In 1948, one of humankind’s most despicable ideas, apartheid, was
made into law in South Africa where racial discrimination was
institutionalised. Race laws touched every aspect of social life,
including a prohibition of marriage between non-whites and whites, and the
sanctioning of “white-only” jobs. Although there were 19 million
blacks and only 4.5 million whites in South Africa, the majority
population were forced to be second-class citizens in their homeland,
banished to reserves and needing passports to travel outside them, even
within their own country. It was only in 1990 that apartheid began to
crumble and South Africans of all colours were finally free to live as
equals in every way.
With the end of that racist system, people may be forgiven for thinking
that apartheid does not exist anymore. While few countries practise any
formal systems of discrimination, nevertheless you can find many forms of
discrimination everywhere. In many cases, it is women who are
discriminated against. In our country, there is an insidious growing form
of apartheid among Malaysian women, that between Muslim and non-Muslim
We are unique in that we actively legally discriminate against women
who are arguably the majority in this country, Muslim women. Non-Muslim
Malaysian women have benefited from more progressive laws over the years
while the opposite has happened for Muslim women.
For instance, since the Law Reform (Marriage and Divorce) Act 1976,
polygamy among non-Muslims was banned. Previously men could have as many
wives as they wanted under customary laws. Men’s ability to unilaterally
pronounce divorce on their wives was abolished and, in its place, divorce
happens by mutual consent or upon petition by either spouse in an equal
process where the grounds are intolerable adultery, unreasonable behaviour,
desertion of not less than two years, and living separately for not less
than two years. Compare that to the lot of Muslim women abandoned but not
divorced by their husbands.
Other progressive reforms in the civil family law in the late 1990s
were amendments to the Guardianship Act and the Distribution Act. The
Guardianship of Infants Act 1961 was amended to provide for equal
guardianship for both father and mother, rather than the previous
provision where only the father was the primary guardian of the children.
In contrast, the Islamic Family Law still provides for the father as the
sole primary guardian of his children although the mother is now allowed
to sign certain forms for her children under an administrative directive.
The Distribution Act 1958 was also amended to provide for equal
inheritance for widows and widowers, and also granted children the right
to inherit from their mothers as well as from their fathers. Under the
newly proposed amendments to the Islamic Family Law, the use of
gender-neutral language on the issue of matrimonial property is
discriminatory on Muslim women when other provisions in the IFL are not
gender-neutral. Muslim men may still contract polygamous marriages, may
unilaterally divorce their wives for the most trivial of reasons and are
entitled to double shares of inheritance.
These differences between the lot of Muslim women and non-Muslim women
beg the question: do we have two categories of citizenship in Malaysia,
whereby most female citizens have less rights than others? As non-Muslim
women catch up with women in the rest of the world, Muslim women here are
only going backwards. We should also note that only in Malaysia are Muslim
women regressing; in every other Muslim country in the world, women have
been gaining rights, not losing them.