Articles & Judgments Gender Issues Developing the doctrine of equality - Sameness and Differences by Zarizana Abdul Aziz 
| Developing the doctrine of equality - Sameness and Differences by Zarizana Abdul Aziz |
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| Thursday, 17 November 2005 05:00pm | |
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DEVELOPING THE DOCTRINE OF EQUALITY – SAMENESS AND DIFFERENCES ©Zarizana Abdul Aziz Women’s Human Rights One of the cornerstones of human rights is the theory that all persons are protected under the law. Implicit in this is the idea that each individual has inalienable and indivisible rights. Despite the Universal Declaration of Human Rights reaffirming fundamental human rights, the dignity and worth of the human person and the equal rights of men and women and proclaiming that everyone is entitled to all the rights and freedoms set forth in the Declaration, without distinction of any kind including sex[1], the early conventions of human rights paid no special attention to the disparity in rights enjoyed by men and women in their respective nation states; focusing instead on the treatment of citizens by their governments.Priority was attributed to civil and political rights, which was believed amongst others to be integral to democratic governance and a prosperous free market economy.[2] Gradually as the status of women was evaluated, what became apparent was that women’s vulnerability to having their rights violated are different; not that women are not susceptible to having their civil and political human rights abused but in that women are more vulnerable than men to having specific fundamental human rights violated. Taking up the human rights framework allowed for the description of women’s lives and reality through a gender lens. It elevates women’s rights as issues of human rights. Although a mere linguistic change, the reformulation of women’s rights as women’s human rights changed the perception of issues like violence against women such as rape, domestic violence and sexual harassment and recognised that discrimination is a result of social, cultural and religious norms which needs a global and integrated response[3]. Linking back to the idea of human rights being inalienable[4] also ensures that women’s human rights cannot be abdicated and states are unequivocally bound to protect and uphold such rights. Still, it was not until 1979 that a specific treaty on women’s human rights was adopted by the United Nations General Assembly. Known as the Convention on the Elimination of All Forms of Discrimination against Women (“the Convention”), States who ratify the Convention, commit themselves to undertake a series of measures to end discrimination against women in all forms, including:
Equality The Convention defines discrimination against women as "...any distinction, exclusion or restriction made on the basis of sex which has the effect or purpose of impairing or nullifying the recognition, enjoyment or exercise by women, irrespective of their marital status, on a basis of equality of men and women, of human rights and fundamental freedoms in the political, economic, social, cultural, civil or any other field." In addressing the issue of equality, the Convention addresses formal legal inequality by requiring equal treatment of men and women. However, if equal treatment yields disparate results, then the law should look at ensuring equality of opportunity and removing barriers to women’s advancement. Thirdly, the Convention requires equality of results[6]. Simplistically, equality is often premised on the fact that women are “like” men and therefore women and men are to be treated alike. This notion requires similarly situated persons to be treated alike. In order to determine whether gender discrimination had occurred, the law must discount gender or sex as a relevant factor. Comparison must be undertaken between the classes to determine the cause of different treatment (save and except the difference in gender / sex).
Inherent in the concept of gender neutral identity is the substantive way in which man has become the measure of all things and woman is measured in correspondence with man[8]. Thus such a concept has inherent problems where there exist dissimilarities which can then be used to overcome the concept. For example, the struggle for equal pay for women remained (and still continues to remain) elusive in a field of segregated labour market. In this market, women were accepted as a distinct class of workers justifying differentiation of task and remuneration[9]. The theory of like being treated alike is not the only basis on which to build a legal doctrine of equality. In certain areas (dealt with below) it has proven to be an unwieldy tool. Suffice to say for the time being that the legal doctrine, developed over arguments on discrimination and equality can be summarised as follows:-
The Non-interventionistState The idea of freedom of contract and the non-interventionist state forms the basis of many arguments against the State enforcing equality. Yet this argument is selective at best. Equality is the philosophy and custom in which a society regulates itself. It is a value system. The state had already sought to regulate its citizens by coding customs, values and morality into law[10]. Not only do intrusive legislations abound, the argument that law is neutral ignores the fact that lawmakers are products of their environment and therefore incorporated their latent perspectives and biases into both the common law and legislative law[11]. Key to this apparent neutrality is the concept of the division between public and private sphere. This denotes two kinds of division:-
Take for example the Married Women Act 1957 (Revised 1990). Section 4 of the Act enables a married woman to acquire and dispose property, rendering herself liable in contract and tort and to sue and be sued in her own name as if she were a femme sole. Section 9(2) of the Act provided (since substituted) that, “Except for protection or security of his or her property no husband or wife shall be entitled to sue the other for a tort”[12]. Apart from serving as an example of the law’s skewed priorities in enabling a spouse to sue for the protection of her property but not her person, this provision is also an example of the law drawing its justification from the public-private division. In prohibiting a spouse from suing for the security or protection of her person, the law gave itself licence to turn a blind eye to any abuse or violence occurring within the home. Thus, the law’s refusal to interfere in family relations can by no means be deemed neutral. By not intervening, the law legitimises the power relations between husbands and wives and allows for the continued perpetuation of the violation of a wife’s basic human rights, i.e. freedom from harm and violence. Applying the discourse of human rights, freedom from physical violence is a fundamental right which the State must actively promote and protect. It is universal inalienable and indivisible. It cannot be the subject of a contract (of marriage) nor can it be abdicated (even voluntarily). The Market Place and Freedom of Private Individuals The free market makes no allowances for unequal bargaining power. Industrialisation is also generally achieved on the backs of a large supply of low paid labour. Driven by freedom of contract the market is relentless in exploiting every opportunity for its own benefit. In the face of the oppression of workers, the State intervened to bring about protective legislation like maximum working hours and safety regulations[13]. Such intervention met with strong opposition from free marketers arguing that State neutrality demands that individual freedom and autonomy should prevail. Protective legislation, they argued, interfered with the freedom of individuals to choose what work to undertake. Ultimately however, the most effective arguments that won the day were economic arguments. Low priced labour, a United Kingdom government report concluded, was a great obstacle to improvement as “it discourages intervention and removes or prevents the growth of a great stimulus to progress and efficiency”. Therefore wages regulation, minimum standards of sanitation cleanliness and working hours are desirable[14]. Still, for the middle class, job segregation meant that certain professions were totally off limits to women[15]. While initially there was no formal bar to women’s participation save their inadequate education, in the twentieth century, the exclusion was based on marriage bars, automatic termination of employment on marriage or automatic termination on pregnancy. Although legislation was introduced to make it unlawful to disqualify a person on the grounds of sex or marriage, the efficacy of the Sex Disqualification (Removal) Act 1919was limited by its wide ranging exceptions. Thus women continued to be dismissed from employment upon marriage particularly as the Act lacked specific enforcement methods and the courts were reluctant to use their equitable powers of injunction and declaration to fill the gap.[16] Indeed teachers who attempted to use the legislation to overturn the marriage bar met with failure. The courts found the policy that “periodic temporary absences of married teachers” were “most inconvenient” to be quite reasonable. Adopting the opposite view, would according to the court “be pressing public policy to intolerable lengths”[17]. In another case, the court found the marriage bar to be reasonable because “the duty of a married woman was primarily to look after her domestic concerns, making it impossible to do so and act as an effective teacher at the same time”[18]. To say that women’s primary function revolves around domestic concerns and children is to ignore the custom of non-middle class women who had always worked. Maintaining such an argument today further ignores the increasing number of women in the public sphere of the market place. While discrimination on the grounds of marriage can be argued on the “like to be treated alike” principle, pregnancy poses a more complex issue. A pregnant woman is different from a man but how much significance should be placed on this difference? Discrimination prohibits unequal treatment between men and women but on the issue of pregnancy, there is no male comparator. There is no similarly situated male equivalent. So does this justify detrimental unequal treatment?[19] Faced with increasing numbers of challenges to the unequal treatment of pregnant women, the doctrine of equality was gradually developed to drop the quest for a male comparator and instead to focus on a pregnant woman’s absence from work and need for rest; recognising pregnancy as a health issue and comparing it to sickness. This early attempt is not satisfactory. Moreover, the comparison to a sick man will only provide protection where a sick man actually enjoys such protection. Holding to the argument that gender itself cannot be one of the relevant circumstances in deciding whether gender is the cause of unequal treatment[20], one can argue that detrimental treatment on the grounds of pregnancy contravenes the doctrine of equality because pregnancy is inextricable from gender. In the Canadian case of Brooks v Canada Safeway Ltd[21], the Supreme Court in finding that unequal treatment due to pregnancy offends the principle of equality said, “I venture to think that the response to that question by a non-legal person would be immediate and affirmative. In retrospect, one can only ask -- how could pregnancy discrimination be anything other than sex discrimination?... It is only women who bear children; no man can become pregnant. As I argued earlier, it is unfair to impose all of the costs of pregnancy upon one half of the population. It is difficult to conceive that distinctions or discriminations based upon pregnancy could ever be regarded as other than discrimination based upon sex, or that restrictive statutory conditions applicable only to pregnant women did not discriminate against them as women…. Thus, mere equality of application to similarly situated groups or individuals does not afford a realistic test for a violation of equality rights…. The denial of benefits was the result of her pregnancy. Since pregnancy is a condition to which only women are vulnerable, the denial should have been characterized as sexual discrimination. …discrimination against some women should not be treated any differently than discrimination against all women…. It may be unduly restrictive and somewhat artificial to argue that a distinction based on a characteristic such as pregnancy, which is shared only by some members of a group, is not discrimination against the whole group. …for discrimination which is aimed at or has its effect upon some people in a particular group as opposed to the whole of that group is not any the less discriminatory. This point was made by a board of inquiry under the former Human Rights Code, R.S.B.C. 1979, c. 186, in the case of Zarankin v Johnstone (1984), 5 C.H.R.R. D/2274, at p. D/2276, . . . wherein the board stated: . . . an employer who selects only some of his female employees for sexual harassment and leaves other female employees alone is discriminating by reason of sex because the harassment affects only one group adversely.” [emphasis mine] Put simply, a person can only say this contractual term is fair if he takes the view that if men were to become pregnant, they too would receive the same treatment. But whilst both men and women can become parents, the manner in which each becomes a parent is different. So in this instance we have a contractual term that looks at the differences between people and penalises one group of people because of that difference. A contractual term that provides that a person may be discriminated against is no less a discrimination because fundamental rights, being inalienable cannot be abdicated. Further, the Court also recognised that as women were the only ones to bear children it was unfair to impose all of the costs of pregnancy upon one half of the population. Becoming pregnant is a crucial social function and carries a social value. The reality is that women who become pregnant have to take time off work to deliver their babies. For a man, having a child is less complicated. No time off work and no medical attention is required. As the theory of equality requires that nobody be discriminated against because of his/her difference, it similarly recognises that unless provisions are made for pregnancy like childbirth benefits, women would suffer loss of income and extra expenditure. The fact that these benefits are not made available to men is not discriminatory. Because in this context, the theory of equality demands that we must treat men and women differently. Because of their differences. The equality argument as adopted by the Canadian Supreme Court meant that the doctrine of equality has evolved from the requirement that women be treated equally with men to the requirement that women not be subjected to detrimental treatment due to their gender, in this case, pregnancy. Taking forward this development, the European Court of Justice dismissed an employer’s argument that the dismissal of a pregnant employee was not due to her pregnancy but due to her inability to work during maternity leave. “In circumstances such as those of Mrs Webb, termination of a contract for an indefinite period on grounds of the woman’s pregnancy cannot be justified by the fact that she is prevented, on a purely temporary basis, from performing the work for which she has been engaged.”[22] The Convention (CEDAW) The Convention redresses discrimination. State parties are required to embody the principle of equality of men and women in their national constitutions or other appropriate legislations and to modify social and cultural patterns of conduct of men and women with a view to achieving the elimination of prejudices and customary and all other practices which are based on the idea of the inferiority or the superiority of either of the sexes or on stereotyped roles of men and women[23]. States fulfil this obligation through various legal measures.
Malaysia has also been signatory to the Convention since 1997. The Convention is one of a few human rights instruments that require reporting. The initial report ought to have been submitted two years after ratification and thereafter every four years. In July 2005, the government is due to present, for the first time, its long overdue reports. Specific Anti-Discrimination / Equality Legislation Legislation prohibiting gender / sex discrimination (whether specific to gender / sex or generally) and providing expeditious and effective redress creates the most easily accessible avenue for complainants. In many such legislations, commissions are also set up to better receive complaints and expeditiously provide remedies as justice demands it[24]. Whether or not specific legislations are formulated on the issue of discrimination and equality, most constitutions do integrate equality principles[25]. The Malaysian Federal Constitution in article 8(1) states, “All persons are equal before the law and entitled to the equal protection of the law” whilst article 8(2) states, “Except as expressly authorised by this Constitution, there shall be no discrimination against citizens on the ground only of religion, race, descent, place of birth or gender in any law or in the appointment to any office or employment under a public authority or in the administration of any law relating to the acquisition, holding or disposition of property or the establishing or carrying on of any trade, business, profession, vocation or employment”. Hartmann J in the Hong Kong case of Equal Opportunities Commission v Director of Education[26] further said,
Yet such guarantees within the Constitution have been held to merely recognise and not create fundamental rights. The House of Lords clarified as follows:,
The above case not only places high importance to fundamental rights and liberties, it underscores the fact that, being a central pillar around which is built the legal system, there is no necessity to even legislate on such rights. It arises from the well that is the common law. In fact, in the celebrated case of Vishaka & Ors v State of Rajashtan & Ors[28] the Indian Supreme Court went further. By drawing from the common law tradition, the court laid down norms to be observed at all workplaces. Said the Court,
Impact on Malaysian Law Implicit in our discussion today on globalising the legal profession is the emphasis that the legal profession must be aware of global legal development in their respective fields. In the field of human rights, jurisprudence including those from the United Kingdom, Hong Kong and India has led the way towards recognising the high importance, indeed the central pillar of the legal system, of promoting and protecting fundamental rights and liberties, a matter over which the court would exercise vigilance, even in the absence of domestic legislation. Such rights come from the well of common law. “The point that I am emphasising is that the common law goes so deep”, held Lord Cooke[32], and all the guarantees in constitutions and conventions merely recognise but not create such rights. In the recent case of Beatrice Fernandez v Sistem Penerbangan Malaysia & Anor[33] the Court of Appeal quoted with approval from “Comparative Constitutional Law” that, “constitutional law, as a branch of administrative law, either or both parties must be the State”. The Appellant, in that case complaint of being dismissed from employment as a stewardess when she became pregnant. The collective agreement with the airlines stipulated that she was to resign if she became pregnant, failing which the company could terminate her. The Appellant became pregnant and in 1991, after refusing to resign, was dismissed by the company. In the Court of Appeal, it was also held that the collective agreement is not discriminatory. Just as it cannot reasonably be argued that the provision of the law giving maternity leave only to women is discriminatory against men.[34] The Appellant then sought leave to appeal to the Federal Court. In dismissing the application, the Federal Court,
This case raised all the classic issues that had been canvassed by proponents of equality within and without parliament and the courts of law since the last century. Malaysian law, however, appears to have developed in a different direction. Taking both decisions together, the effect of this decision on Malaysian women cannot be over emphasised. It is now up to Parliament to propound and develop the prohibition against gender discrimination and the promotion and protection of equality. [1] Article 2 of the UN Universal Declaration Of Human Rights [2] E.g. the Covenant on Civil and Political Rights, the Covenant of Economic Social and Cultural Rights, Convention against Torture, Convention against Genocide. [3] See Conclusions and Recommendations from the report on Mexico by the Committee on the Elimination of Discrimination against Women under article 8 of the Optional Protocol to the Convention at para 287 . “… because what is involved is a structural situation and a social and cultural phenomena deeply rooted in the consciousness and customs of the population, it requires a global and integrated response, a strategy aimed at transforming existing sociocultural patterns, especially with regard to eradicating the notion that gender violence is inevitable. At http:/www.un.org/womenwatch/daw/cedaw/cedaw32/CEDAW-C-2005-OP.8-MEXICO.pdf [4] The first preamble to the Universal Declaration of Human Rights reads, “Whereas recognition of the inherent dignity and of the equal and inalienable rights of all members of the human family is the foundation of freedom, justice and peace in the world” [5] See also the website of the United Nations Division of Advancement of Women (DAW) which monitors and oversees the Convention - http://www.un.org/womenwatch/daw/cedaw/index.html [6] See Sandra Fredman, Beyond the Dichotomy of Formal and Substantive Equality : Towards a New definition of Equal Rights in Borefijn, Coomans, Goldschmidt, Holtmaat & Wellenswinkel (eds), Temporary Special Measures – Accelarating de facto Equality of Women under Article 4(1) UN Convention on the Elimination of All Forms of Discrimination against Women (Intersentia 2003) [7] Hon Hartmann J in the Hong Kong case of Equal Opportunities Commission v Director of Education [2001] 2 HKLRD 690 (HCAL15555/2000) at paras 80, 97 and 98 [8] Catherine MacKinnon, Feminism Unmodified (Harvard University Press, Cambridge 1987) at 34 [9] Development in this area was accelerated during the First World War when women workers engaged to do jobs of male workers drafted into the army, were employed on equal pay. However after the war, many women were removed from the workforce and equal pay was again ignored. Webb and Webb, Industrial Democracy (Longmans, 1897) as quoted in Fredman, Women and the Law (Oxford University Press, 1997) [10] See Allen, Law in the Making (Oxford University Press, 1958) Ch 1 : The relationship between law and ethics is problematic. Custom establish themselves because they correspond to the economic convenience of a powerful class. A large portion of the morality of a country emanates from its class interest. The weaker members accept these custom either because they are imposed by irresistible force or because they suit on the whole the general arrangements of society, which those in subordinate positions accept through vis inertia or ta least are powerless to repulse. Customs then develop into traditions which are stronger than law and remain unchallenged long after the reason for them has disappeared. [11] See Roberts v Hopwood [1925] AC 578, dicta of Lord Atkinson at 504 who held that the respondent council’s actions were ultra vires as it had exceeded the bounds of its legitimate power by allowing itself “to be guided …by some eccentric principles of socialist philanthropy, or by a feminist ambition to secure the equality of the sexes in the matter of wages in the world of labour”. [12] See also the case of Mohd. Habibullah Mahmood v Faridah bt. Dato Talib [1993] 1 CLJ 264. The Plaintiff alleged that she was battered by her husband and obtained an ex parte interim injunction. On appeal, the Supreme Court in striking out the statement of claim on the basis inter alia of Section 10 of the Married Women Act. “The rule that a married couple cannot sue each other in tort is derived from the Common Law of England where it was held that marital status made the husband and wife one person in the eye of the law and therefore a suit by one against the other is like suing oneself. This common law rule has since been removed by the (UK) Law Reform (Husband and Wife) Act 1962 and each of the parties to a marriage has the same right of action in tort against the other as if they were not married. But our law still stands”. This prohibition was removed to allow for the passing of the Domestic Violence Act 1994 (Act 521). Section 10(1) of the Domestic Violence Act 1994 now provides, “Where a victim of domestic violence suffers personal injuries or damage to property or financial loss as a result of the domestic violence, the court hearing a claim for compensation may award such compensation in respect of the injury or damage or loss as it deems just and reasonable”. [13] State intervention came in the form of initially, legislation to regulate child labour in the hope of ahieving protection for all workers. Due to the inherent tensions between the proponents of regulated labour and the free market, the resulting legislations in the 19th and early 20th century England were weak and fragmented with limited effect. [14] Select Committee on Home Work 1908 [15] See Bebb v Law Society [1914] 1 Ch. 286 wherein the Court held that women were disqualified at common law from becoming solicitors. [16] See Fredman, Women and the Law (Oxford University Press 1997) at 81 [17] Price vRhondda UDC [1923] 1 Ch 372 [18] Short vPoole [1926] Ch 26 [19] Early cases excluded pregnancy from the scope of anti-discrimination laws. See Turley v Allders Stores Ltd [1980] UCR 66 [20] Ibidn 7 [21] (1989) 1 SCR 1219 [22] Carole Louise Webb v EMO Air Cargo (UK); Ltd. (Social policy) [1994] EUECJ C-32/93 (14 July 1994) http://www.bailii.org/eu/cases/EUECJ/1994/C3293.html (accessed 15 Nov 2005) [23] “Women are often treated as unequal because they are alleged to be inferior to men in certain respects, and the consequences of their unequal treatment are seen as evidence of their inferiority”, Equality for Women (Cmnd. 5724, September 1974) as quoted in Equal Opportunities Commission v Director of Education HCAL1155/2000 (HK) [24] The Hong Kong Equal Opportunity Commission was set up in 1996 to implement the Sex Discrimination Ordinance 1995, the Disability Discrimination Ordinance 1997 and the Family Status Discrimination Ordinance 1997, the New South Wales Human Rights and Equal Opportunity Commission was set up to implement inter alia the Sex Discrimination Act 1984 (NSW), the UK Equal Opportunity Commission was set up to implement the Sex Discrimination Act 1975 (UK) and Equal Pay Act 1970. See also the Commission on Gender Equality set up under the South African Constitution. [25] Even the newly passed Iraqi Constitution in Article 14 states, “Iraqis are equal before the law without discrimination because of sex, ethnicity, nationality, origin, colour, religion, sect, belief, opinion or social or economic status”. Article 9 of the South African Constitution, often referred to as progressive in its promotion of equality, states, 9. (1) Everyone is equal before the law and has the right to equal protection and benefit of the law. (2) Equality includes the full and equal enjoyment of all rights and freedoms. To promote the achievement of equality, legislative and other measures designed to protect or advance persons, or categories of persons, disadvantaged by unfair discrimination may be taken. (3) The state may not unfairly discriminate directly or indirectly against anyone on one or more grounds, including race, gender, sex, pregnancy, marital status, ethnic or social origin, colour, sexual orientation, age, disability, religion, conscience, belief, culture, language and birth. [26] Ibid n10 [27] R v Secretary of State for the Home Department, ex parte Daly [2001] per Lord Cooke http://www.bailii.org/cgi-bin/markup.cgi?doc=/uk/cases/UKHL/2001/26.html&query=ex+parte+Daly&method=all (accessed on 15 Nov 2005) [28] (1997) 6 SCC 241 [29] 128 ALR 353 [30] Article 32(1) reads, “The right to move the Supreme Court by appropriate proceedings for the enforcement of the rights conferred by this Part is guaranteed.” [31] Article 141 reads, “The law declared by the Supreme Court shall be binding on all courts within the territory of India.” [32] Ibid n27 [33] [2004] 4 CLJ 403 [34] Id at 408 [35] [2005] 2 CLJ 713 at 720 and 721 *This paper was delivered at the 13th Malaysian Law Conference.
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