Malaysia
The SIGI 2023 profile for Malaysia provides a comprehensive overview of the state of gender equality in the country, as measured by the OECD’s Social Institutions and Gender Index (SIGI).1 The fifth edition of the SIGI, released in 2023, assesses 140 countries based on the level of gender-based discrimination in their social institutions. These discriminatory social institutions encompass both formal and informal laws, as well as social norms and practices that restrict women’s and girls’ access to rights, justice, empowerment opportunities and resources, thereby undermining their agency and authority.
Note: Scores range from 0 to 100, with 0 indicating no discrimination and 100 indicating absolute discrimination. The Southeast Asia region covers Brunei Darussalam, Cambodia, Indonesia, Lao PDR, Malaysia, Myanmar, the Philippines, Singapore, Thailand, Timor-Leste and Viet Nam.
Source: (OECD, 2023[1]), “Social Institutions and Gender Index (Edition 2023)”, OECD International Development Statistics (database), https://doi.org/10.1787/33beb96e-en.
In 2023, Malaysia obtained a SIGI score of 61, denoting very high levels of discrimination, compared to an average score of 39 in Southeast Asia, denoting medium levels of discrimination and a world average score of 29.2 The country obtained a score of 86 in the “Discrimination in the family” dimension, followed by “Restricted civil liberties” (61), “Restricted physical integrity” (47) and “Restricted access to productive and financial resources” (44).
The legal system in Malaysia is a dual system based on common law inherited from the British rule and Islamic religious law based on Sharia law (also known as Syariah in Malaysia) alongside customary law. Article 3(1) of the Federal Constitution of Malaysia of 1957 (Malaysia, 1957[2]), which provides the framework for Malaysia’s modern legal system, establishes Islam as the religion of the country, recognising the right of other religion to be practiced. Malaysia’s judicial system is characterised by the co-existence of a dual court system with, on the one hand, a federal secular legal system in the form of the civil courts and, on the other hand, religious courts (Syariah courts) for Muslims, which have jurisdictions for all Islamic personal and family matters. Pursuant to Article 121(1A) of the Constitution, civil courts have no jurisdiction in matters that fall within the jurisdiction of Syariah courts (Tew, 2011[3]). Moreover, recognising the existence of Malay customs and other native laws, Article 76(2) of the Constitution prohibits Malaysia’s parliament from enacting any law on the customs of the Malay or on the customs or native laws of the states of Sabah and Sarawak. In this context, customary laws (or adat)3 have the force of law in various matters of personal status (for example land-holding and inheritance) (LawTeacher, 2013[4]).
Article 8(2) of the Constitution recognises and prohibits multiple and intersectional discrimination – which constitutes an essential element to enhance gender equality (Malaysia, 1957[2]). Malaysia ratified the Convention on the Elimination of All Forms of Discrimination Against Women (CEDAW) in 1995 but maintains reservations to Articles 9(2), 16(1)(a), 16(1)(c), 16(1)(f) and 16(1)(g), and does not consider itself bound by the provisions of these articles (United Nations, 1979[5]; United Nations, 2023[6]). Malaysia considers that its accession is subject to the understanding that the provisions of the Convention do not conflict with the provisions of the Islamic Sharia law and its Federal Constitution. Malaysia also stipulates that it interprets Article 11 of the Convention as a reference to the prohibition of discrimination on the basis of equality between men and women only.
Gender-disaggregated, gender-relevant and intersectional data and indicators are essential to better identify policy areas that have strong linkages with gender. In Malaysia, there are no applicable legal provisions regulating the production and dissemination of gender statistics.
Positive highlights
Malaysia’s legal framework grants women the same rights as men in terms of access to non-land assets and financial resources. Moreover, women’s financial inclusion is very high and they account for 49% of bank account holders. Reforms passed in 2022 have eliminated discriminatory provisions prohibiting the work of women in certain sectors or during the night. The law also guarantees men and women equal rights to access justice.
Significant challenges
Discriminatory social institutions undermine women’s rights and opportunities in many spheres of their lives. In the family sphere, Malaysia’s legal framework – notably the Islamic Family Law Act – restricts women’s rights to divorce, inherit or being the guardian of their child, and sets the minimum legal age of marriage of girls below 18 years. The law also limits women’s control over their own bodies. Although the Penal Code protects women against most forms of violence, abortion remains criminalised and is only permitted to save the pregnant woman’s life or if her physical or mental health is in danger. Social norms weaken women’s agency in this dimension with 55% of women themselves who consider that domestic violence is acceptable in certain circumstances, compared to an average of 33% in Southeast Asia. Women’s economic empowerment is limited by discriminatory provisions in the Employment Act and by attitudes undermining women’s role – 44% of the population believes that men make better business leaders than women. As a result, women only account for 25% of managers and only 33% of Malaysian companies being headed by women. These norms on women’s ability to hold decision-making positions are also present in the political sphere with 58% of the population who thinks that men make better political leader than women. Combined with the absence of political quotas at the national and local levels, it translates into women accounting for only 14% of the members of parliament. Finally, the law establishes different rights and requirements for men and women to confer their Malaysian nationality to their spouse or children.
References
[4] LawTeacher (2013), Founder, History of Native Customary Law in Sabah and Sarawak, https://www.lawteacher.net/free-law-essays/equity-law/founder-history-of-native-customary-law-essays.php (accessed on 1 October 2023).
[2] Malaysia (1957), Federal Constitution of Malaysia.
[1] OECD (2023), “Social Institutions and Gender Index (Edition 2023)”, OECD International Development Statistics (database), https://doi.org/10.1787/33beb96e-en (accessed on 10 January 2024).
[7] OECD Development Centre/OECD (2023), “Gender, Institutions and Development (Edition 2023)”, OECD International Development Statistics (database), https://doi.org/10.1787/7b0af638-en (accessed on 11 January 2024).
[3] Tew, Y. (2011), The Malaysian Legal System: A Tale of Two Courts, Georgetown Law Faculty Publications and Other Works, 1922, https://scholarship.law.georgetown.edu/facpub/1922.
[6] United Nations (2023), Status of Treaties: Chapter IV - 8. Convention on the Elimination of All Forms of Discrimination against Women, https://treaties.un.org/pages/ViewDetails.aspx?src=IND&mtdsg_no=IV-8&chapter=4.
[5] United Nations (1979), Convention on the Elimination of All Forms of Discrimination Against Women, https://www.ohchr.org/en/instruments-mechanisms/instruments/convention-elimination-all-forms-discrimination-against-women.
Notes
← 1. The full SIGI Country Profile for Malaysia is available at: OECD Development Centre (2023), “Malaysia SIGI Country Profile”, SIGI 2023 Country Profiles, OECD, https://oe.cd/sigi-dashboard.
← 2. SIGI scores range from 0 to 100, with 0 indicating no discrimination and 100 indicating absolute discrimination. Levels of discrimination in the SIGI and its dimensions are assessed based on scores as follow: very low [0-20]; low [20-30]; medium [30-40]; high [40-50]; and very high [50-100].
← 3. Customary laws in Malaysia (also known as adat in Malay) comprise four main categories: Adat Pepatih, Adat Temenggong, Iban customary laws and Dusun customary laws. Adat Pepatih is limited to the state of Negeri Sembilan in West Malaysia. Adat Temenggong is based on Islamic principles and is applicable to all states in West Malaysia, except Negeri Sembilan. Iban and Dusun customary laws are only applicable to the respective states of Sarawak and Sabah in East Malaysia.