Unconstitutional to bar women MBs over menstrual cycle, lawyers say

Malay Mail
by MELISSA CHI

KUALA LUMPUR, July 16 ― It is unconstitutional to bar a woman from becoming mentri besar just because she menstruates, several lawyers said after Umno legal adviser claimed Datuk Seri Dr Wan Azizah Wan Ismail’s monthly cycle would hinder her performance as Selangor MB.

 

Human rights lawyer Honey Tan labelled Datuk Mohd Hafarizam Harun’s remark “sexist” and “patriarchal” and reminded the Umno man that Article 8(2) of the Federal Constitution prohibits gender discrimination.

The Selangor Constitution, she added, is consonant with the country’s supreme law on the matter as there is no provision barring a woman from heading the administration of the state.

“As usual, it is the (mis)interpretation of Islam that contributes to women's de facto discrimination, not just in the political arena but also at work and in the home.   

“Finally, Hafarizam's argument is moot because Wan Azizah has reached menopause. So what is his argument now?” she told The Malay Mail Online via e-mail.

Dr Wan Azizah is 61 years old.

Tan also pointed out that many Muslim women in the world have taken on key political posts, citing the prime ministers of Pakistan and Bangladesh, Benazir Bhutto and Sheikh Hasina, as examples.

“So obviously Islam is not an issue,” she remarked.

The 1959 Selangor Constitution only requires the state mentri besar to be a Malay and Muslim, but does not lay down conditions on the gender.

Dr Wan Azizah, who is both a Malay and a Muslim, is also the state assemblyman for the Kajang constituency in Selangor, fulfilling the most important requirement.

In a New Straits Times report yesterday, Hafarizam had reportedly said that Dr Wan Azizah, who is PKR president and the wife of Opposition Leader Datuk Seri Anwar Ibrahim, could not be made the next Selangor mentri besar because her menstrual cycle prevents her from attending religious events during that time of the month.

The Umno lawyer, who was commenting on speculation that Dr Wan Azizah may be poised to replace Tan Sri Khalid Ibrahim for the post, said the mentri besar has always been male for this reason, despite there being no specific clause excluding a woman from holding the post.

Bar Council constitutional law committee chairman Firdaus Husni also disagreed with Hafarizam, noting that there is no specific provision under the law ― in particular the state constitution ― to stop a woman from holding the post of mentri besar.

“The barring of a citizen from holding the post of mentri besar on the ground only of gender is not expressly authorised by the Federal Constitution.

“Such move would therefore be unconstitutional, not to mention discriminatory. Yes, by extension his argument would mean that we cannot have a female PM,” she said.

Arguing on the same point, civil liberties lawyer Syahredzan Johan, who called Umno’s Mohd Hafarizam’s remarks “baseless and unwarranted”, said even if a mentri besar is unable to accompany the Sultan during religious functions for whatever reason, the relevant state executive councillor could stand in his or her place.

He also said that placing restrictions based on biological differences legitimises in-built prejudices against women and has consequence of perpetuating the myth that women should not occupy positions of power.

Although he noted that it was far more likely to see a non-Malay prime minister than a female prime minister in Malaysia, it does not justify comments like Hafarizam’s.

Instead, he said, the country should be encouraging more participation of women in politics and positions of power.

“Admittedly, I do think a lot of people in our present political leadership, at least in private, they do share these sentiments expressed by Datuk Hafarizam, perhaps not in such a crude manner because of menses and all that but the very fact is that they do share this perception or belief that women should not occupy the highest position of power.

“They are given token positions such as to take care of women’s affairs, but nowhere near the so-called important portfolios.

“Unfortunately that has to change and that change should have already started. Unfortunately we still get these kind of sentiments expressed... and being shared among politicians,” he said.

Weighing in, Bar Council president Christopher Leong said a woman’s menstruation cycle cannot be seen as a disability or a factor for disqualification.

“In any event, in the scenario alluded to in the news report, the menstruation cycle would not be a subsisting issue for women above certain ages,” he said.

He pointed out that Malaysia has also ratified the UN Convention for the Elimination of All Forms of Discrimination against Women (“CEDAW”).

“Therefore, the issue of women being barred, purely by virtue of their circumstance as women, from participating fully in society and in assuming any public office does not arise.

In Islam, a menstruating woman is considered “unclean”, and is prohibited from praying and reading Quran, among others.

Most Islamic scholars also bar women from entering a mosque while menstruating.