The Status of Women in Law: A Comparison of Four Asian Countries 9789814377386

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The Institute of Southeast Asian Studies

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TilE STATUS OF WOMEN IN LAW A Comparison of Four Asian Countries

by

Betty Jamie Chung Ng Shui Meng

Occasional Paper No. 49 Institute of Southeast Asian Studies Price:

S$6.00

Publications Review Committee

Professor Kernial S . Sandhu (Chairman) Dr . Corazon M. Siddayao (Co- ordinator) Dr. Huynh Kim Khanh Mrs . P. Lim Pui Huen Mr . M. Rajaretnarn Mrs. Christine Tan

The Status of Women in Law: A Comparison of Four Asian Countries is the forty-ninth in the Occasional Papers series published by the Institute of Southeast Asian Studies.

Occasional Papers are professional papers issued on a variety of topics of regional interest.

periodi~ally

The responsibility for facts and opinions expressed in the work that follows rests exclusively with Dr. Betty Jamie Chung and Ms. Ng Shui Meng and their interpretations do not necessarily reflect the views or the policy of the Institute or its supporters.

•

•

•

The Institute also publishes books and papers fr om time to time in the following series: BOOKS /MONOGRAPHS: specialized studies on topics relating to Southeast Asia. SOUTHEAST ASIAN AFFAIRS: an annual review of significant political, economic and social developments in the region, with emphasis on the ASEAN countries. Contents include analyses in depth of topics of regional concern and of specific issues on a country-bycountry basis . FIELD REPORTS: studies embodying the results of, and based exclusively on, the Institute's research programme; RESEARCH NOTES AND DISCUSSIONS: contributions which represent the tentative results of ongoing research, and of discussions, printed for the purpose of stimulating further thought on specific subjects. TRENDS IN SOUTHEAST ASIA: papers and proceedings of Trends seminars held on individual Southeast Asian countries; INTERNATIONAL CONFERENCES: publications based on proceedings of I nternational Conferences sponsored by the Institute itself or in conjunction with other organizati ons ; CURRENT ISSUES SEMINARS: publications growing out of the Institute 's Current Issues series of seminars, the objective of which is to bring together knowledgeable and interested people to discuss topics of current concern and importance to the region .

SOUTHEAST ASIAN PERSPECTIVES: aimed at wider circulation of Southeast Asian thinking, these publications are original contributions in English of Southeast Asians or translations of their significant papers and monographs appearing in one of the local or national languages of the region; ORAL HISTORY PROGRAMME: publications based on the oral memoirs of persons who have made notable contribution tot or have first-hand information to impart on, certain aspects of the development of Singapore and Malaysia; LIBRARY BULLETINS: papers on Southeast Asian librarianship and bibliography. 15

October 1977

Director Institute of Southeast Asian Studies

PREFACE This paper examines and compares the status of women in law in four Asian countries, namely, Malaysia, the Philippines, Republic of China and Thailand. These four countries are chosen for the differences in their culture backgrounds: Confucianism in China, Islam in Malaysia, Catholicism and the Spanish influence in the Philippines and Buddhism in Thailand . The focus of the discussion is on marriage and family laws, inheritance laws and property laws. An attempt is also made to relate the legal status of women in these four countries to the social, economi c and political status of women in these respective countries. We wish to express our sincere appreciation to Ms . Welcome Fawcett for her invaluable comments on the

manuscript. For typing numerous drafts of the manu ~ cript, we are indebted to Celina Heng and Yuen Mei-Lin . We also wish to acknowledge the help of the Director, Kernial Singh Sandhu, and the staff of the Institute of Southeast Asian Studies. Finally, we wish to thank Christine Tan, Editor of the Institute of Southeast Asian Studies, for her editorial contribution to the manuscript.

CONTENTS

PREFACE

i

I:

INTRODUCTION

1

II:

HISTORICAL PERSPECTIVE

3

III: THE LAWS Marriage and Divorce Parental Authority Inheritance Rights Property Rights Legal Rights of Married Women Civil Rights

8 8 29 33 37

40 43

IV:

LAW AND REALITY

49

V:

CONCLUSION

54

56

TABLES Percent Distribution of Enrolment of Female Students at Different Levels o f Education in the Four Countries

56

Percent Distribution of Enrolment of Female Students in Various Fields of Study in the Four Countries

56

3:

Female Participatio n in the Labour Fo rce in the Fo ur Co untries

57

4:

Percent Distribution of Female Workers in the Various Industries in the Four Countries

57

1:

2:

5:

6:

REFERENCES

Percent Distribution of Female Workers in the Various Occupations in the Four Countries

58

Percentage of Female Workers in Each of the Occupations in the Four Countries

59

61

I:

INTRODUCTI ON

It has often been pointed out that in many countries today women have attained equality with men before the law and that the reason women have fa i le d to fully u ti lize the economic, social and political opportuni ties e xtended to them in these countries is the prevailin g tradition al attitudes t oward sex r oles and the inferiorit y of women. While the influence of the tradition al attitudes on the status o f women cannot be den i ed, the premi se can be challenged that women and men are equal before the l aw. Many o f these countries have re cogn ized the princip le of equal ity between men and women in their Constitut ion o r basic laws but this 1s not necessari ly true in fact. While the impo rtance of the recogn i ti on o f equality in the Constitut ion to the status of women is n ot to be undermine d , i t is the laws pertainin g to marriage, di vorce, parental authority , inheritanc e and property righ ts and civi l laws which are of paramount and direct importanc e to the statu s o f women. Therefo re, in the understan ding of the status o f women in any given country, it is as important to examine the laws of the individua l country as t o study I n t h1s paper women's role in s ociety and in the family. legal status the ompare c and examine an attempt is made to the Malaysia, China, of of women in the Republic Phi lippines and Thailand, with a special focus o n laws In view of differenc es which discrimi nate against women. i n the culture backgroun d o f these four countries Confucian ism in China, Islam in Malaysia, Catholicis m and the Spanish influence in the Philippin es and Buddhism in Thailand - it is likely that laws in these countries also differ . Th i s paper also tries to relate the legal status of women in these countries to other aspects of their status , in particula r, the social, economic and political aspects. In order to simplify compari son and to bring o ut some of t h e more interestin g cont ra s~in the laws between countries , only the laws which a ppl y to the major ethnic group in each country are given greater emphasis. Thus , for Malaysia , t h e Islamic laws as applicabl e to all Mus lims are discussed in greater detail. Only cursory referenc es would be made to the civil and customary laws applicabl e t o the other ethnic groups wherever relevant. This is justifiab le because Malays (who are also Muslims ) for.m the majority of the populatio n . For the Philippin es, China (Taiwan) and Thailand , the greater homogenei ty of the

2

population in terms of religion and ethnicity has simplified the situation. For each of these three countries, the Civil Code will be examined, that is, in the Philippines , the Civil Code as amended after the proc l amation of martial law in September 1972; in Taiwan, the Civil Code of 1931; and in Thailand the Civil and Commercial Code of 1935 .

3

II:

HISTORICAL PERSPECTIVE

Both Malaysian and Filipino women would be eager to point out that in the past women in their societies enjoyed a position of greater equality. Fi l ipino women , for example , frequently recall with pride and nostalgia those times when a member of their own sex was able to assume headship over the b ar an gays or become a priestess in the temples . l Malay women, especially those from Negri Sembilan and parts of Malacca , often draw attention to their matriarchal social organization in the past as indication of their relative high position in days gone by. The relegation of the status of women in these two societies seemed to have resulted from the adaptation and absorption of the different streams of cultural and religious influences which swept through Southeast Asia through the centuries . In Malaysia, the spread of Islam, and in the Philippines, the conquest by the Spaniards and the subsequent Christianization of the country were among events which had the greatest impact on the reorganization of the social and religious systems of the two countries . Subsequent British colonization of Malaya and American tutelage of the Philippines have introduced further changes into the political , social and legal system of the two countries . Today , Malaysia is an Islamic country where Islam is the national religion. The legal system and the civil laws are patterned after English common l aw, but for Muslims, Islamic laws are applied. In the Philippines the laws bear an American stamp and a strong Christian bias . Both Is l am an.d Christianity are male- centred and male dominated religions. Islam , especially , does not bestow a high position on women . 2 Even in the eyes of Go~woman belongs to the inferi or se x ,according to Muslim teachings.3 However, in Malaysia, i t is generally held that the status of Musl i m women is already somewhat improved by the moderating

1 2

See Teres i ta B. Infante , The Women in EarLy PhiLippines and Among t he CuLturaL Minoritie s (Manila: Uni versity of Santo Tomas, 1969) . See "The Status of Women in Islam , " in Reuben Levy, The SoaiaL Cambridge University Press , 1969) , pp . 91-134 .

St ruct ure of IsLam (Cambridge: 3

I bid . , p . 98.

4

influence of local customs on Islam. Islam (mainly of the Shafii sect) was only brought to the island world of Southeast Asia by Arab traders in the fourteenth century . In the process of its being spread, Islam itself underwent some modification . The pre-Islam local customs or adat, especially where i t concerned family matters and the rules of inheritance, were incorporated into Muslim teachings. The Malays in Malaysia were supposed to have migrated to the Malay Peninsula from the Minangkabau highlands and the Palembang districts of Sumatra. As mentioned earlier, the pattern among some groups of social organization was strongly matrilineal in the past and some of the ancient customs have been retained to the present and have helped protect women ' s interest much more than would otherwise have been under the influence of Islam. But whatever dominance the woman might have enjoyed in the past under tribal organi zation, her position has been considerably wh i ttled down since the ·c oming of Islam which has socially and legally endorsed the superior position of the male. Islam would have spread throughout the Philippines had it not been arrested by the Spanish conquest of the islands in the sixteenth century. Today, Islamic influences in the Philippines are limited to the southern part of the country where it is especially strong in the islands of Sulu and Mindanao . The Spanish came not only with their sword but also with their Bible . In their zeal to convert t h e indigenous population (which they called indio s, the early friars penetrated deeply into the country's scattered baran gays , learnt the native languages and inculcated the indios with their ecclesiastical concept of morality and the Spanish pattern of political and social organization. So successful was the Christianization effort that today 80% of the total population in the Philippines profess the Catholic faith. Under the Spanish tutelage the Filipino woman was supposed to have transformed from "a forthright, hedonistic little pagan" to become "the shy, diffident, puritanical tearstained little woman of the late nineteenth century"4 which has been so well immortalized in literature . S

4

Carmen Guerrero Nakpil, "The Filipino Woman," in her Woman Enough Vibal Publishing House, 1973), pp . 8-9.

and Other Essays ' (Quezon City:

5 See Car men Guerrero Nakpil, "Maria Cl ara," in her Woman Enough and Other Essays (Quezon City: Vibal Pri nting House , 1973), pp. 29-35.

5

Fortunately, rural women and women o f the labouring classes were able to escape this stamp of the rather insipid and prudish stereotype of the Filipino female of the upper class . Economic pressures and the necessity to labour constantly under harsh conditions taught them to retain some of the spirit of independence and aggressiveness of the pre - Spaniard days. They have been Christianized but not c ompletely hispanized. The legal status of Filipino women during the Spanish colonial period was very low indeed though perhaps not as low as it would have been had Islam been spread throughout the Philippines instead. They could neither enter into contracts independently nor even leave the parental home without c o nsent . 6 The substitution o f American rule for Spanish rule witnessed a slight liberalizat ion of the social and political system but it did little to improve the legal status of women directly. Perhaps the greatest favour the Americans did the Filipino women was to improve and extend the education system to all, regardless of sex. This was an important step towards the emancipation of women in the Philippines. But education in itself is insufficient to eradicate completely the social prejudice against the female . The Filipino woman today is probably better edu c ated than many of her Asian sisters and she has broken into the so-called predominantly male spheres of activity much earlier than her Asian counterparts , but she is none the less still regarded as the fairer but weaker sex. In contras~, both Chinese and Thai women had had a long history of subordination and discrimination until the beginning of this century when they began to gain greater equality with men . 7 Both traditional Thai land and China 6

Nakp il , ibid . , p . 10.

7

The bas i ~ references of this discussion on the Republic of China and Thailand are : Hsueh Li-Ming, "A Study of Women ' s Participation 1n Politics in Taiwan," M.A. thes is , National Cheng-Chin University (Taiwan) , 1973; Albert R.O' Hara, "The Position of Women in Modern China ," Journal of China Soaiety, Inauguration Issue, 19 71: 61-68; Aline K. Wong, "Women in China: Past and Present ," in Carolyn J. Malthiasson ( ed , ) , Many Sisters : Women i n Cross -Cultu~ Z Perspectives (raiwan: Free Press, 1974); Bisalputra Duangduen , "The Stat us, Roles and Achi evements of Women in Thailand," paper presented at the ASAIHL Seminar-Workshop on The Role of Women in Development : Implications

6

were male-centred societies o Women were confined to the home and their primary roles were that of wife and mother . Their education was restricted to domestic arts , embroidery and home-keeping in preparation for their roles of housewife and mother . Before they were married , they played the role of a subordinate daughter and after they were married, the role of a submissive wife. The head of the family was the husband and the wife was expected to rear children , particularly, sons , in the context of Chinese families , to remain faithful to the husband and devoted to the care of the home. Also , polygamy or concubinage was permissible in both countries. However , toward the end of the last and the beginning of this century , social and political changes which have farreaching consequences for the status of women took place in these two countries. In China , as a result of contact with the west in late nineteenth century through trade and travel as well as efforts of missionaries , ideas of the equality of men and women began to be accepted and spread , Furthermore , particularly, among Chinese intellectuals . the introduction of modern education and the involvement of women 1n revolutionary movements at the beginning of the century gave greater impetus and momentum to the Chinese women 's movement to achieve equality with men. By 1931, the principle of equality between men and women was incorporated in the Constitution and the Civil Code promulgated. Women began to participate i n economic and social activities as contrasted to their form6r seclusion . Though it was still a long way to equality with men , their status was definitely improved . Similarly in Thailand, the two major influences on ·the status of women were the introduction of modern education for women and contact with the western world . At the end of the last century, schools for girls were established but these schools were merely taking over from the home the responsibility of educating girls in reading and writing , Thai culture and domestic arts, grooming

for Higher Education in Sou~heast Asia , 16-22 December 1975 , Manila ; Sanya Dhamasakti and Wimolsiri Jamnarnwej, Status of Women in ThaiLand (Bangkok: Women Lawyers Association of Thailand, 1972); and Pramnan Dick1.nson , "My Life History in Thailand," in Barbara E. Ward (ed.) , Women i n t he New Asia (Paris: Unesco, 1963) , pp . 452-461.

7

them to become ideal wives. It was only in the second and third decades of this century that rapid progress in education was achieved. An increasing number of girls attended high schools and universities. They also began to participate in the labour force. Furthermore, with the change of the political r~gime from absolute monarchy to constitutional monarchy in 1932, when women gained the right to vote and the promulgation of the present Civil and Commercial Code in 1935, greater equality was accorded to women ' in law. But again as in the case of their sisters in China, Thai women did not achieve complete equality with men then and have not achieved it until now. However, this initial breakthrough is a crucial development in the history of the struggle of Thai women for equality with men.

8

III:

THE LAWS

Marriage and Divorce The laws regarding marriage and divorce are of paramount importance in trying to understand the woman's position in a social system, in particula r, her position in the family and her role as wife and mother. Rightly speaking if the Constitution does not discriminate against the sexes, the same set of laws regarding marriage or divorce extendable to the males should also apply to the females. But this is not always the case as will be illustrated in the following discussion. Marriage

Polygamy and Monogamy. Anyone marrying under the Civil Marriage OrdinanceS of Malaysia of 1952 is prohibited from marrying again whi l e that marriage is still in force. But the Ordinance specifically denies that it can be used where either party is Muslim. Furthermore, compliance with the Ordinance was not compulsory even for non-Muslims, so that Chinese or Hindus could still marry according to their customs and not be subject to its prohibitions of polygamy. Under the Law Reform (Marriage and Divorce) Act , 19 75, compliance is compulsory (except for t-luslims) • 9 Nevertheless, polygamous unions entered into prior to the coming into effect of the new Act will be valid, so that even for non-Muslims polygamy is not yet a thing of the past. Chinese customary law condoned polygamy, and under Islamic law polygamy is specifically provided for and regulated. A Muslim man may marry up to a maximum of four wives, as long as he has the economic means to support four households without discriminating against any one of them. Legislative limitations against the abuse of polygamy are only found in the states of Selangor and Negri Sembilan where special permission has to be obtained from the Chief Kathi or the ruler before a polygamous union can be entered into. Because of the high economic costs of providing for

8

Ahmad Ibrahim, "The Status of Women in Family Law in Malaysia_ and Brunei," in Malay LOJJJ Review , Vol. 7 (l), 1965: 56,

9

Law Reform (Marriage and Divorce) Act, 1975, Article 5.

9

multiple households, and the strong sanction against i t s practice under local adat ,lO polygamy is not a very common practice, especially among rural Malays. However , its practice is not completely absent . Polygamy is much more prevalent among urban Malays of means and the Malay royalty. The more progressive Muslim women and men are generally against its practice . First, the practice of polygamy smacks of feudalism and is incongruent with modern development. Secondly, the more progressive Malays also realize the injustice that a woman is subjected to under its practice. Since its practice is institutionalized in the religion, it is much more difficult to abolish through the legal process, particularly when such a change would entail corresponding changes in the doctrine of the religion . Thus Muslim women groups in Malaysia can only lobby for . stricter legislative restriction against the abuse of its practice . The reformists are of the opinion that the present practice of permitting polygamous unions f irst on the basis of the economic capability of a man to maintain more than one household is too easily open to abuse . They insist that a polygamous union should not be legal unless the wife has given her written consent to the union and that she is proven to be either sterile, 11 bedridden or incapable of performing her wifely duties. In any society in which polygamy or concubinage i s legalized in the marriage institution, a woman's position is automatically relegated below that of the man. Her subordinate position becomes both socially and legally recognized . To abolish concubinage and polygamy is therefore one of the first steps to upgrade a woman's status before the law. This is not to suggest that the law ceases to protect the rights of those women whose marital status is at present that of secondary wives, but the law can prevent the continuation of such a practice by legislating that all marriages be monogamous in the future. In fact, even before the new legislation for non-Muslims

10

Ahmad Ibrahim, I s Lami c Law i n MaLaya (Singapore: Malays i an So ciol ogical Research Institute Ltd . , 1965), pp . 187-188 , See also " Cus t omar y Law and the Formal Legal Institutions , " in David C. Buxbaum, ed ., Family Law and Customary Law in Asia: A Con t emporary LegaL Per spectiv e (The Hague : Martinus Ni jhoff, 1968), pp . 118-119.

11

M. A. Razman, "Malays i an Women Win Reforms , "

1975, PP • 14- 15.

Asia Magazi ne, 13 July

10

was introduced in late 1975r many young non-Muslims Malaysians married according to the Civil Marriage Ordinance and registered the marriage accordingly. Hence monogamy was already an accepted practice before the law was introduced. 12 Unlike Malaysia , the Philippines , a largely Catholic country, Taiwanl3 and Thailandl~ do not condone polygamous unions, except in the Muslim areas in the South of the Philippines and t.he four Southernmost provinces in Thailand where the rules and regulations regarding marriage conform to the Muslim laws. 15 Age at Marriage. In the Philippines the minimum age for marriage is stipulated as sixteen for males and fourteen for females. But for non-Muslims in Malaysia according to the Law Reform (Marriage and Divo rce ) Act 1975, the minimum age of marriage is eighteen for both males and femalesl6 except that for females over sixteen, a marriage can still be solemnized if it is authorized by a licence granted by the Chief Minister. l7 However, for the Muslims in Malaysia , there is no minimum age for marriage. Adulthood for the purpose of marriage in Islam is attained at puberty or at the latest by the age of fifteen if puberty cannot be established. Moreover, even a minor (a person who has n ot reached puberty in this instance) can be given away in marriage by her father or paternal grandfather although consummation for the marriage can only take place after puberty is reached . The tendency is therefore for Malay girls to marry young and to become saddled with the responsibility of raising a family and running a household at a very tender age. In TaiwanH~ the minimum age for 12

New Civil Code of the Philippines, Act 349 .

13

Civil Code of the Republic of China, Act 985 .

14

The Civil and Commercial Code of Thailand, Book V, Section 4.

15 New Civil Code of the Philippines, Act 54. 16

Law Reform (Marriage and Divorce) Act 1975, Article 10.

17

Ibid .

18

Civil Code for the Republic of China, Act 980 .

11

marriage is eighteen for males and sixteen for females, while in Thailand19 it is seventeen for males and fifteen for females. It is slowly dawning upon some people , especially those who are concerned about the impact early marriages may have on the birth rate of the country, that perhaps the minimum age for marriage should be raised. In Malaysia, for example, as the result of concerted efforts to raise the age for marriage , a new act was passed raising the age for marriage from sixteen for males and fourteen for females to eighteen for both males and females.20 It is clear from the legal provision for the minimum age of marriage in the various countries , except Malaysia (non- Muslim only) , that the law still assumes that a woman should contract marriage earlier than a man - hence , the two year difference . The two- year age difference in this case is primarily not a physiological consideration. Rather, i t is based on a traditionally and socially entrenched concept that a woman more than a man is ready for the responsibility of family life at a much younger age . It also reflects that society basically expects a woman to be groomed to become wife and mother and very little else. The law in a sense can be seen as perpetuating a system whereby the man is expected to be the sole breadwinner of the family. Hence delay in marriage .to enable him to improve his earning capacity by prolonging the period of his formal and informal education or training is highly encouraged and considered praiseworthy . One wonders whether , in the .context of the present, such a distinction made by the law does not run counter to the aims of national development which is also dependent upon women ' s active participation in the political, social and economic mainstreams of society . Besides , one would .think t hat in the context of national development, it is of vital importance to increase the educational level of the popu lation , approximately half of which is female . But by stipu lating an early minimum age for marriage, particularly for women, one in fact runs

19 The Civii and Commercial Code of Thailand , Book V, Secti on 1445 . 20

Ahmad Ibrahim, The Status of Mu.s U m Women i n FamiLy LCM in MaZaysia_, Singapore and Brunei (Singapore: Malayan Law Journal Ltd . , 1965), PP • 7-9 .

12

counter to this goal. A girl who marries young is depri ved of the opportunity of pursuing higher educational goals and learning advanced skills useful to the development of a career outside the home . Therefore it becomes almost irrelevant to speak of equal educational and employment opportunities for males and females when women are generally encouraged and expected to marry young, compared to men. This social norm is reinforced legal l y by law . And a more serious backlash in the tacit encouragement of early marriage for women is its counterproductive effect on the aims of the family programmes in reducing the birth rate and thus population growth. Consent. The principle of a consensual union between two people is recognized by marriage laws in the four countries except for Muslims in Malaysia. In Malaysia,21 the Philippines,22 Taiwan23 and Thailand,24 the consent of the two parties contracting a marriage is required before the marriage becomes legal . The requirement of the consent of the two parties contracting the marriage does not, of course , rule out the possibility of arranged marriages. They are still common and usual in these three countries especially in the rural areas and even among some families in the urban areas . However, such a requirement at least allows the po-tential groom and particularly the bride to object to the marriage if he or she wishes to. The consent of the bride is at least not taken for granted upon her parents ' decision , as in the case of Islamic law. Under Islamic laws, consent to the marriage is not normally required from the bride if the bride is given away by her father or paternal grandfather. Silence on the part of the girl is regarded as consent. Custom and modesty also dictate that she should not voice her opinion too strongly regarding marriage matters. Moreover, if she is still very young, her parents do not expect her to be

21

Law Reform (Marriage and Divorce) Act, 1975, Article 22 (6) .

22

New Civi l Code of the Philippines, Article 53.

23

Civil Code of the Republic of China, Articles 972-974 .

24

The Civil and Commercial Code, Book V, Section 1445 .

13

capable of very wise decisions. But most of the states in the Malay Peninsula now require some proof of the couple's consent. This is done usually by making it mandatory for the couple to sign certain forms when the marriage is reported at the Registrar of Marriages. But in the states of Perak, Perlis and Pahang the signature of the bride is not required in the registr at ion of the 25 marriage and thus consent of the bride cannot be assured. For civil marriages the law requires both bride and groom to attest to their consent by signing the marriage register. Failure to do so would invalidate the marriage.

26 the law en courages women above In the Philippines, eighteen but below twenty-three and men above twenty but below twenty-five to seek advice from their paren t s before a marriage can be contracted. In the event tha~ the consent or the approval is not forthcoming, the couple will have to wait three months after the application of a marriage licence before the marriage can take place. Presumably, the three-month waiting period would allow the couple t o try all means to persuade their parents to give their approval and also would allow the parents to relent and to withdraw their disapproval. When the three months are up and if there are no other legal obstacles to the marriage, the couple can legally be wedded even if their parents have not given their consent. Hence parental c onsent appl ies to both males and females. But here again the law continues to make an age distinction of two years between males and females . For marriage of minors, in addition t o the consent of the couple, the consent of the parents or the legal guardian o f the minor or minors is essential . In Taiwan27 and Thailand}8 a minor has to obtain consent of marriage from both parents if they are li ving t oge ther or from the parent Wli'Ohas custody o f t h e child o r the guardian . If consent from the parent/ parents is n o t given without any good reason in Malaysia and Thailand, the High Court in Malaysia and Thailand may give approval to the marriage o n application.

25

Ahmad Ibrahim, op.cit .

26

New Civil Code of the Philippines, Article 62 .

27

Tbe Civil Coda of the Republic of China, Article 981.

28

The Civil and Commercial Code of Thailand, Book V, Sections 1447

and 1493.

14

29 In Malaysia and the Philippines, 30 the law also requires parental consent in the case of a minor but the consent should be given by the father and only in the absence of the !ather would the mother's consent be required. This is obviously a discrimination against women's authority over their children. The father has the supreme authority. But the discrimination against women is even more blatant in the case of Muslim marriages. For Muslim marriages the consent from the bride's nearest male kin is essential. Under Muslim law, a Muslim girl, even though she is not a minor, cannot be married without the consent of her guardian or wati. ·· Such a requirement is not necessary in the case of the male. Abuse of power by the waZi in withholding consent to the marriage without any lawful reason is however safeguarded. Technically the woman can appeal to the ruler or his representative, usually the Kathi or Chief Kathi, to arbitrate on her behalf and to overrule any unjust decision of the wat i .31 In practice, however, it would take a woman of great courage and a reasonable amount of knowledge to oppose her guardian or her kin in such matters or to go through the whole legalistic process of appealing to the authorities. Submission in such matters is thus essentially ensured , It is not implied here that most Malay marriages are necessarily arranged by the parents against the children's wishes. In fact, many Malays nowadays, especially those in the urban areas, go through the courtship system before marriage. Even in arranged marriages it can be assumed that they are carried out with the best of intention and may very well be the happiest arrangement for all concerned. Howaver, the crucial question is why should the woman and not the man be singled out by the law to be the one whose wishes can be legally ignored. There i$ only one plausible explanation and that is a woman is essentially her father's property until she marries. Thereafter she is her husband's conce:rn.

29

Law Reform (Marriage and Divorce) Act 1975, Article 12 (1)

30

The New Civil Code of the Philippines, Article 61.

31

Ahmad Ibrahim, op . cit , , pp. 10-11.

15

Mi:r:ed Marriages Islam and Christianity do not view too favourably intermarriage between a believer and a nonbeliever. However, in Islam the interpretation of the word "believer" is more flexible for the male than for the female in the choice of a spouse. A "believer" for the male can be extended to anyone who professes to b e a k i t ab i yya ,32 that is, a person who belongs to a "revealed" religion with a holy scripture. A Muslim male can therefore marry a Christian or a Jewess and still be blessed by his faith . This right is not extendable to the female as she cannot marry anyone under Muslim law except another Muslim . This dichotomy reflects very clearly the male centred character of Islam. A male is considered the protector of the religion and it is through him that the faith is passed on from generation to generation. As for the female, her role in the Muslim faith is much more passive in the same way that her role in society and the family is. The same male bias based on religion can be said of the laws in the Philippines also . In the Philippines if a Christian male marries a Muslim or a pagan female the marriage is governed by the Civil Code but if the marriage is between a Muslim or pagan male to a Christian female then the marriage can be . performed according to pagan rites.33 The ruling here assumes the subordinate role of a wife. The wife becomes one of the husband's group upon marriage. Clearly, this law encourages the superior status of men in relation to women. There is a tendency, which is almost universal, for people to view a match as socially acceptable when both the bride and the groom are of more or less the same social class. Even if the woman is of a lower s o cial Relatives class it is not considered such a bad match . a good making for her of the bride may even congratulate catch. Unfortunately s ocial approval is quite o ften withheld if it were the reverse case. This of course, is to emphasize that a woman's social status is dependent on

32

Ahmad Ibrahim, op.cit., p. 17 .

33

The Civil Code of the Philippines, Article 79.

16

her husband's o Her station in life can be raised or lowered accordingly. While this is a social norm in most societies, in Muslim societies it has become legislated. A Muslim woman should not be given in marriage to anyone who is not. her social equal. If however she chooses to marry someone who is not her equal socially, the marriage can be considered null and void if her legal guardian appeals to the Muslim court against such a union.34 In both Taiwan and Thailand, there is no provision in the law pertaining to the question of mixed marriages between believers of different religions. The Civil Code in Taiwan applies to everyone in the country and the Civil Code in Thailand also applies to all the people in Thailand except Muslims in the four Southernmost provinces and only where all parties concerned are Muslims.35

Divorae Forms and Grounds . In Malaysia, there are again separate laws regarding divorce for Muslims and nonMuslims. While Islam accepts divorce, the independent right to seek a divorce rests solely with the husband and not the wi fe. A husband can lawfully divorce his wife by just informing her orally or in writing his intention to end the marriage. This is known as pronouncing t aZak (t aZaq) • The divorce is revocable if the husband regrets his act and agrees to take his wife back wi thin one hundred days of the pronouncement of one or two t a Zak . Within this waiting period, known as eddah, the wife is not allowed to remarry, and is required to return to her husband if he revokes the divorce. In other words the divorced wife does not even have the right to refuse to continue with the marriage if the husband so desires. The divorce only becomes irrevocable when three t aZak are pronounced either on three separate occasions or at one time, or when the period of eddah is up and the husband has not shown any desire to revoke his divorce. 36 34

Ahmad Ibrahim, op.cit., p. 17.

35 Welcome Fawcett, "Thailand," in Luke T. Lee and Arthur Larson, eds., Populat ion and Law (London: Rule of Law Press, 1971), p. 68, footnote 22 . 36

Ahmad Ibrahi m, op.cit., pp . 29-33 .

17

If it were the wife who finds her marr i age so Wlbearable that she wants a divorce, t he aven ues opened to her are limited. She has t o resort to comp lic ated leqalistic means, and even then she can on ly be d1vorce d if her husband grants i t to her by , i n ef fe ct , prono un c i ng a t a l ak because strictly speaki nq, s he doe s not have the option to divorce her husband. There are three ~ypes of divorce which a woman can seek under Musl im law . The y are che r ai t a'a lik , c herai tebus taLak (or khuL' ) and fasah (fa skh ). Che r ai ta ' alik in actua l p ractice is a con d.itl onal di vorce that the wife obtai ns f r om the husband at th e time o f the marr i age. In Mal aysi a, most states lwith the exception o f Perak, J oho re or Pe r l i s ) r equ1re that the wife be qi ven a letter equivalent t o a condit1on al divo rce if it is proven that he has failed t o mai nta1n her for an uninterrupted period of t h ree month s or h as be en missin g for a stated period of time. The wife, on appli c at1on t o the Muslim Court, can be cons idered as having one tal a k pronounced to her if her charges are proven true . In the three states where no statutory p r ovisions h ave be en made for the wife t o obtain such a letter from t he husband , t he Kathi of the state can qrant such a di vorce to t he dese rted woman and register the di vo rce as a ch e ra~ ta 'aL ik . 37 Cherai tebus tatak (or khul') i s ano ther f or m o f divorce a : Musli m woman can reso rt to i n al l the sta t e s of the Peninsula, with the exception o f Malacca , Se lango r, Neqri Sembilan and Johore, where n o statut ory provis1ons are made for this type of di vo rce. In the case of kh u L' divorce, a wife persuades her husband t o give he r a d ivorce on the condition that s he redeems herself b y paying him a certain sum. Very often, in t he ca se o f Mal ays i a, the form of payment is the amount o f dower t he husb and has spen t on her at the weddinq o r it may be some propert y wh1ch t he wife agrees to transfer t o the husb and' s n ame as settleme nt for the divorce. This in prac t i ce l i mi t s t his type of d1vorce only t o women o f means o r women who h ave p r operty 1n the1r names. More i mpo rtant, h owever, is t hat the decisi on t o accept or refuse such a divo rce lies comple tely wi t h the husband. If the husband refuses t o accept t he cond i tion o f the divorce, the Muslim Court on application by t he wife can normally only appo int a rbitrato rs t o -exami ne t he c ase and help the parties t o come to s ome ac cept abl e terms 37 Ahmad Ibrah i m, op . cit . , pp . 34- 35.

18

for the settlement. Subtle pressures may be used to try to persuade the husband to grant the divorce and accept the payment. 38 Another form of divorce acceptable to the Muslim Court is fasah, when the wife can prove that the husband is suffering from some physical defect, for example, impotence, insanity, leprosy or elephantiasis. A man proved to be suffering from such physical defects would have to grant his wife a divorce. This right is also extendable to the husband, but since a man has a right to pronounce taZak , he normally does not need to resort to

fasah . 39 Divorce, by the above means, requires the woman to be fairly well-versed in Muslim laws. Application to the local Kathi or Chief Kathi also requiresthe woman to be literate enough to fill in all the necessary forms. Generally the woman would ask the help of a near kin, such as a male cousin, to help her deal with the bureaucratic paper work and help her face the tirade of questions by a generally unsympathetic Kathi . Common experience in Malaysia seems to indicate that more often than not the Kathi is much more sympathetic to the male than to the female party.40 Thus some women, who do not want to undergo the legalistic process of applying for these special categories of divorce, have been forced to seek the uncharitable means of making life so miserable for their husbands that they divorce them.41 That a woman has to resort to guile to obtain her freedom from a union that she finds insufferable is in itself an indication of the unfair state of things. Furthermore, the three forms of divorce available to the woman are based on the assumptions that women should have no complaint against husbands so long as they support them and have no physical defects. The emotions of a wife are completely ignored. For the 38

Ahmad Ibrahim, op.cit . , pp . 36-39.

39

Ibid., pp. 40-42.

40

M.A. Razman, "Malaysian Women Win Reforms," Asia Magazine , 13 July 1975: 16 .

41

Michael Swift, "Men and Women in Malay Society," in Barbara E. Ward (ed.), Women in the New Asi a, 2nd impression (Paris: UNESCO, 1965), p . 273.

19

woman, marriage should only be considered in utilitarian terms. Thus, under Muslim law, a wife can be disposed of at the husband's pleasure. The inequality which a woman has been subjected to has often been justified by the interpreters of Muslim law. The argument can be best summarized in the writing of the Egyptian writer , Ibrahim Abdul Hamid, in Ahmad Ibrahim's article 42 on the status of Muslim women: ••• conjugal relations are the basis of any civilized society and therefore if marriage is not stable enough society may be in danger and collapse may occur. To obtain such stability as far as possible the tie of marriage must be put in the firmer hand . This hand seemed t o be the husband's and not the wife's, because he was of better judgement and less reckless. Besides he has paid or bound himself to pay her dower and maintenance. This would make him think twice before deciding on divorce. It i s undeniable that a woman might be wiser and even the very perfection of wisdom, but it is not often the case. Predominantly she is impatient, quick to judge, and quick to listen to sentimental calls •..• The quotation above reflects the attitude of the males with regard to their and the woman's capabil ities . The latter is definitely considered an inferio r creature in Nature's realm and should best be kept in her place, that is, in complete submission to the superior man. Of course not all Muslims, especially progressive ones, would accept this argument. But as dictated by the law on divorce , the lot of the Muslim wife appears to rest ent~rely upon the good faith and the good sense of the husband . Divorce for non-Muslims i n Malaysia is under the Civil According to the new Act a marriage can be Code. Law dissolved either by mutual consent41 or by JUdicial

42

Ahmad Ibrahim, op.cit., p. 98 .

43 Law Reform (Marriage and Divorce) Act, 1975 , Article 52 .

20

44 decree. Husband and wife can jointly present a petition for divorce to the Court and if the Court is satisfied that both parties freely consent and that proper provision is made for the wife and the support and custody of the children, it may then dissolve the ~arriage.45 Also, either party to a marriage may petition for a divorce by judicial decree on the ground that the marriage has irrevocably broken down.46 Adultery on the part of either party to the marriage is accepted as a cause for divorce. 4 7 .Also, it is stipulated that no petition for divorce shal l be presented to the Court before the expiration of the period of two y ears from the date of marriage.48 Also , the Court requires that before the presentation of a petition for divorce the petitioners must have made efforts to effect reconciliation.49 Similarly in both Taiwan and Thailand, a marriage can be dissolved by mutual consent or by judicial decree. In the case of divorce by mutual consent in Taiwan, the divorce must be made in writing and have the signatures of at least two witnesses,SO and in Thailand51 the divorce must also be made in writing and registered at a district office by or before a marriage officer. In both countries, a judicial decree of divorce can be sought by either party to the marriage.S2 The grounds for divorce are the same for both the husband and the wife except that in Thailand adultery by the wife is accepted as grounds for divorce while adultery by the husband is not. Although in the Philippines, divorce is not allowed by the law, legal separation (which is understood as different from a severance

44

Law Reform (Marriage and Divorce) Act, 1975, Article 53.

45

Ibid., Article 52 .

46

Ibid., Article 53.

47

Ibid., Article 54 (1).

48

Ibid., Article 50 (1).

49

Ib id . , Articles 55 and 106 (1).

50

The Civil Code of the Republic of China, Articles 1049-1050.

51

The Matrimonial Registration Act , 1935 (of Thailand), Sections 1498-i499J.

52

The Civil Code of the Republic of China, Articles 1052.

21

of the marital bonds) is permissible. Similar t o t he Civil Code in Malaysia, legal separation is also largely based on the fault principle. But, adultery is a lega l cause for separation for the man but not the woman. The woman can only file a petition for legal separation against the husband for concubinage . S3 This is highly discriminatory against women. The law seems to imply that marital fidelity is only for the woman whereas incidental or even continuous acts of infidelity on the part of the husband are normal and to be tolerated by t he wife. As pointed out by Irene Cortes,S4 if one act of infidelity by the wife is suffi c ient for legal separat i on , it should be equally so when the husband is the unfaith ful spouse. While a husband can obtain a legal separation on the basis of one act of infidelity of the wife, a wife has to establish concubinage by her husband before she can apply for legal separation. This law is based on double standards which exist in most societies, in particular, Asian societies which permi t men much more freedom from marriage commitments than it is ready to con cede to women. The legal provision of adultery by the husband as a legal cause for divorce in Malaysia (non-Muslims) and Taiwan should be considered and adopted by these other Asian countries. However, in view of the cultural and social constraints, one cannot help being skeptical of t he extent to which wives in fact seek divorce on the grounds of adultery by their husbands. Nevertheless, the existence of such a provision at least gives a woman the lega l right to do so if she so desires. Maintenance of Divorced Women and Children In Malaysia the Muslim law regarding the maintenance of the divorced wife and the custody of the children also seems t o work to the disadvantage of the woman. A man who divorces his wife by one or two taZak is required t o

53

Co11111ission on the Status of Women, Th~ RoZe of Women in the PhiZippines (Manila, 1975) , p. 15.

54

I rene R. Cortes, Women's Right Under th~ 19?3 Constitution, Professorial Chair Lectures Monograph No. 10 (Quezon Ci t y: Uni versity of the Philippines Press, 1975), p. 20.

22

pay her maintenance for the · period of eddah . just as before the divorce. However., ·the .provision of maint:enance is dependent upon ~he wife's continuance of subjecting herselj to the husband·' s,. contro~ with - reg'ar~ to her place of residence. and ··he.r behaviour, and is available only if the cause for~he divorce was of no fault of hers.SS If the divorce · i ·s . irrevocable, for exarnp.le, divorce by three ta tak or when the period of eddah is up without the divorce being revoked, the wife is not entitled to maintenance unless she is !:>roved · pregnant by her husband. ·· In the - case of a woman being divorced· irrevocably, · the only tneans of , support would be whatever .p roperty she acquires as settlement for the divor,ce~ The law depicts that whatever property she has brought with · her to the marriage be reverted to her on divorce. Conjugal property, or property acquired jointly by both husband and wife whilst the marriage :··sUbsists, is divided. The share a wife is ·entitled .to varies fl;'om state to s·t ate and is usually modified by custom. The usual - share of conjugal property for the wife varies between one-half to one-third. Normally if the. conjugal property is in the form of land and if she has helped to work it, then her share is normally one-half. But if she has not phys i cally helped in the cultivation of the . land, her share would be reduced to one-third·. In· the urban areas however 'the question of conjugal property becomes more. problematic . Most urban Malay men are wage-earners with a fixed salary and the wife is usually not in employment. In this case the husband may argue that whatever property he p~rc~ased or· whatever goods he has acquired -are paid for from- his own earnings56 and that the · nonwoFking wife has not contributed in monetary terms . to the ·purchase of such goods. Hence very often the wife is not entitled to a share. Local customs have fortunateiy moderated the strict interpretati-on of the ·Muslim laws and improved the lot of the divorced woman : somewhat •. ·In par:ts of Negri Sernbilan and Malacca the· division of property is according to the local customs· of that area. The customs followed here are

55

Ahmad Ibrahim, op.cit., p. 52.

56

Ahmad Ibrahim; Islamia ·LCIJJ) in Malaya (Singapore: ·· Malaysian Sociological Researc.:h Institute Ltd., 1.9 65)·, p·. ·231.

23

56 Under adat perpateh the referred to as adat perpateh . conjugal property is divided equally between husband and wife even if she were at fault. If the divorce was an instance of oherai ta'alik,57 then the wife gets all the conjugal property . S8 Outside the adat perpateh areas, customary laws can also be resorted to in the settlement of property in the case of divorce .

The greatest hardships are suffered by the divorced woman if she 1s left with young children. The law states that the custody of a girl ~s her mother's up till the age of puberty and that of a boy up till the age of seven. Thereafter the custody of the children is the father's . The law however allows any child who has reached the age of discernment to exercise an ~ndepende nt choice as to which of the parents he/she would like to foli ow . The custody of the children ceases to be the mother's if she remarries, or when she has moved far from the father's place of reside~ce, except when her residence is her Custom however appoints very young parents' home . S 56

The adat p~rpar;~h system is followed mainly by the Malays of Neari Sembilan and M&lacca where the Malays had originally migrated from tha Hinangkabau districts . The social orRanization of these people was matrllineal . This system is preserved even today . Hen'e many of the family laws and laws of inher1tance are according to adat rather than strict Muslim laws . The Malays i n the other statea tend to follow adat te~ggong which had been the basis of the tribal organ1zation of the people who miarated from the Palembang districts of Sumatra . It is believed that the tribal organization of the Palembang dwellers was already disintegrating as a result of the Hindu monarchical influences even before the coming of Islam. The customary laws were modified as a result and became much more stronaly patr1archai in character . Further modificatlon under Islamic influence made the adat teme~ggong sysr;em more in line with the Islamic socio-political system. For further details, see Jo6eph Minat tur, "The Nature of Malay Customary Law," and Ahmad Ibrahim, "Islam and Customary Law in the Malayan Legal Con text," in David c. Buxbaum, ed , Fami l y LCJU) and Customary LCJU) 1-n As 1-a: A Contemporary Legal Perspecti ve (The Hague: Martinus N1jhoff, 1968), pp . 17-39 and pp , 107-145 .

57

See aection on Divorce .

S8

Abaad Ibrahim, op . cit., p . 233 .

59

~

Ibrahim, op . cit . , p . 235 .

24

children below the age of nine to remain with the mother and those above that age to choose the parent they prefer to follow . 60 Girls are expected to follow their mother and boys, their father. The financial burden on the divorced woman with very little independent wealth can be quite substantial. Although the father has to pay maintenance for his children, this sum is generally inadequate. Moreover, i t is not unusual that the maintenance is not forthcoming very regularly , especially if the father has meanwhile contracted another marriage or is unemployed . A divorced woman with a number of very young children will also find it extremely difficult to obtain full - time employment to support herself and her children . Moreover, being usually neither highly educated nor equipped with any specialized skills , the employment opportunities available are very limited. Probably the only jobs for a woman in such circumstances would be some part-time employment. She may find some work as domestic help or she may make some handicrafts like mats and plastic flowers which she sells at the local market. Very often the quickest solution to her problem would be to find another suitor if she is still young and attractive . Although there may be no lack of suitors who would be glad to give her another home, the one who would also be willing to take in her chi ldren would be rare. Of course, the law states that her custody of the children ceases when she remarries, but more often than not, most children would still follow the mother unless their natural father files a su~t to claim them . The Malays, however, are well-known for their generosity towards children. It is rare that young children would not be given a horne by some relative when it is inconvenient for the mother to take care of them herself. So, very often , the mother would leave the children with their maternal grandmot.her or an aunt temporarily and then slowly persuade her newly acquired husband to accept her children by a previous marriage. Generally , the divorced woman is much better off if she were in a village setting. Here , because of the more integrated nature of the community , she and her young children would be more easily and readily taken care of by her relatives. Moreover , the presence of the relatives and the type of social sanctions that prevail in most

60 Ahmad I br ahi m, op.cit . , p. 237 .

25

v illages als o help t o ensure t hat she gets h e r proper maintenance and a fair share o f the property from her d ivorced husband. The divorced wife in t he towns can be left in quite a desperate p light ~ He re the social sanctions are generally not strong eno u gh t o e n sure that the rights of the divorced woman are properly respected. The woman can o f c o urse assert her rights by appeal~ng to the Muslim Court. But legal processes, which have a tendency t.o be long drawn out and tedious, are generally avoided as far as possible by the poor and ignorant. Very often, as some writers have already noted, many of these destitute and deserted women become the chief source of recrui ts f or unsavo ury occupations like pros titution and bar-wai tressing . 61 According t o the ci vil law for non-Muslims in Malaysia, the Court may o rder a man to pay maintenance to the wife.62 The Court may als o order the wife to pay maintenance to her husband where he is wholly o r partially incapacitated from earning a l~vel~hood by reason of mental or physical injury or ill-health.63 The right t o maintenance from his/her former spouse ceases wh en the person remarries or lives in adultery with any o ther person.64 As to the custody over children under eighteen, the Court may order that a child be placed in the custody o f his/her father or his /her mother65 but t.he interest of the children is given paramount consideratio n though the wishes of the parents and the wishes of the child are also regarded.66 Also a parent has a duty to maintain his/her children whe the r they are in his/her custody or the custory of any othe r person.67 Furthermore, on divorce, the Court may order the divi sion of a matrimonial assets, taking i n to consideration the

61

Michae l Swift, op . cit., pp. 274-275 .

62

L• Jl.afora (Karriaae and Divorce) Act 1975, Article 77 (l) .

63

Ibid., Article 77 (2) •

64

Ibid., Article 82 (l) •

65

Ibid . • Article 88 (1) .

66

Ibi4 . • Article 88 (2)

67

lbi4 • • Article 92 .

26

contributions of each party, debts and the needs of children who are minors.68 In the case of the Philippines, Taiwan and Thailand, the law is slightly more equitable than Muslim laws in Malaysia in terms of custody over the children and the division of conjugal property . In the Philippines, the custody of the . children is given to the innocent party in the case of a legal separation.69 When the marriage is dissolved through annulment, the court awards the custody of the children to whoever it deems best, in the interests of the children . The Court also makes provisions for their support and education . As to conjugal property, this is equally divided upon legal separation or dissolution of the marriage . In Taiwan and Thailand, in the case of divorce by mutual consent, the spouses must agree as to which of them has parental authority over the children . In ~he absence of such an agreement, parental authority belongs to the fat.her . 70 In the case of divorce by a judicial decree, the law of these two countries differs slightly. In Taiwan, the spouses again must come to an agreement as to who has parental authority over the children and, in case there is no such agreement, the parental authority rests with the father71 but the Court may, if it sees fit, give parental authority to either one of the spouses or appoint a new guardian . 72 Also, where one of the spouses suffered damage from a judicial divorce, he or she may claim compensation from the party at fault. Furthermore, where an innocent spouse is reduced to difficulties in livelihood on account of a judicial divorce, the other spouse, even if he or she is innocent, shall pay an equitable sum for maintenance.73

68

Law Reform (Marriage and Divorce) Act 1975, Article 76.

69

New Civil Code of the Philippines, Article 106, No . 3 .

70

The Commercial and Civil Code of Thailand, Book V, Sections 1052-53. The Civil Code of the Republic of . China, Article 1051.

71

The Civil Code of the Republic of China, Article 1051.

72

Ibid., Article 1058.

73

Ibid., Articles 1056-57.

27

In terms of property, each recovers his or her own property whatever their matrimoni al property regime may be. If there is any deficit, it is borne by the husband unless such deficit arises from circumsta nces for which he is not In Thailand, parental authority belongs to responsible ~ 74 the i nnocent party. However, the Court may, if it sees fit, make an order giving parental authority to the other party or appoint a new guardian.7 5 Also , both parents are bound to maintain the children of the dissolved mar riage.76 The Court may, on a decree for divorce, order the guilty spouse to pay maintenan ce to the innocent spouse if the latter has insufficie nt income or no means of his or her own.77 The right to maintenan ce is extinguish ed on remarriag e.78 Upon divorce, the Si n Bor-z,kon (Community property) is dissolved . The husband and the wife will take possessio n of their S i n Derm (property belonging to either spouse before marriage or property subsequen tly acquired and declared by a will or gift to be so) , and each spouse is entitled to one -half of the Si n Som r od if both spouses had or did not have any Si n Derm. But if one spouse only has S -z, n Derm , he/she is entitled to two-third s of the S i n So mrod. 79 The crux of the problem of maintenan ce of divorced women in general is that the maintenan ce may not be forth coming regularly and the woman is completel y at the mercy The woman, of course, can take legal of her husband. action aga1nst the husband but, as repeatedly stressed, a woman has to be educated and well-vers ed in the law besides hav1ng the financial means of obtaining legal aid before she may take such an action. Furthermo re, it is also very difficult for women who generally do not have the necessary training and education to obtain such full-time employmen t as can support herself and possibly her children . Remarriag e

74

Tbe Civil Code of the Republic of China. Article 1058.

75

The

76

Ibid. • Section 1504 .

77

Ibid . • Section 1506.

78

Ibid . • Section 1508 .

79

Ibid. • Section 1517.

Coa~ercial

ar&d Civil Code of Thailand t Book

v.

Section 1503.

28

of women in the Asian context, except in Islamic societies, is often difficult. Remarriage may perhaps be an alternative means to obtain support but remarriage of women in the Asian context, except in Islamic societies, is often difficult. In short, divorced women are often left without any support or means of support. This is because society has made women so dependent on men - first on their fathers and then on their husbands - that they are at a loss when they can no longer depend on others. It is really pathetic to reduce women to such a helpless state. Moreover, because of this helplessness, women often are forced to tolerate ill-treatment of their husband, such as infidelity, so as to avoid being "unprotected", since the chance of remarriage, except in Islamic societies, is low, particularly if they have children. Besides, there are in these Asian countries very strong cultural and social pressures against divorce, particularly, when sought by a woman.

Remarriage Remarriage of widows or divorced women is very acceptable in the context of Islamic societies since divorce is very common. The period between the termination of one marital union (either through divorce or death of one spouse) and the contract of another is also relatively short. There is nothing, for example, to prevent a man from entering into another marriage almost immediately after the termination of one. For the divorced or widowed woman, however , a waiting period (eddah) of usually one hundred days is required before she can contract another marriage.80 The rationale for the period of eddah is to reduce the risk of confused paternity of children since an illegitimate child has absolutely no place in a Muslim society. If a woman is found to be pregnant, her period of eddah ends only at the delivery of the child. Hence if a divorce takes place before the marriage is consummated there is no waiting period required. But if the husband dies before the marriage is consummated the widow is expected to show her respect for the dead by observing the period of eddah. While there is no objection as to the way respect is shown for the dead spouse, one may rightly question why respect is due only from the widow and the same cannot be expected of the widower. 80

Ahmad Ibrahim, The Status of Muslim Women in Family Law in Ma~aysia, Singapore and Brunei (Singapore: Malayan Law Journal Ltd., 1965), pp . 44-47.

29

In the Philippines, Taiwan and Thailand, the widow or divorced woman is subjected to even a longer waiting period before she can remarry. A widow or a woman whose marriage has been dissolved is not allowed to remarry until after a period of time has elapsed - 300 days in the Philipp1nes,8l 180 days in Taiwan82 and 310 days in Thailand ,83 unless she has in the meantime given birth to a child. Here again the argument is t.o prevent any confus1on over the pat.ern.ity of the ch1ld. But, as some Filipinos have argued, pregnancy or nonpregnancy of a woman nowadays can be medically certified without waiting 300 days . 84 Hence the imposition of such a long waiting period is an unnecessary impediment against a woman's right to exerc ~se her independence of choice. Parental Aut.hori ty In all of these four countries, descent is traced through the male line, and perhaps it is on the basis of this that partiality 1s generally shown in law pertaining to the father's authority over his children. The exception is found in the adat perpate h areas of Negri Sernbilan and Malacca where descent is traced through the female line. Children in a ll these societies take the father's name, although in the case of the Malays it is the father's given name whicb is taken and not the surname. The law in all four countries 1s definitely partial to the father. For non-Musl 1ms in Malaysia85 and in Thailand,..86 the father is acknowledged as having first priority in claiming guardianship over the child and his / her property . It is only in the absence of the father (for example, 1f he is dead or when the child has no lawful 81

The New Civil Code of the Philippines, Article 84 .

82

The Civil Code of the Republic of China, Article 981 .

83

The Commercial and Civil Code of Thailand, Book V. Section 1445 .

84

Co~ssion

on the Status of Women, PhiLippines (Manila, 1975), p . 16 .

8~

The Guard1anahip of Infanta Acts, No . 13, 1961 (Malays i a), Sections ~ and 6; Ahmad Ibrahim, "The Status of Women in Family Law i n Malaysia, Sin.aapore and Brunei," Mal-ay LCIJ.I) Revi euJ, December 1966: 233 . The Commercial and Civil Code of Tha1land, Book V, Sections 1537-38.

86

Th~

Rote of Women i n

th~

30

father) that the mother becomes the legal g u ardian over the child's person and property . In the Philippines87 and Taiwan88 on the other hand, both the mother and the father jointly exercise parental aut hority over their legitimate children. In the case of disagreement , the father's decision would prevail . But in both of these countries the father, or in his absence the mother, is the administrator of the property pertaining to the chil d under parental authority.89 However, to protect the interest of the child, the Court in these four countries may remove guardianship of the child from any person if he/she has acted in any way contrary to the child ' s interest . Similarly, Islamic laws bestow a position of supremacy on the father . Most major decisions are taken by the father, though in practice , in consultation with the mother. In matters of marriage, for example, it is the father who must give his blessing and perform the ceremonies. As pointed out earlier, he is the one, not the mother , who must act as the girl ' s wat i , and in the case where he is deceased, it is the paternal grandfather (again, not the mother) who acts in his place. Whatever role the mother might have in the decision of the marriage is p l ayed only behind the scenes. Once the decision is made, the father's role becomes paramount. Furthermore, in both the Philippines and Malaysia, the mother would completely lose her authority and control over her children when she remarries. In the Philippines, a widow who remarries would lose her custody over the chil dren unless it is specifically stated in the will of her deceased husband that she should retain her parental authority over the children.90 In Malaysia, the same applies to a divorced or widowed woman who remarries, unless the Court deems it fit for the general welfare of the children to al l ow the woman to retain custody over them.91 In practice, as pointed 87

The New Civil Code of the Philippines. Article 311.

88

The Civil Code of the Republic of China. Articles 1086 and 1089 .

89

The New Civil Code of the Philippines. Article 320. Code of the Republic of China. Article 1088 .

90

The New Civil Code of the Philippines . Article 328 .

91

Ahmad Ibrahim. "The Status of Women i n Family Law in Malaysia. Singapore and Brunei," MaLay Law Review . Vol. 8 (2) 1 1966: 267 .

The Civil

31

out earlier, in Malaysia the children usually follow the mother although she may have no legal right over them any more. In contrast, in Thailand, the mother retains her parental authority over her children even if she remarries.92 The law in Taiwan does not specify whether the mother loses her parental authority upon remarriage. However, this loes of parental authority upon remarriage is not extendable to the father. He still retains parental authority upon remarriage . This seems to suggest that a father's authority over his children is unchallengeable while a mother's is dependent on whether the father desires so and whether or not she remarries . One would think that a mother's parental authority over her children is strictly by virtue of the fact that she is the mother of the child, a fact which is established at the time of the birth of the child. Of course, it can be decided that the mother ia not fit to exercise parental authority on the basis of her phyaical or mental disability but such a dec i sion ahould not be based merely on the fact that she has remarried. There is no evidence to show that a mother who haa remarried is necessarily less competent, at least no leaa competent than a father who has remarried. The law, in granting priority of guardianship to the father, ahould also give prior responsibility of maintenance of the child to the father , While this is legally recognized under the Muslim law and civil law in Malaysia the aame is not so clearly specified in the laws of the other thfee countries. While the law in the Philippines,93 Taiwan,9 and Thailand95 singles out the father as having the final say, or as having priority over the mother regarding authority over the children, it does not specify auch an expectation when it comes to the provision of maintenance . The law only states that maintenance and education of children below the age of maJority should be provided by the parents, failing wh1ch by their next-cfkin. Of course in practice t:.he father in these t:.hree countries, like fathers elsewhere, is generally the sole

92

Tba Caaa.rcial and Civil Coda of Tbailaod, Book V, Section 1540.

13 lew Civil Coda of Philippine•, Article• 291. 294 and 295. t4

!be Civil Code of the Republic of China, Article 1089 .

IJ !be

eo... ~cial

lAd Civil Coda of Thailand. Book

v.

Section 1536.

32

provider for the family but he is not l egal ly required to be thus. The mother is also legally bound to support h e r children. The point raised here is to question the eagerness of the law to bestow authority on the ma l e, on the one hand, while neglecting to distribute responsibility in the same measure. However , i t must be pointed out that the law in the Philippines does state that in the case of damages incurred by a child below the age of majority , the cost of the damage mu st first be borne by the father and only failing which by the mother . 96 Somewhat differently , under Mus l im law , a person has a right to claim maintenance from any of his ascendants or descendants if in need . A child should claim maintenance first from its lawful father, and only failing this , should it claim maintenance from its mother . 97 Thus the Muslim law states that the father is responsible for maintaining his sons till puberty and his unmarried , divorced or widowed daughters . The Malaysian law now makes it mandatory for a man to provide for his children at least up to t h e age of fifteen in a l l states , except in Selangor, Kelantan and Tren gganu where he is expected to provide for his children until they reach the age of eighteen . 98 In all other states an attempt is made to amend the law and make ~t in line with that of Selangor , Kelantan and Trengganu . But a person who is poverty-stricken and has insufficient means for his own living is exempted from providing maintenance for his children. In this case maintenance can be demanded from other relatives or even from the common funds of the mos q u e. Only in the ad at perpateh areas o f Negri Sembilan ,. where the ruler is matrilineal , does the rule of maintenance o f children differ from that of the other states . Thus all children trace their descent through the mother ' s tribe . ~fuile the marriage subsists, the father has the obligation to support his children , but when the marriage termin a tes with divorce the custody and the maintenance of the c h i ldren become the responsibility of the mother and her tribe .99

96

The Civil Code of the Philippines , Art icle 2180 .

97

Ahmad Ibrahim, IsZamia LCIJJ) in MaZaysia (SingapC?,r e : Malaysi an Sociological Research I ns t itut e Lt d. , 1965), p . 237 .

98

Ibid. , p. 238.

99

I bid . , p . 237.

33

Thus illegitimate children, adopted children and ch1ldren of divorced parents in the adat perpate h areas will have to look to the mother and her tribe for care and maintenance. But in this case the tribe makes sure that neither the mother nor her children should be in want of food and shelter . Inheritance Rights The inheritance law of Muslims is undoUbtedly partial towards the males . Under Muslim law a male is entitled t o two shares for every one share bestowed on his s1ster. In the case where the deceased parent leaves only a female child, she is entitled to one-half of the parent's estate . If a person leaves only daughters but no sons, his daughters share two-thirds of his estate. A widow's inher1tance varies from one-eighth to one-quarter. If a man leaves no issue, the widow's claim is one-quarter of the deceased estate, but if he leaves issue, her share is only oneeighth.lOO Very often, the application of the rules of inheritance is rather flexible in Malaysia. Local village customs (ada~ kampong) rather than Muslim law may be involved, especially when there is no dispute from ~he inheritors for the strict observation of the Muslim law . The share of one-eighth or one-quarter for the widow is often insufficient to maintain her, especially 1f the estate were small and the family of the deceased poor. Local customs normally allows the widow anything from one-half to the whole of the deceased estate.lOl The basis for allowing the widow to get more than her legal share according to Muslim law is that the woman has helped in the cultivation of the land . This property is treated as conjugal property . Hence the observation of local customs is often to the benefit of the widow. As noted earlier, the rules of inheritance under

adat perpareh is different from Muslim law or civil law. In the adat pe rpa r eh areas the rules of inheritan ce are according to adat and are followed to the exclus1on of Musl1rn laws. According to adat all ancestral property are

100 Ahmad Ibrahim, Ths Status of MUslim Women in FamiLy Law (Sinaapore: Malayan Law Journal Ltd . , 1965), p . 81. 101

Ibid. • p. 82 .

34

vested in the tribe and can only be inherited through the female members of the tribe " The females are regarded as custodian to the ancestral property. Ancestral property is n ona lienable .102 Ancestral prope,rty is divided equally between the daughters of the deceased women. If she is not married, the property would pass on to the descendants of her closest ascending female kin. If a man dies, the property he brings with him to the wife's tribe at the time of the marriage returns to his tribe through his nearest female kin, that is, his sister o Only the property which has been acquired while the marriage subsists is left to the widow and his children . The property which a person has acquired on his own accord can be disposed of as the person wishes before he dies , Once the person dies, all property belonging to him becomes ancestral property even if there are no direct female kin to inherit the property.l03 The male descendants cannot inherit any ancestral property even if there are no direct female kin . They are, however, given life-occupancy on the ancestral land.l04 This means that the person is entitled to a share of the produce of the land . In general, the life-occupants do not stay on the land themselves or make any claim on the produce from the land as they would be working on the ancestral property of their wives. In the adat perpateh areas, a man, on marriage, is considered to belong to his wife's tribe. The property or earnings he brings with him to the marriage therefore should also belong to the wife's tribe while the marriage subsists. On divorce or upon the death of either spouse, customs dictate that the property should be properly distributed. The property a man brings with him to the marriage is known as hal""ta pembawa ; the property a woman brings with her to the marriage is known as harta dapatan . Whatever property obtained during the marriage is known as harta oharian Z. a k1--bir.i or the joint property of the husband and wife. On divorce or death of either spouse, the property which i.s brought at the time of the marriage returns to the individual or his/her tribe o This property is inheritable

102 Ahmad Ibrahim, op.cit., P• 85 . 103

Ibid . , pp , 86-87.

104

Ahmad I brahim, IsZamia Law in MaLaya (Singapore: Malaysian Sociological Research Institute Ltd . , 1965), p . 259.

35

through the person ' s n e arest female kin. The joint property 1s divided equally between husband and wife on d1vorce . On death if there 1s no issue, the joint property belongs ent1rely to the surviv1ng spouse . If the person leaves s~ouse and issue, then the property i s left to Thus in the ada t p6r pa te h areas it is very these . lO important for the relatives to make sure that the couple declares systematically each person's property before marr1age and th1s would be noted by one another's k i n . On divorce or death , the property is once more assessed. All debts and funeral expenses have to be settled first before the property is distributed . Under c1vil law 1n Malaysia , on the other hand , there 1s no d1st1nct1on of 1nher1tance rights between the leg1t1mate 1ssue of the deceased . The 1r share , male or female , would be equal . There 1s however differential tre atmen t for a surv1ving spouse. A widow 1s entitled to one- half of Lhe husband ' s estate if there is no lssue or one-thlrd 1f there 1s 1ssue . However , a widower can i nher1t the whole of the wife ' s estate if she dies i ntestate . Where the custom recogn1zes the plurality of wives, the widows all share equally that portion which the wife o f the deceased would have b e en entitle d to , as in monogamous unions.106 Also , the Court has the power to order payment out of the deceased ' s estate for maintenance to the dependents of such deceased where there is no reasonable Dependents refer to a prov1sion by w1ll and/or by law . wife or husband, a daughter who has not been marr1ed or is, by reason of some mental or physical disabil1ty , incapable of ma1ntaining herself, an infant son and a son who 1s , by reason of some mental or physical disability, incapable of ma1nta1n1ng hlmself . l07 The d1sposit1on of property as discussed above applies o nly in ~he case o f a pers on dying 1ntestate . A person is enti~led under c1v1l law to d1vide his;her property according to h1s j her wish if a will is left . In order that the rightful

lOS

Ahmad Ibrahim, op . ci t . , pp . 260-261.

106

Ahmad Ibrah1m, "The Status of Women in Family Law i n Malaysia , S1ngapore and Brunu," MaZay LClJJ> Review , VoL 8 (2) , 1966: 247. Distribution Ordinance, 1958 (Malaysia), Section 6 .

107

Inheritance (Family Provis1on) Act 39/1971, Section 3.

36

dependants would not be left unprovided for, the Court may in defiance of the testator's will rule otherwise, if the disposition of property is unreasonable.l08 The disposition of property by will is not recogniz~d under local adat.l09 The Muslim law in the states of Malaysia however allows a Muslim to dispose up to one -third of his property by will . · The rest is disposed of, accordi ng to Muslim law.llO . 111 T a1wan . 112 an d Th a1'l an d , 113 In the Ph 1' l'1pp1nes, there is no inequality of treatment in inheritance rights based on sex. The law puts husband and wife on equal footing . If a person dies intestate leaving a spouse, issue and parents surviving , they are entitled to the estatell4 in equal shares, regardless of sex. If the deceased leaves no issue, the surviving spouse is entitled to one - half or two-thirds depending on who the other surviving near relations are. If the deceased leaves no issue and no near relationsi the surviving spouse is entitled to the whole of the estate. 15 In addition, in Taiwan, similarly as in Malaysia , a testator may freely dispose of his or her property by a will so long as he does not contravene the provisions in regard to compulsory portions to the rightful dependants . In general, the compulsory portion of an heir is one-half of his or her successional portion, except in the case of a brother or a sister or a grandparent where the compulso~ portion is one - third of his or her successional portion.ll6

108

Inheritance (Family Provision) Act 39/1971, Section 3, p. 268 .

109

Ahmad Ibrahim, IsZamia LaJ.v i n MaZaya (Singapore: Malaysi'an Sociological Research Institute Ltd . , 1965)~ p . 268 .

110

Ibid., p . 264 ,

111

The New Civil Code of the Philippines, Article 287 .

112

The Commercial and Ci vil Code of Thailand, Book V, Section 1635 .

113

The Civil Code of the Republic of China, Articles 1138 and 1144.

114

In Thailand estate refers to the person ' s Sirl Borikon and Sin Suan Tua.

115

The Civii Code of the Republic of China, Article 1187 .

116

Ibid . , Article 1223.

37

Proper't.y Rights While laws on matrimonial property are different in these four countries, they share one common characteristic. The husband is generally given the power to manage and administer the conjugal property while the management of the household is bestowed on the wife . Such a legal provision clearly demarcates the role of the husband and that of the wife following the traditional stereotyped roles of men and women. In Thailand , under the Commercial and Civil Code , property is divided into four categories:

matrimon~al

a,

Sin De~m 1 17 refers to property belonging to

spouse before marriage or property subsequently acquired and declared by a will or gift to be so;

e~ther

Sin Suan Tua, that is, separate property. This b. includes property s et a side for the purpose of an antenuptial agreement, property subsequently acquired and declared by a will or gift to be so, personal property and an engagement ring;ll8 Sin Som~od , that is, marriage property , This c. consists of all property acquired by either spouse during marriage;ll9 Sin Bo ~ ikon, that is, community property . d. consists of Sin De~m and Sin Somrod.l20

This

Each spouse has an exclusive right of enjoyment of his/her It is only in this connection that full own s ~ n S u an Tua . equality of sta~us is obtained . Unless the antenuptial agreement otherw~se provides, the husband ~s the adminisThe wife cannot sue trator (manager ) of the S i n Bori kon . or be sued or make contracts with regard to it without the husband's consent 121 unless in the absence o f the

117 The Commercial and Civil Code of Thailand, Book 118· Ibid . , Section 1464. 119

I bid. , Section 1466.

uo

Ibid. , Section 1462.

121 I bid. , Sect i on 38 .

s , Section 1463 .

38

122 husband and, in the latter case, the wife may only exercise powers over her own share in Sin Borikon . l23 Conversely, the wife's consent is necessary to the validity of the husband's disposal of the par~ of Sin Borikon belonging to his wife's Sin Derm or Sin Somrod. Furthermore, t .he husband may not make gifts of the Sin Bo%'i.kon without the wife's consent . l24 In contrast, there is greater equity in the Philippines: all the property of the conjugal relationship of gains is now owned in common by the husband and the wife.l25 The husband is the administrator of the conjugal property while the wife is given management of the household.l26 But the husband cannot alienate the conjugal property without the wife's consent.l27 The situation in Taiwan is somewhat more complicated but generally equity is recognized. The husband and wife may before or during marriage adopt by contract one of the three contractual regimes provided by the law.l28 Where husband and wife have not adopted by contract any system for holding of conjugal property, the statutory regime $hall be taken as the conjugal property regime.l29 The matrimonial property is divided into three categories: a. Union property, that is, all property belonging to the spouses at the time of the marriage as well as property acquired by them during the continuance of the marriage . But the separate property of the wife is excepted.l30

122

The Commercial and Civil Code of Thailand. Book 1. SectiOD 39.

123

Ibid.

124

Ibid,, Book 5, Section 14"13.

125

The Civil Code of the Philippines, Article 115.

126

The New Civil Code of the Philippines, Article 146.

127

Ibid ., Article 143.

·• 128 The Civil Code of the Republic of China. Article 1004 . 129

Ibid . , Article 1005.

130

Ibid., Article 1016 .

39

Separate property, that is , articles which are b. exclusively intended for the personal use of the husband or wife or are essential to the occupation of the husband or the wife, gifts acquired by the spouse which the donor has designated to be separate property, remunerations which the wife·acquires by her labour, or property agreed by husband and wife to be so regarded.l31 Contributed property, that is, that part of the c. union property which belonged to the wife at the time of marriage as well as that which she acquires by inheritance or other gratuitous title during the continuance of the marriage constitutes her contributed property and remains in her ownership.l32 Similarly in the Philippines, the husband is the administrator of the union property but he cannot dispose of the wife's contributed property without her consent.l33 The three contractual regimes are, namely, community of property regime, unity of property regime and separation of property regime. According to the community of property regime , with the exception of separate property, all the property and income of the husband and wife constitute common property to be owned by them in common, and neither of the two can dispose of his or her share of the common property.l34 The husband is the manager of the pro~erty and the costs are borne out of the common property. 35 Either of the spouses must have the consent of the other for disposing of the common property.l36 By unity of property regime, the husband and wife agree by contract to fix a valuation on the wife's property other than her separate property, and to transfer its ownership to the husband, while the wife acquires the claim to recover the

131

The Civil Code of the Republic of China, Articles 1013 and 1015.

132

Ibid . , Article 1017.

133

Ibid., Articles 1018 and 1020.

134

Ibid., Article 1031.

135

Ibid. • Article 1032.

136

Ibid., Article 1033.

40

137 The Separation of Property reg~me value so fixed. specifies that the husband and the wife each retain the ownership and management of, and the right to use and collect fruits from, his or her property.l38 Where the wife hands over the management of her property to the husband, it is presumed that he has the right to take the income from the property towards defraying the living e xpenses of the household . The wife has the right to take back at any time the management mentioned.l39 In Malaysia , ac c o r ding to the Married Women Ordinancer l40 which is applied to both Muslims and non-Muslims, a married woman is capable of acquiring , holding and d~sposing of any property in all respects as if she were unmarried. The original rationale for giving the management right to the husband is possibly based on the fact that when these laws were enacted the majority of women were not educated and were still primarily confined to the home . It was often argued that it was for the protection of women that the husband was made the administrator. But this argument is hardly applicable today when a large number of women are educated and economically and socially active. They certainly do not need such protection in the form of discrimination. Legal Rights of Married Women "A girl ' s is her father ' s property and a wife her husband's . " It may be an exaggeration to describe a female's plight in such a fashion but certainly this is not a statement without some truth. After all, submissiveness , unquestioning obedience are female virtues whereas decisiveness, aggressiveness, single-minded purpose are associated more with males . This is a social fact which is sometimes legally backed. There are already enough evidence in the previous section regarding a girl's

137 The Civil Code of the Republic of Ch1na , Article 1042 , 138

Ibid., Articie 1044.

139

Ibid . , Article 1045 .

140 Married Women Ordinance , 1957 (No . 36 of 1957) Sections 4-9 .

41

subordinate legal position in her father's household. As to her subordinate legal status as wife the evidence is far In all these four countries, the husband may from absent . fix the residence for the family and the wife has to reside with him there. However, it should be noted that there are numerous reforms in Philippines and Malaysia which have eradicated some of the most outstanding discriminatory practices against the married woman. For example, a married woman in Malaysia and the Philippines can now own property and enter into contracts in her own name . l41 A Malaysian woman who is married can also sue and be sued in her own narne . l42 But a married woman in the Philippines still cannot sue and be sued in her own name. The husbands involvement is required in any court suit by or a gainst the wife. There is no such corresponding requirements if the husband is the party to a suit.l43 A Filipino wife also may n ot exercise her professional calling or engage in any economic activity if her ~usband objects to it on valid grounds and if the husband's income is sufficient for the family expenditure without the wife ' s contribution.l44 The law, in other words, does not view the wife as an equal partner in a marriage. She is at most only the husband's helpmate. More restrictive still is the ruling against a wife accepting gifts without her husband's consent unless the gifts are from descendants, ascendats, parents-in-law and collateral relatives within the fourth civil degree.l45 Although in practice a wife may not have to ask her husband's permission to exercise her profession or to accept gifts from people other than relatives within the fourth civil degree, these laws give the husband t.he legal right to do so, if he so wishes. Moreover, such laws

141

See section on Property Rights.

142

Ahmad Ibrahim, The Status of MUsLim Women in MaLays ia~ Singapore and Brunei (Singapore: Malayan Law Journal Ltd., 1965), p . 23.

143

Commission on the Status of Women, The RoLe of Women in t he (Manila, 1975), p . 14.

PhiLippin~s

144

Civil Code of the Philippines, Article 117.

145

Irene Cortes , Women's Rights U:nekr the 19?3 Constir;ution, Professorial Chair Lec~ures Monograph No . 10 (Quezon City: University of the Philipp i nes Press, 1975), p . 14 .

42

are emphatic statements of the husband's superior position , Similarly, the contract of marriage confers a new status on Thai women. A married women cannot set up a trade or business or engage in a profession without her husband's consent unless the profession or business is the one she was engaged in before marriage.l46 Also, a married woman cannot apply for a pass~ort to go abroad without the consent of her husband.l47 The married Muslim woman in Malaysia may not have to contend with the above restrictions like her sisters in the Philippines and Thailand; she however has other problems to contend with . A Muslim woman is not entitled to maintenance by her husband by virtue of the contract of marriage . · Rather she is entitled to maintenance only if she subj.e cts herself to the husband's lawful wishes and commands . If she fails to obey such commands she is said to be nusus ,l48 (nushuz) an offence which is punishable by fine or imprisonment . The requirement to be submitted to the husband's control with respect to her place of residence and general behaviour is even applicable to a divorced woman if she were to be eligible for maintenance duri ng the period of eddah .l49 That the law does not demand " good behaviour" from the husband emphasizes the fact that a woman is essentially first her father's property and subseqeuntly her husband's on marriage.

146

The Civil and Commercial Code of Thailand, Book 5, Section 1456 .

147

Wimolsiri Jamnarnwej 9 "The Status of Women in Civil Law," in Sanya Dh.armasakti and Wimolsiri Jamnarnwej, Status of Women in Thailand (Bangkok: Women Lawyers Association of Thailand, 1972)~ p. 38 .

148

A woman is liable to be nusus, if (a) she withholds favours from him without good cause; (b) if she l eaves her house without h:is permission unless her life is threatened by her remaining in :it, for example, when the house is in danger of collapse or fire; and (c) if she refuses to move with him to another place of residence, even if it were to another country, unless she has a justifiable reason. See Ahmad Ibrahi m, Islamic Law i n Malaya (Singapore: Malaysian Soc1ological Research Institute Ltd . , 1965), p . 222 .

149

Ib1d . , p. 224.

(For eddah, see section on Divorce, p. 16).

43

In contrast, a married woman in Taiwan is not subjected to any of the restrictions that women in the She is entitled to all the rights she Phil~ppines are. was entitled to before marriage except the right to choose her domicile and possibly her right to manage her own property should she choose to do so.lSO The similarities between some of the legal rights of a minor in these two countries and those of a married woman are most striking. A married woman, as has been pointed out, has to live where her husband decides to in the same way that a minor's domicile is at the domicile of his/her legal guardian.lSl Also in Thailand a minor as well as a married woman cannot start a business without the consent of her husband in the former case and his/her legal guardian in the latter case.l52 Furthermore in the Philippines, a married woman cannot sue or be sued in the case of a minor. These are only a few examples of these laws which relegate married women to the status of minors. It is interesting that this inferior status in women is only applicable to married and not single women. Civil Rights Citizenship

In Malaysia, a woman married to a citizen can also become a citizen by registration if she fulfills certain residential and character qualifications. But no corresponding privilege is extended to a man married to a citizen.l53 Furthermore, children of a citizen can become citizens by registration. While a person under twenty-one (one of whose parents at least is or was at death a citizen) can become a citizen by registration,l54 a person under twenty-one born

1So Sea the section on Property Rights pertaining to

Taiwa~,

pp. 38- 40.

151

The Civil and Commercial Code of Thailand, Book I, Sections SO and 51 . The Civil Code of the Republic of China, Articles 21 and 1002.

152

The Commercial and Civil Code of Thailand, Book I, Section 27 .

153 Federal Con1titution of Malaysia, Article 15 (1). 154

Ibid,, Article 15 (2).

44

before October 1962 must have a citizen in October 1962 . 155 It acquisition of citizenship, the whether he be parent ~r spouse , than that of the female.

father who is or was a is c l ear that, in the citizenship of the male , carries greater weight

In the Philippines, however, under the Constitution of 1973, a Filipina can transmit her citizenship to her children who are thereby considered as natural-born citizens. Previously, citizenship was conveyed by the father and a Filipina could transmit his citizenship to her children under the condition that the children elect it upon age of maturity. Also, under the 1973 Constitution a Filipina does not lose her citizenship if she marries an alien unless she re~ounces that citizenship by her act or omission . l56 The Nationality Act 1960 of Thailand157 provides that an alien woman who marries a Thai citizen does not automatically acquire citizenship, but she may apply for 1t~ Similarly, the Nationality Act 1952158 provides that a Thai '"oman marrying an alien will not lose her Thai nationality unless by the la\'7 of the state of her husband. However, in both the Ph1lippines and Thailand , the husband of a citizen is not given the privilege of acquiring citizenship of the wife. In Taiwan, a woman who marries an alien retains her citizenship unless she denounces it.l59 A woman who marries a citizen becomes a citizen,l60 but a man who marries a citizen does not become one unless by naturalization. A woman does not transmit her citizenship to her children as a man does unless the father of the children is unknown or has no citizenship . l61 However , her children can become naturalized upon f~lfilling certain residence requirements.l62 155

Federal Constitution of Malaysia, Article 15 (3).

156

Irene R. Cor tes, op.cit . , pp . 10-11 .

157

Nationality Act (Thailand) No. 4, 1960, Section 8.

158

Nationality Act 1952 (Thailand) Section 13.

159

Executive Code of the Republic of China, ArticJe 10 .

160

Ibid., Article 2 ,

161

Ibid., Article 1.

162

Ibid . , Article 4 .

45

Clearly in all these countries, the assumption is still that a woman follows her husband. Thus it is natural for her to acquire her husband's citizenship. Also, by the same argument, children are expected to acquire the father's citizenship . This is obviously discriminatin g against women. Female citizens enjoy less privileges pertaining to citizenship of their family than male citizens . Suffrage

This is one of the few areas in law which accord men and women equality . What this equality amounts to in practice is of course a different question . Women in these four countriesl63 have the right to vote and to run for election when they reach the age of maturity . They gained this right in the 1930s . There is one special feature in the legislation regarding election in Taiwanl64 which warrants special For all elections, the number of women to be atten~ion . elected is fixed and measures pertaining thereto are prescribed by law setting a minimum quota for the number of women to he elected. This means that, in any election, a certain minimum number of women as prescribed by the law will be elected ensuring female representatio n . Empl o yment Rights

In the Philippines, the 1935 Constitution provided state shall afford protection to labour, especially the that to working women and minors . l65 The 1973 Constitution also provides that the state shall afford full protection to labour, promote full employment and equality in employment, ensure equal work opportunitie s regardless o~ sex, race or creed . l66 163

The Constitution of the Kingdom cf Thaila~d, Section 29; Irene Cortes, op.cit . , p. 9, The Constitution of the Republic of China, Article 134, and Federal Constitution of Malaysia, Article 15 .

164

The Constitution of the Republic of China, Article 134 .

165

The Constitution of the Philippines 1935, Article 14, Section 6.

166

Ib i d ., 1973, Article 2, Section 9.

46

The Labor Code of the Philippines provides that a pregnant woman, married or unmarried/ is entitled to maternity leave of two weeks before and four weeks after delivery at full pay based on her regular or average weekly wages up to the limit of the 'first three deliveries, miscarriages or compulsory abortions .l 67 Also women are not allowed to work with or without compensation between certain hours at night depending on the kind of work to be performed.l68 The employer must provide seats proper for women and permit them to use such seats when they are free from work and during working hours, provided the employees can perform th~t~ work i n such position without detriment to efficiency.l Also , the employer has to establish a nursery in the work place for the benefit of the working mother and her infant child.l70 The principle of equal pay for equal work for men and women is recognized.l71 Similarly, in Malaysia, no female labourer shall work in any industrial or agricultural undertaking between the hours of ten at night and five in the morning nor commence work for the day without hav~ng had a ~'riod of eleven consecutive hours free from such work. 2 No female labourers shall be employed in any underground working.l73 Maternity prot.ection and benefits are extended to female labourers .174 In Taiwan , according to the Factory Act, women and children between fourteen and sixteen years are now allowed to work in certain occupations, such as underground work and the manufacturing of explosives.l75 Women are prohibited

167

The Labor Code of the Philippines, Book 3, Article 131 .

168

Ibid., Book 2, Article 128 a-c.

169

Ibid., Book 3, Article 130 a .

170

Ibid., Article 130 c.

171

Ibid., Article 133 .

17~

Employment Ordinance 1955 (of Malaysia), Sectiqn 34 .

173

Ibid . , Section 35.

174

Ibid. , Part 35.

175 Factory Act 1932 (of the Republic of China) Article 7.

47 from work between ten at night and six in the morning.l76 Women and men should have equal pay for equal work.l77 Also maternity leave of eight weeks has to be granted by the employer to pregnant employees with full pay for those who have been in service for at least six months and half pay for those who have been in service less than six months . 178 In Thailand, every person enjoys freedom of occupation.l79 Women are not allowed to be employed in certain types of work, such as underground work and the manufacturing of explosives and work which entails the lifting of heavy loads.l 80 Women may not work between midnight and six i n the morning unless the work is of such a nature that it has to be carried continuously or operated by shifts.l81 A pregnant woman is entitled to maternity leave of a period of sixty days with pay in addition to sick leave . A female worker who has been employed for six months or longer shall be entitled to receive wages during her leave at her current wage rate for a period not exceeding If she is still unable to work, she shall be thirty days . entitled to take leave without pay for another thirty days . l82 Also, women and men are entitled to equal pay for equal work.l83 It is clear that most of these laws regarding female employment aim at giving extra protection to women workers. However, contrary to the aim, these laws often become obstacles in women's path t o employment. These protective

Act 1932 (of the Republic of China) Arti cle 13.

176

Fa~tory

177

Ibid., Article 24 .

178

Ibid.

179

The Constitution of the Kingdom of Thailand, Section 28.

180 Editorial staff, Labour and Industry Magazine. "Announcement of tha Ministry of Interior concerning Labour Protection. B.E. 2512 (1972) ," in The Current Labour Protection and Labour Relation Laws, Section 14 . 181

Ibid. , Section 16.

182

Ibid., Section 18.

183

Ibid., Section 26.

48

measures place a burden on the employers and thereby increase the employers' reluctance to use women workers. Some of those protective measures are based on the assumption that the primary role of ~omen is that of mother and wife. These protective measures were introduced to protect these rights and needs of women but actually the only function pertaining to women alone which needs special protection is that of "birth-giving". Other roles of women, such as those of mother and housekeeper, can be as easily and competently performed by men if they are given adequate training. Besides, protection for "birth-giving", that is, maternity leave,should not be viewed as a privilege granted to women since childbearing is a social function, the burden of which should not rest solely on women.

49

IV:

LAW AND REALITY

It is evident that some of the laws in these four countries do not fully recognize the principle of equality between men and women. The majority of these laws discriminate against women though there are a few examples of laws which are discriminatory against men instead. Clearly, men and women are not fully equal before the law in these four countries though the principle of ·equality is recognized in their constitution. An interesting exercise would be to examine what laws which are equal for men and women amount to in practice . Only two aspects of the status of women will be focused on. We will only concentrate on assessing the gap between law and reality pertaining to the social, economic and political aspects of the status of women, that is, education , economic and political participation. Each of these four countries recognizes in their Constitution the equal right of women to education. Men and women are entitled to and are g iven, at least in theory, equal opportunities to education ~ However, Table 1 clearly shows that this this equal participation may be true on the level of primary education, it is certainly not so on the tertiary level, with the exception of Philippines. In all these four countries, the percentage of female enrolment in primary and secondary education reaches at least 44% and 41% bf the total enrolment in primary and secondary education respectively. In contrast, female enrolment in tertiary education is much lower than male enrolment . In Malaysia, the ratio of male to female university students is 3:1 and in Thailand and Taiwan, approximately 2:1. In the Philippines, however, the ratio is in favour of females . In 1971, 55% of the students enrolled at the universities were females and also 71% of the graduates were females. Moreover, it is interesting to note that for each of these countries except Malaysia, the proportion of women in school at different levels does not vary much; the proportion is consistently greater at the lower level of education. However, it is important to realize that in the interpretation of data in Table 1 it is assumed that the female /male population ratios in the different age groups pertaining to the different levels of education are the same .

50

Not only does enrolment in education differ between males and females, the choice of the field of study also differs . The most popular fields of studies for female students were humanities, education . and fine arts and the least popular one was natural sciences lsee Table 2) .184 This trend is consistent. with the traditionally held view that arts and humanities are suitable for females while natural sciences and engineering are in the domain of men. This trend is especially strong in Malaysia where hardly any female students took "masculine" courses, such as engineering and natural sciences. It is most disturbing to note that such traditional ideas and attitudes still prevail among young educated men and women today . In theory 1 the element of cho1.ce is present in the selection of the field of study. But it is in fact mainly induced by sex- biased socialization. and education which begin ve r y early in life both at home and in school - Clearly, this difference in the field of study leads to dissimilar employment opportunities wi th women being concentrated in a few fields in the labour force and absent in other fields . This further leads to dissimilarities in salaries, promotion opportunities and occupati onal hierarchies as we wil l see in a later section on employment opportunities of women . In summary, it is appa.ren'i:~ that thoug·h there is legal provision for equal education opportunitie s for women, in reality women have not been able to take full advantage of such educational opportunities, particularly at the tertiary leve l. Furthermore, primarily due to s oc i al and cultural attitudes, women ' s participation in education has been confined to a limited number of fields traditionally considered "female". The gap between law and reality is ev i dent here but unfortunately it is even more obvious and blatant in employment . As we have seen in the discussion of employment leg i slat i on in the few countries , women are accorded with equality in employment with men. In addition, there are numerous prot ective measures legislated for women workers, more str i ngent in one country than another . Perhaps in this field, the mere absence of discriminatory legislation (disregardi ng for the moment the question of protective

184

It i s realized that the categories in t he Table are very broad

and do not allow finer distinctions but it shoul d be noted that available data do not permit a further breakdown and thus the aggregation . This limitation can be applied to data presented in Tables 4- 6 .

51

measure) is insufficient: in view of the figures below as to inequality in employment, the law, to be truly fair to women, would have to include some affirmative protection of equality in hiring, promotion and so forth, such as recent legislation introduced in the United States and England. An interesting question here is what all these legislation amount to in real life. Even with the recognition of women's equal right to employment in these four countries , hardly more than one- third of the female population of ten years and over are in the labour forcel85 (see Table 3) . The female participation rate was lowest in Malaysia (20%) and highest in Thailand. Al s o, though women made up at least 50% of the population , in each of these countries, they only comprise one-third of the total labour force in the country. That women as compared to men are disadvantaged in employment is obvious . There are numerous factors which restrict women's employment opportunities. Some of the more important ones are lack of skills and training and cultural and traditional attitudes regarding female employment. Even if one is willing to accept onethird participation as a reasonable level of female participation in the labour force, one cannot help but notice the more obvious discrimination in the distribution of women workers in the various branches of industry and their occupational levels. Table 4 shows that the most dominant industry for women is agriculture, and as expected, only a small percentage of women participated in the not so "feminine" industries such as mining, quarrying, construction, transport and communications. In terms of occupations and professional levels, it is clear from Table 5 that there was only a small number of professional and technical workers and even a smaller number of administrators and executives among women workers. Most of the women workers were farmers and fisherfolks, production and related workers and service workers. A somewhat different pattern emerges when the distribution of women workers in different occupations is compared to In the Philippines and Thailand, that of male workers. there w~ re more female than male professional , technical and service workers while there were two male to every female professional in Malaysia and Taiwan. In all the four countries, women took a low profile in administrative and

185

In Taiwan, the one-third refers to one-third female population of fifteen years and over.

52

executive positions. All these suggest that women workers concentrate primarily in low status jobs which require low level skills. Clearly, in practice women are not given equal opportunities in employment. Only about one-third of the female population participate' in the labour force and their participation is restricted to a few industries and to low-level jobs. Not only are women underrepresented in high level decision-making occupations, they are even more underrepresented in elective public offices, though as was shown earlier the Constitution of each of these countries accords women with the right to vote and to run for elections. In the Philippines,l86 women numbered 6 out of 104 Representatives and 3 out of 24 Senators in 1968. Similarly in Malaysia,l87 there is only 1 Cabinet Minister, around 6 Senators and 11 Parliamentarians giving the ratio of 1 female Parliamentarian to every 730,000 female population as compared with the ratio of 1:30,000 in the male population. In Thailand,l88 7 out of the 219 Representatives of the National Assembly were females in 1971. In Taiwan, women seem to participate more actively in politics. Out of 1,446 representatives of the National Assembly, 301 are women and 82 out of the 773 members of Legislative Yuan are women.l89 Furthermore, their participation is also relatively high even in the provincial and country level . In 1962, 10% and in 1972, 16% of the Representatives of the County Assembly and Provincial Assembly respectively were women.l90

186

Commiss ion on the Status of Women, The RoLe of Women in the

PhiLippines (Manila, 1975), p. 9. 187

Fatima Hamidon, "The Status, Roles and Achievements of Women in Malaysia," paper presented at the ASAIHL Seminar-Workshop on the Role of Women in Development: Implications for Higher Education in Southeast Asia, 16-22 December 1975, Manila, p. 12.

188

Wimolsiri Jamnarnwej, op . cit., p. 35, footnote 1.

189

Albert R. O'Hara, "The Position of Women in Modern China," Jour-naL

of China, Inauguration Issue, 1971 :

61-68.

··

190 Hsueh Li-ming, "A Study of Women's Participation in Politics_ in Taiwan," M. A. thesis, National Cheng-Chi University (Taiwan), 19 7 3. pp • 68' 7 6 .

53

Clearly ~he facts and figures presented here demonstrate that (despite the fact that there are legal provisions in these four countries ensuring female equality in education, employment and politics) there still remains in practice, unequal treatment of women. This gap between law and reality is primarily based on traditional attitudes toward sex-roles and the inferior status of women. It is thus apparent that the provision of equality in the law alone is not sufficient to ensure equality of women in practice . A multifaceted approach incorporating laws and social and cultural factors seems necessary to achieve the goal of promoting equality between men and women ,

54

V:

CONCLUSION

It is apparent , on the basis of ~he examination of family laws and civil laws of these four countries, that men and women are not fully equal even before the law. There are many existing laws in these countries which discriminate against women. The degree of discrimination, however, varies from country to country and from law to law. Some countries have more discriminatory laws (such as Muslim laws in Malaysia) than others and some laws (such · as marriage and family law and property law) are more prejudiced than others. Not even in theory are women given equal opportunities in these laws. Although in these four countries polygamy is not legalized and mutual consent of both ·parties is required in marriage (ex cept for Muslim laws) women are still at a disadvantage in other aspects of marriage laws. The age of marriage is generally lower for women than men, and in the Philippines and Thailand, adultery is accepted as a legal cause for divorce only for men . Discrimination is even more serious in Muslim laws: the consent of the bride is not even required in marriage - instead, her father or her nearest male kin can give the consent. Also, the right to divorce rests solely with the husband. Moreover , in these four countries, discrimination against women is particularly blatant in laws regarding parental authority. Descent is normally traced through the male line apd laws are partial to the father. In these countries, either the father has first priority in claiming guardianship over the child and property (as in Malaysia and Thailand) or both parents jointly exercise parental authority but, in case of disagreement , the father's decision prevails (as in Taiwan and the Philippines) Furthermore, in the Philippines and Malaysia, the mother loses her authority and control over her children when she remarries but the father is not so penalized when he remarries. With the exception of Muslim laws, there is no inequality of treatment of men and women i~ inheritance laws. But , in terms of property rights , the husband is generally given the power to manage and administer conjugal property while the wife is given management of the household .

55

As compared to single women, married women in the Philippines and Thailand suffer greater inequality in laws . In the Philippines, a married woman cannot sue or be sued in her own name, cannot exercise her professional calling if her husband objects on valid grounds and also cannot accept gifts, other than that from her relations, without the husband's consent. Similarly, in Thailand, a married woman cannot apply for a passport or start a business without her husband's consent . Even with regard to the ~ssue of citizenship in these four countries, women generally enjoy less privileges than men . A woman married to a citizen can become a citizen but no corresponding privilege is extended to a man married to a citizen. In addition, citizenship is not generally transmitted by a woman to he r children. Only recently in the Ph~lippines and Malaysia was provision made for a woman to transmit her citizenship to her children. In both Taiwan and Thailand, a woman st~ll cannot transmit her citizenship to her children under normal circumstances . The basic assumption of these laws is that the primary role of women is ~hat of wife and mother and that the husband is head of the household. Additionally, it is assumed that women are inferior to men , It is obvious that these assumptions can be easily challenged, particularly, in the context of modern society where women have played active and importan~ roles outside the horne. Moreover, even for laws which do not discriminate against women, there is often a gap with reality . In theory, women are given equal opportun~ties in education, employment and politics and the equal right to vote, but in practice they are n ot able to take full advantage of their opportunities primarily due to traditional and social attitudes towards their status and role . Though it is not the inten~ of t his paper to make recommendations for amendments of some of these laws , we wish to put forth one guiding principle. This is that legal provisions should not be based on sex alone and whatever privileges and responsibilities extended to men should also be extended to women .

56

Table 1:

Percent Distribution of Enrolment of Female Students at Different Levels of Education in the Four Countries

China (Republic of) 1973

Malaysia 1970

Philippines 1971

Thailand 1970

Primary school

49

48

51

44

Secondary school Technical stream Commercial stream

43 45 69

41

53

43

** **

** **

** **

Universities

42

30

55

42 (graduates in 1968)

** Data not available either because of inaccessibility or because

there is no such category of schools in that particular country.

Source:

Table 2:

Official publications of these four countries.

Percent Distribution of Enrolment of Female Students in Various Fields of Study in the Four Countries

China (Republic of) 1973 Humanities, education, fine arts Law, social sciences Natural sciences Engineering, medical sciences, agriculture Not specified

**

** ** **

Malaysia 1969

Philippines 1968

Thailand 1970

69 19

57 28

6

4

43 34 5

** **

6

10

18

0

0

0

**

100

99

100

Information not available. Note: Percentages do not sum up to 100 due to rounding. Source: BuZZetin of UNESCO Regionat Office for Eduoation in Asia, Vol , VII , No. 1, 1972, Table 2.

57

Tab l e 3 :

Femal e Participation in tha Labour Force in t he Four Countries

China (Republ ic of) 19 70 Participation rate % of tot al femal e 34 . 40 populat ion % of total l abour force ** ** % of total employed

19 7

Philippines 1973

18.16 31.41

33.10 33.20 33 .05

Mala~sia

**

Thailand 1968

42.16 39.81 39.86

** Data not availabl e . Source: Official publicati ons of the four countries. Table 4 :

Percent Dis t ribution of Female Workers in the Various l ndustries i n t he Four Countries

China (Republic of) 1970 Ag riculture, f i sh i ng, hunting , fore stry Mining & quarrying Manufacturing Utilities Construction Co-.rce Transport & coaaunications Financial, COIIIDunity, social & personal services Not adequately defined

35

Malai:sia 1967

Phili22ines 1973

52 3 9 1 3

39

Thailand 1968++

7

0

11

13 1 0 19

18 0 2 4

2

4

0

1

19 0

18 0

29 1

38 0

100

101

102

100

28 l 15

++ The figure• are baaed on data on municipal areas only. No te : Percentaaes do not sum up to 100 due to rounding. Sour ce: Official publications of t h e four countrie s.

58

Table 5 :

Percen t Dis t ribut ion of Femal e Wor ke r s in t he Various Oc,cupat ions in the Four Coun tries

China (Re2ublic of) 1972

Mal axs i a 1967

Phili22ines 1973

5

5

9

9

Administrative, executive & management

1

0

1

1

Clerical

9

3

5

6

Sales

13

7

17

39

Agricultural, fishing & forestry

35

65

39

7

*

0

0

0

9

10

17

17

28tlr

9

12

18

Mining, quarrying

0

1

0

0

Others

0

0

0

2

100

100

100

99

Professional technical

&

Transport & communications Services Craftsmen, prod~ction & other workers

++

Thai l and 1968++

The figures are based on data on municipal ar eas only . figure includes (a) transport and commun icat ion workers, and * The (b) craftsmen, production and other workers . Note : Percentages do not sum up to 100 due t o r ounding. Source: Official publications of the four countri es.

59

Table 6:

Percentage of Female Workers in Each of the Occupations in the Four Countries

China (Republic of) Malaysia 1972 1970 Professional technical

Philippines 1973

Thailand 1968++

&

33

35

59

54

Adai.nie trati ve, executive & managerial

14

4

22

15

Clerical

28

26

46

33

Sale&

27

18

58

52

Aaricultural, fiehina & foreatry

37

38

23

42

2

2

Trceport & co..unications

*

Services

34

41

68

54

CraftaMn, production & other workers

30*

18

37

33

0

0

7

0

Minina, quarrying

The figure• are baaed on data on municipal areas only. The figure include• workers in (a) transport and communications. and (b) craftsmen, production and other workers. Source: Official publication• of the four countries. ++

*

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Ahmad Ibrahim . "The Status of Women in Family Law i n Malaysia and Brunei." In Matay Law Rev i ew, Vol. 7 (1), 1965: 56. Ahmad Ibrahim. "The Status of Women in Family Law in Malaysia, Singapore and Brunei." Ma Lay Law Rev i ew , Vol. 8 (2), 1966: 233. Biaalputra Duangduem. "The Status, Roles and Achievements of Women in Thailand." Paper presented at the ASAIHL Seminar-Workshop on the Role of Women in Development : Implications for Higher Education in Southeast Asia, 16-22 December 1975, Manila. Buxbaum, David c., ed. "Customary Law and the Formal Legal Inatitutions." In Fami ly Law and Cust omary Law in As i a : A Co ntemporary Legal PerspBoti ve. The Hague: Martin us Nijhoff, 1968, PP• 118-119. Commission on the Status of Women. The Ro l e of Women in th e PhiLi ppine s . Manila : The Commission, 1975. Cortes, Irene R. Women's Ri ght UndBr th e 19 ?3 Con st-i tution . Professorial Chair Lectures Monograph No. 10. Quezon City : University of the Philippines Press , 1975. Dickinson, Pramnan. "My Life History in Thailand." In Barbara E. Ward, ed., WomBn i n NBW As i a . Paris: UNESCO, 1963, PP• 452-461. Fatima Hamidon. "The Status, Roles and Achievements o f Women in Malaysia." Paper presented at the ASAIHL Seminar-Workshop on the Role of Women in Development: Implications for Higher Education in Southeast Asia, 16-22 December 1975, Manila. Fawcett, Welcome . "Thailand." In Luke T. Lee and Arthur Larson, ads., Po pulat io n and Law. London: Rule of Law Press, 1971.

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CuZtu~aZ

Among the

Mino~ities .

Ea~Ly

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Manila:

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Nakpil, Carmen Guerrero. "Maria Clara." In her Woma n Enough and Othe~ Essays . Quezon City: Vibal Publishin~ House, 1973, pp. 29-33 . "The Filipino Woman." In her Essays . Quezon City: Vibal Publishing House, 1973, pp. 8-9 .

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Woman Enough and

O' Har a , Albert R. Jou~nal

Othe~

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61-68. Razman , M.A.

Magazine ,

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In Asia

Sanya Dharmasakti and Wimolsiri Jamnarnwez . Status of Women i n ThaiLand. Bangkok: Women Lawyers Association of Thailand, 1972. "Men and Women in Malay Society." In Swift , Michael. Barbara E. Ward, ed., Women in New As i a. Paris: UNESCO , 1963. "The Status of Women in Civil Law . " Wimolsiri Jamnarnwej. In Sanya Dharmasakti and Wimolsiri J amnarnwej, St a t us of Women in Thailand . Bangkok: Women Lawyers ~ssociation of Thailand, 1972. Law and Ordin ance Malaysia Emp loyment Ordinance, 1955 Fede ral Constitution of Ma laysia Guardianship of Infants Acts, No. 13, 1961 I nheritance (Family Provision) , 1971 ~ aw R~ form (Marriage and . Divorce) Act, 1975

63

Philippines Constitution of the Philippines, 1935 Constitution of the Philippines, 1973 Labor Code of the Philippines, Book 3 New Civil Code of the Philippines, 1973

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Labour Protection. B.E. 2512, 1972 . " In The Current Labour Protection and Labour Relation Laws.

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Betty Jamie Chung and Ng Shui Meng , The Status of Women i n Law: A Comparison of Four Asian Countries , 1977, 63pp . S$6.00

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11IE AUTHORS Dr. Betty Jamie Olung is currently Community Research Officer of the Community Research Unit within the Community Relations Department of the lodependent Commission Against Corruption in Hong Kong. Between October 1974 and March 1976 she was Research Officer at ISEAS. Before then 'S he was Raearcb specialist of the Social Research Center of the Olinese University of Hoog Kong (1970-72) and FeUow at the Ea'St West Population Institute, East-West Center (1973-74). She obtained her doctorate in Psychology from the University of Victoria (Canada) in 1972. She has written several research papers on the ltatus of women, fertility and the value of children. Ms. Ng Shui Meng is a Research Officer at ISEAS. She is presently reading for ber Ph.D. in Sociology at the East-West Center, Hawaii. She has contributed twice lO the Institute's Field Report Series and to Soulhm.st Asian Affairs. the ID&tituae's annual review.