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Loosely defined, patriarchy refers to a social system in which males predominantly hold roles of leadership and authority at the expense of a woman’s subordination. The term descends from how men, as the head of their family, held an inherent autocratic rule. While such a society may have been advantageous historically, it has no place in the contemporary 21st century where men and women alike are provided equal opportunities to thrive.

Yet within Malaysia’s law and culture, there exists a myriad of loopholes that target the vulnerability of women. Although not explicitly stated, it is easy to note the underlying theme of male domination (especially within laws of the Syariah court) that puts the safety of women at risk. What are these injustices, and is there anything we can do about it?

1.       Child marriage is legal in Malaysia. Section 8 of Islamic Family Law (Federal Territories) Act 1984 permits the legal marriage of Muslim females beginning at age 16 with parental consent. Marriage to children younger than that require judicial approval; but by the concerning number of 9061 marriage cases from 2010 to 2015, this process is assumedly not very complicated. Even more worryingly, there is no established step-by-step ruling in Syariah law for the proceedings of child marriages. It is completely up to a judge’s discretion (i.e. his or her individual understanding of religion) to determine if a minor is ready for marriage. This does not bode well for young girls, since many Islamic authorities hold the outdated notion of puberty being the mark of transition from childhood to womanhood – and subsequently suitability for marriage.

The concept of child marriage in the past admittedly was to provide a better quality of life for young females in lower class families – this justification serves no standing in the 21st century, where child marriage is undoubtedly an abomination to a child’s human rights. However, Malaysia is still unable to completely ban child marriage without the agreements from the respective seven states (Sarawak, Pahang, Terengganu, Perlis, Negeri Sembilan, Kedah and Kelantan), and so the atrocity continues.  

2.       Our legislation does not recognise marital rape as a crime. Section 375 of the Penal Code explicitly exempts husbands from committing rape, where rape is defined as “sexual intercourse with a woman … when the man knows that he is not her husband”. Marital rape is commonly associated with other acts of physical violence – in 2017, a third of domestic violence survivors reported sexual abuse to the Women’s Aid Organisation (WAO). By validating marriage as a license to rape, Section 375 is essentially empowering domestic abusers and unduely affirming that sexual assault does not exist within a marriage.

While somewhat still offering protection, the clause in Section 375A to counter marital rape (a husband causing “hurt or fear of death/hurt to his wife” may face imprisonment) is still grossly insufficient. Rape can still occur as a result of intoxication, or even other forms of coercion like threatening the wellbeing of children or in-laws in the family.

Muslim women especially may be unwilling to seek help due to the ruling of the Syariah court that supersedes civil jurisdiction in Islamic family law. One reason for this is talaq, the most common type of divorce within the Muslim community in Malaysia. Roughly translated to “I divorce you”, talaq is a declaration that only requires the verbal utterance of the word for legitimate divorce. A man only has to say “talaq, talaq, talaq” (known as triple talaq) for the divorce to be permanent. With modern technology, this mode of divorce could be done over a phone call or even through a simple text. 

As this provision is only available to husbands, it creates an imbalance of power play in abusive marriages. Wives may be subjected to endure domestic violence as unilateral divorce may bring severe repercussions to personal finances and their children’s welfare. The inherently patriarchal nature of the Syariah court also means that there is unequal gender representation when it comes to family affairs – Malaysia only admitted its first two female judges into Syariah High Court in 2016, and its first two female judges into the lower courts in 2010.

3.       Abortion is illegal unless a medical practitioner believes the pregnancy poses a risk to the mother’s health. Abortion in Malaysia used to be entirely banned, no matter the reason and it was not until 1971 that Section 312 of the Penal Code was amended to allow abortion to save the mother’s life. The law then liberalised a bit further in 1989 to take into account the mother’s mental and physical health as potential grounds. While this is indeed a progressive milestone for Malaysia as one of the few Muslim-majority countries that legalises abortion, women still face a number of hurdles when it comes to terminating an unwanted pregnancy.

Currently, abortion on the grounds of rape or incest are still illegal in Malaysia. The burden of a child can unfortunately incentivise women to stay in abusive relationships. This is especially true in the context of marriage – mothers who are financially dependent on their husbands as the primary breadwinner of the family may be more inclined to grit their teeth and tolerate abuse for the sake of their children’s welfare. Like it or not, it cannot be denied that children pose a layer of complication when it comes to familial hierarchy, and it is unfortunate that some men use this as a means to leverage power over women.

Additionally, the stigma surrounding children born out of wedlock pressures females into marrying the baby’s father (many rapists marry their victims to escape prosecution). The lack of safe, legal abortion access only compounds the problem.

Concluding words

Women activist groups in Malaysia like the Women’s Aid Organization, Sisters in Islam and Women’s Centre for Change have long been pushing for legal reform in revising the relevant sections and acts of the Penal Code. Their cries have seemingly gone unheard since these public policies remain unchanged. This battle cannot be won overnight, but a good step forward would be for those in power to acknowledge that certain laws enable a patriarchal community that may endanger women.

Women will continue to suffer from the cracks in our legislation until the government takes action; it is only then that we can begin to combat this issue deep-rooted into our society. 

#happyinternationalwomensday