such as migrant women, in particular undocumented migrant women, women held in immigration detention centres and asylum-seeking and refugee women.

14. Recalling its general recommendation No. 33 (2015) on women ’ s access to justice, the Committee recommends that the State party:

(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 centres, 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 favour of the applicant.

National machinery and policies for the advancement of women

15.The Committee appreciates the efforts made by the Ministry of Women, Family and Community Development, as the national women’s machinery, to adopt policies and strategies aimed at the advancement of women, such as the national policy on women and its associated national action plan, gender mainstreaming programmes, and gender-responsive budgeting. However, the Committee is concerned about their limited effectiveness, as acknowledged by the State party, due to the lack of political will and understanding on the part of Government agencies with regard to gender equality and the lack of institutional mechanisms, including the lack of capacity to advise Government agencies and to monitor, track and evaluate policies and programmes. The Committee also regrets the lack of data disaggregated by sex that could be used to identify areas where substantive equality between women and men is lacking and to evaluate the impact of measures taken to address the situation.

16. The Committee recommends that the State party:

(a) Ensure that all policies, strategies and action plans aimed at the advancement of women, such as the national women ’ s policy and plan of action, gender mainstreaming and gender-responsive budgeting, are accompanied by clear targets, indicators and time frames and effective coordination, monitoring and evaluation mechanisms;

(b) Provide systematic and regular training to officials responsible for the planning and implementation of policies, strategies and action plans aimed at the advancement of women, so as to increase their awareness, knowledge and capacity with respect not only to technical matters, but also to gender equality;

(c) Ensure that gender mainstreaming is applied consistently in the development and implementation of all laws, policies and programmes in all ministries and legislative structures, including by strengthening training programmes and the gender focal point system and establishing a coordinating committee across agencies;

(d) Ensure that gender-responsive budgeting is integrated into outcome-based budgeting and is effectively institutionalized through a comprehensive road map in all government agencies at the federal, state and local council levels;

(e) Develop a comprehensive system to collect, analyse and publish data on all areas covered by the Convention, disaggregated by sex, age, disability, ethnic origin, religion and other relevant factors, so that such data and analyses can be used for the formulation of laws, policies and plans, as well as for the monitoring and evaluation of their implementation and that of the Sustainable Development Goals.

Temporary special measures

17.The Committee appreciates the initiatives taken by the State party to increase the participation of women in the labour force and their numbers in decision-making positions, such as the targets set out in the eleventh Malaysia plan, 2016–2020. However, the Committee is concerned that the use of temporary special measures has been limited and that the measures that have been adopted thus far lack specific guidelines and mechanisms for implementation, monitoring and evaluation.

18. The Committee recommends that the State party:

(a) Ensure that temporary special measures are accompanied by specific guidelines and mechanisms to ensure effective implementation, monitoring and evaluation in accordance with article 4 (1) of the Convention and the Committee ’ s general recommendation No. 25 (2004) on temporary special measures;

(b) Expand the use of temporary special measures, such as outreach or support programmes, allocation and/or reallocation of resources, targeted recruitment, hiring and promotion, numerical goals connected with time frames, and quota systems, to accelerate the realization of substantive equality between women and men in all