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Gender Discrimination in EMPLOYMENT –
How far Does Article 8 of the Federal Constitution guarantee gender equality?

©Jashpal Kaur Bhatt, Universiti Teknologi MARA, Malaysia, jashpal@salam.uitm.edu.my 

Abstract: 

This paper is in response to the recent Federal Court ruling in Beatrice A/P AT Fernandez v Sistem Penerbangan Malaysia & Ors^[1] (hereafter referred to as the Beatrice Fernandez case). The Federal Court refused to grant leave to appeal against the Court of Appeal decision that the applicant, an air stewardess with the national carrier, Sistem Penerbangan Malaysia or Malaysian Airlines System (MAS for short), had been rightly dismissed when she got pregnant in contravention of the collective agreement between the MAS employees union and MAS. The paper will examine the extent to which Article 8 of the Federal Constitution guarantees gender equality particularly from the perspective of employment  in the private sector, pregnancy and gender discrimination. The role and impact of the Convention on the Elimination of All Forms of Discrimination against Women or CEDAW, an international convention on women’s human rights on the Malaysian legal system will also be discussed.

The Decision

The applicant, a flight stewardess had 11 years of service with the national carrier MAS. The terms and conditions of service of the applicant were governed by a collective agreement between the MAS Employees Union or MASEU and MAS clause 2, paragraph 3 in particular, required an air stewardess to resign if she became pregnant or face termination if she became pregnant. When she became pregnant, she refused to resign and her services were thereby terminated accordingly^[2].

Amongst the issues of law raised by the applicant, was whether Article 8 of the Federal Constitution applied to the terms and conditions of the collective agreement  which were itself discriminatory in nature. It was noted that the right to equality under Article 8(1) was only afforded to an individual under the law - “all persons are equal before the law and entitled to equal protection of the law” and as a collective agreement^[3] is not “law” per se, the equality provision could not apply here. At most the Court of Appeal held, a collective agreement taken cognizance of by the Industrial Court was only enforceable as an award of the Industrial Court and binding on the parties to it. The Federal Court

agreed on this point. Thus the Federal Court ruled that it was not possible to expand the scope of Article 8 of the Federal Constitution to cover a collective agreement.

The Court of Appeal in upholding the High Court’s decision ruled that a constitutional safeguard such as the right to equality fell within the domain of public law and as such dealt only with “the contravention of individual rights by a public authority ie the State or any of its agencies”^[4]. The Federal Court concurred when it stated that “…Constitutional law does not extend its substantive or procedural provisions to infringements of an individual’s legal right by another individual.”^[5]  As the national carrier had not been proven to be “a government agency”, this fundamental liberty did not apply to the applicant’s case.

The Federal Court examined the construction of Article 8 under the Aristotelian classification doctrine of according equality only to persons in the same class and as such, “…recognises that all persons by nature, attainment, circumstances and the varying needs of different classes of persons often require separate treatment”^[6]. Thus equality under Article 8 of the Federal Constitution was judged on the basis of the separate but equal rights argument. Due to the fact that the applicant was employed as a Grade B category flight stewardess, her right to equality was measured against the rights of the other flight stewardesses in the same category and not against the administrative staff comprising ground staff and senior chief stewardesses or chief stewardesses “as they were not employed in the same category of work”^[7]. The Federal Court considered the job requirements and occupational benefits of the applicant against the special conditions applicable peculiarly to this occupation, which the first respondent, as the employer could impose. In particular, the court agreed with the employer that the airlines could not have pregnant stewardesses working on board a flying aircraft as it was not a conducive place to be working in.

Interestingly from the perspective of gender discrimination, the Court of Appeal noted that article 2(3) of the collective agreement could not be “…argued to be discriminatory just as it cannot reasonably be argued that …giving maternity leave only to women is discriminatory as against men…”^[8]. In the interest of justice, the Federal Court also considered the issue of whether it could be implied that the first respondent was required to provide ground work for their stewardesses upon a pregnancy. The court noted that  taking into account the 37 gestation period and the three month maternity leave post-delivery, “…the first respondent would almost perpetually be finding ground jobs of about 12 months long…an impracticable situation…”^[9] for its stewardesses who have become pregnant. The court found no evidence of such an implied term.

Further, the issue was raised whether article 2(3) of the collective agreement (which expressly requires resignation upon a pregnancy) violated Article 8(2) as it was discriminatory in nature. As article 8 (2) of the Federal Constitution was amended to include discrimination on the ground of gender only after the filing of the case, the Court of Appeal declared that it was not applicable here. The issue was not raised in the application for leave to appeal at the Federal Court.

The Federal Court however did not address the fourth ground of appeal on whether Article 5 of the Federal Constitution and the Employment Act 1955 guaranteed the applicant the right to work and the right to continued employment during her pregnancy.

The fifth issue and perhaps the most important from the perspective of gender discrimination, related to the applicability of the Convention on the Elimination of all forms of Discrimination Against Women or CEDAW, to the terms and conditions of the collective agreement. Unfortunately, the Federal Court did not examine the issue.

Comments on the Decision

The decision will have adverse repercussions on the recognition and advancement of women’s rights in Malaysia, particularly from the perspective of gender discrimination.

It is quite one thing to have a Constitutional right to equality for women and another, to make it into a social reality.

It is unfortunate that the Federal Court focused the issue of the applicability of the equality provision under article 8 of the Federal Constitution within the narrow context of the collective agreement as binding on all women who agreed to be employed as Grade B flight stewardesses with the first respondent only. The current interpretation of discrimination is reflected in the words of Augustine Paul JCA (now a Federal Court Judge) when he said that discrimination arises when “…one person or class of persons [is discriminated] against others similarly situated and denies to the former the privileges that is enjoyed by the latter…”^[10].  As the crux of the claim involved the issue of discrimination, two questions could have been posed here which fall within the court’s current interpretation of the equality provision under article 8:

a)         was there discrimination^[11] because the applicant had been treated differently and therefore less favourably or prejudicially than the other Grade B category flight stewardesses bound by the same collective agreement?

The answer would be a resounding yes, unless, the employer could show the reasonableness of the differential or detrimental treatment. The direct discrimination arose because the applicant was treated differently and less favourably or prejudicially due to her pregnancy – she had to resign or face dismissal. Therefore, one could only remain employed as a flight stewardess provided one did not become pregnant. In relation to the issue of reasonableness of the differential treatment, even though there were health and safety concerns about a pregnant stewardess on board a flight, the employer could have made reasonable adjustments to the workplace to accommodate the normal effects of a pregnancy. The employer could have given her ground duties or any other suitable position or at worst, leave during that period to ensure that her job security and seniority were not affected^[12].

Pregnant or potentially pregnant employees should be treated in a fair and equitable manner. Employers should not reduce an employee’s terms and conditions of employment or deny them any benefits or even dismiss, on the basis of pregnancy or potential pregnancy. That constitutes the grounds of discrimination. It is unfortunate for the Federal Court to have expressed the view that it is “impracticable” for an employer to give up to a year off to a pregnant flight stewardess from her usual duties and to convert her into a ground hostess. This is the nature of things employers have to take into consideration when employing women who have the capacity to reproduce. When an employer employs a female worker, her biological or reproductive role is part and parcel of her identity as a woman. The employee concerned should be given alternate work and it is up to the employer to ensure that it is done according to the circumstances of the case. Pregnancy is a normal healthy physical condition that many women experience and it is a human right, not a privilege for a woman to work while she is pregnant.^[13]

An illustration of this view can be seen in the case of an organization which refused to employ a woman as a trainee pilot because of the possible absences due to possible future pregnancy. Although the woman had been rated highly at the interview, the organization argued that it could not justify the investment in training if it was likely that the woman would have children later. The organization was found to have discriminated against the woman.^[14]

b)         was there discrimination as between the air stewards and stewardesses who were both subject to the same terms and conditions of service in the same collective agreement although classified differently?

The court only addressed its examination of discrimination between stewardesses in the same group ie female cabin brew. The court even differentiated between the other categories of female employees under the same collective agreement - the administrative staff ie the ground staff and senior chief stewardesses or chief stewardesses. What the Federal Court did not consider was the position of the male cabin crew. A differentiation then arose in the terms and conditions of service when air stewards who were also subject to the same collective agreement, were however not subject to the same requirements although in substance, both air stewards and stewardesses carry out the same duties on board an aircraft. They were both employed in the same category of work but classified separately within the same collective agreement.

It was then via this separate and differential classification of air stewards and stewardesses, that the employer could freely negotiate different and therefore, less favourable terms for its air stewardesses without infringing the current interpretation of the equality provision of article 8, under the classification doctrine. The case should have revolved around the issue of discrimination; not between the Grade B stewardesses and other categories of female staff but between the air stewards and stewardesses. The comparison made with the administrative staff consisting of the female ground staff and senior chief stewardesses or chief stewardesses was meaningless in the context of sex or gender discrimination. The discrimination arose from the differential treatment which resulted in detriment or prejudice to the employee concerned which could not be reasonably justified in the circumstances of the case.

Article 8 of the Federal Constitution guarantees equality before the law. The collective agreement was considered not be “law” per se^[15], which therefore barred the application of the equality provision in Article 8. However, every collective agreement in Malaysia is ultimately subject to the requirements of the labour laws such as the Employment Act (or EA) 1955 and the Industrial Relations Act 1967 (IRA). In particular, Section 14 (3) IRA states that “…any term or condition of employment contained in a collective agreement which is….in contravention of the provisions of any written law applicable to workmen covered by the said collective agreement, shall be void…”. S.14 (3) IRA requires the terms and conditions of a collective agreement not to violate any written law which must include the Federal Constitution. It can be argued that s.14 (3) IRA incorporates the right to equality under Article 8 even though it relates to the employment relationship under the private law domain. Unfortunately, we continue to strictly adhere to the private and public law dichotomy under the common law and as employment relationships are contractual in nature, they fall within the private law domain with the exception of public sector employees. Thus employment in the private sector falls outside the ambit of the application of constitutional rights. However, in Danaharta Urus Sdn Bhd v Kekatong Sdn Bhd [2004] 4 MLJ 259, it was reiterated that the common law right to be heard is not absolute and can be restricted by statute law – the reasoning being premised on the understanding that the common law which is applicable in Malaysia continues to operate except where no provision has been made. In the case of s.14(3) IRA, the provision expressly stipulates the application of any written law which applies to workmen in Malaysia. As ordinary citizens, surely all employees, irrespective of gender, are entitled to the right to a constitutional guarantee such as Article 8 in relation to employment rights and benefits.

It is worthwhile noting that in interpreting the IRA, in Kesatuan Kebangsaan Wartawan

Malaysia v Syarikat Pemandangan Sinar^[16], the Federal Court stated that statutory interpretation required the court to follow Parliamentary intent which could be deduced not only from a literal reading of the statute concerned but also from its social and economic context. The Federal Court chose to adopt a purposive approach to interpret the IRA which it declared was a ‘piece of social legislation whose primary aim is to promote social justice, industrial peace and harmony in the country’. Promoting social justice, which incorporates gender justice, requires adherence to the principal of equality of treatment before the law and non-discrimination particularly in the field of employment, whether in the public or private sectors.

The decision then effectively bars the right to equality to employees in the private sector unless state action is involved. This dichotomy between public law and private law rights which is a legacy of our colonial past, unfortunately continues to hold sway among the judiciary even though, we have our own written constitution. That is why when the Court of Appeal in Tan Teck Seng v Suruhanjaya Perkhidmatan Pendidikan & Anor [1996] 1 MLJ 261, declared that the right to life under Article 5 of the Federal Constitution also included the right to livelihood ie the right to be engaged in lawful and gainful employment, there was much anticipation in expanding the scope of constitutional rights^[17]. So, if the right to employment or livelihood, is an articulation of the right to life and personal liberty under Article 5 of the Federal Constitution, then such a right must be subject to the constitutional safeguard of equality of treatment as well. However, the Federal Court in Pihak Berkuasa Negeri Sabah v Sugumar Balakrishnan & Anor  [2002] 3 MLJ 72 disagreed and held that the words “life” and “personal liberty” of Article 5 should be read conjunctively and therefore did not to include the right to livelihood.  Interpretation of the Federal Constitution was equated with that of statutory interpretation as reflected by Suffian LP in Government of Malaysia & Ors v Loh Wai Kong [1979] 2 MLJ 33 where he stated at page 34 “…It is well settled that the meaning of words used in any portion of a statute and the same principle applies to a constitution depends on the context in which they are placed…”. That would perhaps explain why the Federal Court did not consider the “constitutionality” of the applicant’s employment rights.

It is pertinent at this point to note that the Federal Courtdid explore the issue of pregnancy and employment when it referred to the case of Sistem Penerbangan Malaysia v Yong Pau Chin[1997] 2 ILR 898 where an air stewardess on study leave for 18 months got pregnant and delivered a child in contravention of the collective agreement to which she was bound. She was summarily dismissed. The Industrial Court found  the termination of the claimant to be unreasonable and harsh having regard to the fact that the right to livelihood was a constitutional guarantee under Article 5, the right to life and as such, was a proprietary right of the individual. The dismissal was unreasonable having regard to the timing of the dismissal. A new collective agreement had been negotiated and taken cognizance of on 1^st September 1995 which reduced the seven year waiting qualification period to five years, which the claimant would have satisfied. The claimant had been dismissed on the 13^th September 1995. Further the court also considered the dismissal to have come after the fact of the delivery and therefore retrospective. The Industrial Court construed the words ‘on becoming pregnant’ under article 6 of the collective agreement which gave the right to summary dismissal by the employer, to refer to when the pregnancy was discovered and not after the delivery. The Industrial Court made this further observation of the situation:

“…The court will however leave the issue…of whether such CA provisions are repugnant to existing legislations, or contrary to law and therefore void - - open, since the court is unable to make a conclusion with reasonable certainty.” Thus the Beatrice Fernandez case was an excellent opportunity for the Federal Court to consider the repugnancy of such gender discriminatory practices by an employer.

The observation above clearly illustrates the urgent need by the judiciary to uphold gender justice in recognizing gender discrimination in employment relationships. Gender justice is based on the concept of equality of treatment  and non-discrimination. It is today widely accepted as an indicator of the quality of life of women and men. In the regulation of women’s rights, gender equality is sought to be achieved through equal treatment, equal opportunities, equal rights and non-discrimination. Gender discrimination exists when women are treated less favourably or suffer detrimental treatment at the workplace as a result of unreasonable differential treatment between men and women.

In the judgement of the Court of Appeal^[18], it was noted that it could not be argued that article 2(3) of the collective agreement was discriminatory just as it could not reasonably be argued that maternity leave only for women is discriminatory to men. Such a view is symptomatic of the lack of gender sensitivity in understanding and identification of gender discrimination, particularly in employment. As pointed out earlier, article 2(3) of the collective agreement was discriminatory as it treated female cabin crew less favourably within the same category of the collective agreement and when compared to the male cabin crew even though they both carried out the same duties on board. Female cabin crew, were discriminated against when they fell pregnant – they lost their jobs. The pregnancy therefore resulted in the detriment or prejudice suffered.  Further providing pregnancy or maternity leave only to women is not discriminatory to men because men do not conceive and give birth and therefore do not require pregnancy leave or maternity leave and benefits. Men do not suffer the entailing physical, medical, social and economic hardships associated with a pregnancy. Thus as women have the reproductive capacity, not granting maternity leave and benefits, much less dismissing, a pregnant employee should be considered discriminatory under the law. To overcome such interpretations of “discrimination” as the Court of Appeal’s, pregnancy, maternity, paternity and parental leave, have been made available to working men (where available) and women under labour legislation overseas, in recognition of the need to balance work and family responsibilities between men and women^[19].

The Federal Court also considered the application of section 37 (1) EA which is a mandatory provision guaranteeing the payment of maternity allowance during maternity leave and it was rightly held not to apply in the instant case. Maternity leave and benefits are available post-delivery of a baby while the real issue in this case was pregnancy related. However, the Federal Court’s observation that female employees in specialized occupations such as flight cabin crew should resign if they become pregnant “simply because they cannot be working till they deliver^[20]” is difficult to reconcile with the reality of most pregnant working women who continue to work until their delivery date, even those in “specialized” occupations. While a pregnant air stewardess should not work on board a flight due to health and safety risks, it is certainly feasible for the employer to reasonably accommodate the pregnancy in other ways such as suggested above – different duties, flexible working conditions and even paid or unpaid leave. In this way, the stewardess would not lose out on her job security nor her seniority, when she needs it most.  While the employer may raise concerns about the economic viability of such options, let us not forget that the situation is one, which should apply both ways – to the employee and employer concerned. An employer may specifically prefer to employ a female employee in certain “specialized” occupations and her biological or reproductive role is part and parcel of her identity as a woman and therefore, as an employee.

Next, the decision seriously undermines the government’s efforts in living up to its international obligations under international treaties and conventions such as CEDAW^[21] to which Malaysia is a signatory. CEDAW requires governments to take proactive steps to remove gender discrimination. This issue will be discussed later in the paper.

Pregnancy and Discrimination

In order to understand how gender discrimination works, we need to understand the legal basis of pregnancy rights and how any curtailment, refusal/denial or removal of those rights can constitute gender discrimination under the law.

Discrimination generally means treating someone differently and therefore less favouably on the basis of some characteristic(s) such as age, gender, race or religion etc. In turn discrimination can be either negative ie prohibited or it may be positive or affirmative ie giving protectionist rights. In many developed countries employment discrimination laws prevent discrimination on a variety of grounds such as sex, race, religion, age and physical ability, to name a few.

Sex or gender discrimination laws in particular, are aimed at removing barriers that women face in their effective participation in the workforce and workplace. Discriminatory practices are reflected in hiring, promotion, job assignment, termination, compensation and the various forms of harassment. Many of these laws affect both private and public employment, making no distinction between the two. There are a variety of pregnancy rights currently recognized by labour law but the list is ever evolving as employment rights and employment relationships change in this globalised era. These are therefore inclusive of, but not limited to, paid maternity leave, protection from dismissal upon pregnancy or refusal to hire and medical insurance during a pregnancy^[22]. The European Pregnancy Directive, which has created protection specifically designed for pregnant workers is a good example of these codified pregnancy rights^[23].

So, what is gender discrimination under the law? As S.Fredman notes, “Most anti-discrimination legislation follows a well-trodden path: those who are equal deserve equal treatment, and, conversely, those who are different are treated differently.”^[24]. This classification is the basis of defining equality and is called the classification doctrine.

The current understanding is that treating someone differently, in the context of gender discrimination must involve detrimental or less favourable treatment, which cannot be reasonably explained or justified under the circumstances. This view of gender discrimination does not fit within the current understanding of equality and discrimination in Article 8 of the Federal Constitution. Classification allows differential treatment and hence the conclusion of no discrimination if the differentiation can be explained on the grounds of “reasonableness” without considering the detriment or prejudice suffered. The focus is on the reasonableness of the state action or legislation in question or in the case of Beatrice Fernandez, of the employer concerned and not its effect on the employee. As we saw earlier, classification allows all air stewardesses to be considered within a particular group with no comparison made of air stewards. Thus a pregnant stewardess would be compared to other air stewardesses but not air stewards. In both comparisons, the discrimination is rampantly clear on the basis of the detriment suffered.

The next matter to arise is whether one must make a comparison between the sexes in order to accord equality to women.  Equality naturally requires an answer to the question - “Equality to what?”. In the context of most anti-discrimination laws such as Sex Discrimination legislation, the crucial comparison for sex discrimination to be proven is that a woman has been treated less favourably than a man would have been treated on the facts given. Thus equality for women is judged from the comparison with a male standard or norm. Feminist theories have in the past addressed the equality debate for women on the basis of equality of treatment between men and women. Thus we had the sameness and difference debates:

1. either women were to be accorded equality to men on the basis of their sameness to men ie that gender alone should not be sufficient ground for differentiation,
   or

2. that they were worthy of equal treatment to men although they were different from men and the law had to accommodate those differences.

The problem with both views for women is as stated by Catharine MacKinnon that, “man has become the measure of all things”^[25] - the male norm or standard for judging women’s right to equality. The difference argument is essentialist in nature assuming all women to “equally fertile and desirous of reproduction’ and thus allowed for protectionist legislation which had the adverse effect of excluding women from certain jobs. The sameness argument required women to perform like men in the workplace in order to succeed. However, it is with regards to women’s reproductive functions and pregnancy in particular, that the equality debate is unraveled. “…Clearly a woman is different from a man when she is pregnant, but how significant is this difference, and what legal consequences should follow from it?”^[26].

There is a discernable move today to acknowledge the social value of pregnancy and parenthood^[27].  Women have and continue to shoulder the burden of balancing work and family responsibilities. Conception, birth, child rearing and nurturing are women’s concerns, which have not been recognized nor accommodated adequately in the workplace. A working woman having to balance work and family responsibilities is put into the position where she has to either choose one over the other or juggle them like a latter-day superwoman. Thus being a good parent and a good employee have always been in conflict^[28]. As a result, there has been a greater recognition of the need for family-friendly policies and legislation in other jurisdictions. The Canadian Supreme Court in the case of Brooks v Canada Safeway Ltd.[29] noted that that as pregnancy and childbearing are fundamental social needs, it was discriminatory to place the burden on only one part of the population. In this case as only women could be refused employment on the grounds of pregnancy, such a refusal constituted direct discrimination on the grounds of sex.

In fact, specific pregnancy rights have been developed such as protection from dismissal or detrimental treatment, maternity leave, benefits and pay, health rights including time-off for antenatal care and protection from safety and health risks in the workplace during pregnancy. This rights approach as opposed to the equality treatment approach removes the need to find a male comparator and can exist independently of the need to establish a finding of equality.

One of the earliest examples of how these pregnancy rights work was seen in the Defrenne II decision (ECJ 1976) which basically provided the impetus for the evolvement of gender equality rules under Article 141 of the Treaty of Rome which essentially concerned equal pay protection. Gabrielle Defrenne was a flight attendant with Sabena, the Belgian national airlines. Until 1966, Sabena’s male flight attendants earned higher wages, were allowed to retire 15 years later and were entitled to a special pension plan, all benefits that their female counterparts failed to receive. The job responsibilities of the flight attendants were identical. In the European Court of Justice or ECJ’s second decision in 1976, the Court expanded the scope and purpose of Article 141 by creating enforceable rights in national courts regardless of national implementing legislation. Economic and social justice concerns were both addressed. Discriminatory national practices came under the purview now of the supranational powers of the ECJ. As a result there has been much litigation by women who experienced discrimination in terms of access to or dismissal from employment on the basis of pregnancy^[30].

The next interesting development was the Dekker case (ECJ 1990a)^[31]. Here the applicant for a job, Mrs. Dekker a Dutchwoman, was found to be the most qualified applicant at the job interview and was recommended for hiring by the hiring committee. As she was three months pregnant at the time, she was not given the job because the insurer refused to cover her maternity pay. Mrs.Dekker sued the company, VJV, claiming discrimination on the basis of her sex. The case was then submitted to the ECJ under Article 141 and the Equal Treatment Directive. The court held that discrimination in employment opportunities on the ground of pregnancy amounted to direct discrimination in violation of the directive. Here the ECJ considered the disadvantage to women rather than the comparable treatment with men as the basis for determining discrimination on the ground of pregnancy. Thus discrimination was proven if detrimental treatment due to the pregnancy could be shown. More pertinently to the Beatrice Fernandez case, was the Hertz case (ECJ1990b) which held that dismissal of a pregnant employee amounted to discrimination under EU law.

In the UK, the Sex Discrimination Act 1975 makes it unlawful for an employer to treat a woman less favourably on grounds of her sex or marital status than a man would have been treated. Further, under the Pregnancy Discrimination Act 1978 women affected by pregnancy, childbirth or related medical conditions are entitled to equal treatment with other persons who are similar in their ability or inability to work. As a result, the courts have taken the view that pregnancy discrimination is to be viewed from the comparison of the treatment of pregnant women with that of ill men. The courts had therefore drawn an analogy between pregnancy and illness.

The problem with such a test of the ill male comparator was seen in the case of Webb v EMO Air Cargo (UK) Ltd.[1992] All E.R.43  which examined the issue of when pregnancy was to be regarded as the determining factor for discriminatory treatment. Mrs.Webb who was pregnant had been employed to replace another pregnant employee. Her employer terminated her indefinite employment contract when it was discovered that she would be absent for the same period as the employee she was replacing. At the House of Lords the employer had argued that the appellant was not dismissed on account of her being pregnant but because the pregnancy made her unavailable for work at a critical period required by the employer. Using the ill male comparator test, the House of Lords declared that as a man due for a prostrate operation at the critical time would likewise have been dismissed, there was no lawful direct discrimination in this case. However, although the court ruled that she had no rights under UK law, she could have rights under EU law.

The case was thus referred to the ECJ(1994b) which found that dismissal of a pregnant worker was direct discrimination on grounds of sex. Here the court ruled that the need for special protection of pregnant workers was embodied in the Equal Treatment Directive and Pregnancy Directive 9, which had not come into force yet when the case arose. It is interesting to note that the court considered the defendant’s argument of hardship as the justification for the discriminatory treatment and not as the reason for dismissal. In Webb’s case the direct discrimination was not justifiable on grounds of hardship once it was proven^[32].

In India, the Air India v Nargesh Meerza^[33] case popularly known as the Air Hostess case provides a comparison as to how constitutional equality provisions are interpreted by the courts. Here, Air India International, a public sector organization was sued for gender discriminatory service rules. For instance, an air hostess who joined the service at 19 years could not marry until four years after completion of service. If she married after four years, she would lose her job on her first pregnancy. She had to retire at the age of 35 while her male counterparts could retire at 58. Article 14 of the Indian Constitution guarantees equality before the law and equal protection of the law. Sex discrimination is expressly forbidden under Articles 15(1), 16(2) and 325. With respect to the issue of the age of retirement, the Supreme Court held that the different ages of retirement for male and female staff was in violation of the right to equality. As a result, the Supreme Court ordered Air India to change the rules to provide a higher age of retirement for the air hostesses but did not to give them the same age of retirement. Interestingly enough, the court merely required the rule against the first pregnancy as a ground for dismissal to be changed to the third pregnancy. Such a decision merely delayed the inevitable – an air hostess faced dismissal upon a pregnancy. As noted by Sathe^[34], via its power to lay down subordinate rules of service, Air India was (indirectly) legislating the age of marriage and encouraging population control.^[35] Note that at the time, India was promoting family planning with three as the ideal number of children for each family. For this reason, the court suggested that a resignation should only be required upon the third pregnancy.

A corollary to this case was that of Air India Cabin Crew Association v Yeashawinee Merchant and others^[36] in which the Supreme Court ruled that there was nothing discriminatory if the airline insisted that women cabin crew members/air hostesses retired from flying at the age of 50 and opted to work as ground staff until 58 while their male counterparts could continue to work until 58. Air India maintained a differential categorization of male and female cabin crew even though they had the same service requirements. This was the same argument that was used in Nergesh Meerza’s case. Here, the court in its award noted that “Air India is a [part of the] travel industry. Pleasing appearance, manners and physical fitness are required for members of the crew of both sexes”. Thus this separate categorization between male and female cabin crew allowed the airline to argue that working conditions and remuneration could be different. This was contrary to the earlier High Court declaration that the lower retirement age for air hostesses was a discrimination based on Articles 15 and 16 of the Indian Constitution^[37]. However, due to public pressure, the Ministry of Civil Aviation ordered Air India which is the national carrier, to increase the retirement age for its air hostesses from 50 to 58 “in view of the exigencies of the circumstances and the interest of the operations of Air India”^[38]. This was perhaps in view of the fact that Air India was experiencing difficulties because of a shortage of air hostesses – to the extent that there were claimed to be flights without even a single air hostess on board.

While the Indian cases concerned the retirement age of female cabin crew, it is important to note the entrenched gender bias which shows how discrimination is not just direct but that it can manifest itself indirectly. It was argued on behalf of the airline that adopting gender-neutral terms of service and removing the differential categorization of the male and female crew, would not be beneficial to the women who due to their “falling physical appearance” and need to spend time with their families would prefer earlier retirement than men. Such an interpretation was surely discriminatory to the male air stewards, as they too may have preferred the option of early retirement due to their own failing physical appearance and desire to spend quality time with their own families. Forcing the women to retire earlier deprived them of the remuneration they would otherwise have received had they continued flying.

In Malaysia, MAS continues to operate on the basis of this difference categorization. Female cabin crew have to retire at age 40 (female flight supervisors retire at 45) while their male counterparts can retire at 55 years of age. MAS has also been said to be practicing indirect family planning as its current policy only allows maternity leave up to the second child. MAS is not a private company but a government linked company or GLC which must uphold its social responsibility as an example of good corporate social responsibility and good corporate governance. One way is to incorporate and practice gender equality^[39].

Constitutional Rights and Safeguards 

Article 8 (1) of the Federal Constitution states that, “all persons are equal before the law and entitled to the equal protection of the law”. As noted by the Federal Court, the doctrine of classification has been judiciously accepted as an integral part of the equal protection clause as explained by Tun Salleh Abbas LP in Malaysian Bar & Anor v Government of Malaysia [1987] 2 MLJ 165 at page 166:

“…The requirement for equal protection of the law does not mean that that all laws passed by a legislative must apply equally to all persons and that the laws so passed cannot create differences as to the persons whom they apply and the territorial limits within which they are in force…Since legislation can create the differences the question is whether the differences are constitutional…”.

The classification doctrine of equal but separate rights was explained by Suffian LP in Datuk Haji Harun Idris v Public Prosecutor [1977] 2 MLJ 155 on the basis of a two tier test to decide on the constitutionality of the classification:

“…the first question we should ask is, is the law discriminatory, and that the answer should then be—if the law is not discriminatory, it is good law, but if it is discriminatory, then because the prohibition of unequal treatment is not absolute but is either expressly allowed by the constitution or is allowed by judicial interpretation, we have to ask the further question, is it allowed? If it is, the law is good, and if it is not, the law is void.

In India discriminatory law is good law if it is based on ‘reasonable’ or ‘permissible’ classification…provided that:

1. the classification is founded on an intelligible differentia which distinguished persons that grouped together from other left out of the group; and

2. the differentia has a rational relation to the object sought to be achieved by the law in question…What is necessary is that there must be a nexus between the basis of classification and the object of the law in question.”^[40]

As a result of this judicial interpretation of the equality provision and legislative classification of the various sections of the population, the applicability of different laws to each section is legally sanctioned provided the classification did not fall within the prohibited grounds of discrimination under Article 8 (2) which includes gender^[41] and secondly, that the classification was rational and reasonable^[42].

Prior to the amendment of Article 8 (2) to include gender as a ground of discrimination, it was noted that any discrimination on the ground of gender would have been declared as being “unreasonable” by the courts under Article 8 (1)^[43]. Here unreasonableness in state action is determined according to the test of ‘Wednesbury unreasonableness” ie as “something so absurd that no reasonable or sensible person could have come to that decision”^[44]. The principle of reasonableness is an essential element of the equality provision in Article 8(1) and likened to a “brooding omnipresence”^[45].  In Ong Ah Chuan v Public Prosecutor [1981] 1 MLJ 64, it was confirmed that the reasonableness of the dissimilarity of treatment or classification or differentiation was to be judged against the social object of the law concerned. Unfortunately as we saw in the Beatrice Fernandez case, as long as differentiation between male and female staff is viewed from the perspective of the employer without considering the alternatives available to accommodate an employee’s reproductive role and ignoring the social objectives of legislation such as the IRA 1967, then any form of discrimination can be accepted as being reasonable in the circumstances.

Within the Malaysian context, it could be argued that any action by an employer that results in the dismissal of a female employee on the ground of her pregnancy, subjects her to unreasonable detrimental treatment and so should be declared discriminatory, in violation of her right to equality of treatment under Article 8(1). As only a woman can conceive, the ECJ ruling in Dekker thatthe pregnancy should be viewed from the perspective of the social and economic disadvantages or hardship that it can bring to a female employee as compared to a male employee, is particularly relevant in the Beatrice Fernandez case. Such a view would then remove the Court of Appeal’s earlier difficulty in viewing MAS’s terms and conditions as being discriminatory simply because under the classification doctrine, male air stewards did not have such comparable rights.

It is therefore clear that as a result of the current interpretation of Article 8(1), it is not a valuable provision from the perspective of gender equality to ensure fairness and equality of treatment. The current limitations in relation to the public and private law dichotomy, the classification doctrine, the non-identification of discriminatory practices (whether direct or indirect) and non-recognition of the right to livelihood as a constitutional right under Article 5 (the right to life and personal liberty), have damaged the efficacy of the Article 8 (1) right to equality where women are concerned.

Article 8(2) of the Federal Constitution was amended in 2001 to include gender as a ground of discrimination. This is how Article 8(2) now reads:

“Except as expressly authorized by this Constitution, there shall be no discrimination against citizens 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 establishment or carrying on of any trade, business, profession, vocation or employment.”

While there has been much euphoria over the inclusion of gender as a basis of discrimination in Article 8 (2), it has been noted^[46] that the following can be considered as limitations to its application:

• the words “ Except as expressly authorised” means that gender discrimination may be allowed under the express provisions of the Constitution. Thus if a conflict arises with other constitutional provisions, there is no guarantee that Article 8 (2) will stand. For example Article 8 (5) expressly excludes the application of Article 8 in relation to “personal law” and Article 11 guarantees freedom of religion. It has been argued that Article 11 interpreted together with Article 8 (5) means that Muslim personal laws remain unaffected by Article 8.

• The use of the words “ employment under a public authority” could limit the application of Article 8 (2) to public sector employment only. However, the fact that it then continues to bar discrimination in the establishment, carrying on of any trade, business, profession, vocation or employment may have left the door open for its application in the private sector. This brings to the fore the old arguments on the applicability of constitutional rights within the sphere of private law.

  CEDAW and its Applicability in Malaysia

In the globalised era we live in today, international law is increasingly becoming a tool for justice to ensure that governments live up to their legal obligations to their citizens under international laws, treaties and instruments. Thus while national constitutions spell out the fundamental rights, guarantees and freedoms of citizens, these provisions remain as glorified, abstract principles until and unless they are recognized and enforced by the relevant authorities as such. International law and treaties are a form of supranational governance over the laws of member states ensuring legal integration with internationally recognized standards and rights. One of the most powerful international rights to emerge is that of human rights. Women’s rights are human rights. It is interesting to note that when the Universal Declaration of Human Rights was adopted by the United Nations in 1948, it was a woman, Eleanor Roosevelt who chaired the Commission on Human Rights. Article 1 of the Declaration proclaims that “All human beings are born free and equal in dignity and rights”.

As a reflection of the Declaration, the Convention on the Elimination of All Forms of Discrimination Against Women or CEDAW^[47]was adopted by the General Assembly of the United Nations in 1979 and went into force in 1981. It is one of the six core human rights treaties and in fact the major UN treaty governing women’s rights. It seeks equality for women from the perspectives of equal opportunities, equal access and equality of results by favouring positive discrimination. Most importantly, via its due diligence requirement, it places a positive and legal obligation on governments to eliminate direct and indirect discrimination. Thus state parties are accountable for the actions of state and non-state actors also. The Optional Protocal or OP-CEDAW is an additional treaty and is designed as an enforcement mechanism for CEDAW via the communication and the inquiry procedures. Both CEDAW and OP-CEDAW are the only women specific international complaints mechanisms aimed at developing women’s rights at national and international levels in order to eliminate discrimination against women^[48].

Article 1 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 the basis of equality of men and women, of human rights and fundamental freedoms in the political, economical, social, cultural, civil or any other field”. Thus it incorporates both direct and indirect forms of discrimination. Article 11 expressly relates to women’s right to work, equal treatment at the workplace and the same employment opportunities as men. It prohibits dismissal on the grounds of pregnancy, in particular.

Malaysia as a signatory to CEDAW ratified it in 1995 but as ours is a dualist system^[49] in that ratification alone is not enough to domesticate the Convention. Two ways have been identified for incorporating CEDAW into our domestic laws. One way is through legislative measures which either expressly enact the convention or impliedly require domestic laws to be interpreted in accordance with the Convention. The second method involves the judiciary. Thus via judicial interpretation of legislation and particularly the Federal constitution, it is possible to incorporate the provisions of CEDAW into local law.

In this respect, there have been calls for judicial activism in interpreting fundamental rights in constitutions so as to expand their scope by incorporating human rights, particularly CEDAW. One of the most celebrated cases involving the use of CEDAW in assessing and interpreting discrimination against women was the case of Unity Dow v The Attorney General of Botswana (1991). A citizen of Botswana, Unity Dow was a lawyer married to a non-citizen, whose children had been denied citizenship under a provision of the Citizenship Act 1984 that conferred citizenship on a child born in Botswana only if "a) his father was a citizen of Botswana; or b) in the case of a person born out-of-wedlock, his mother was a citizen of Botswana." She claimed that this provision violated her right to equality under the Botswana Constitution and was discriminatory. The High Court agreed, holding that the provision infringed the right to liberty, the right not to be expelled from Botswana, the right not to be subjected to degrading treatment, and the right not to be discriminated against on the basis of sex. It concluded that the right to liberty had been infringed because the provision hampered a woman's free choice to marry a non-citizen and, in fact, undermined marriage and that the right not to be expelled from Botswana was infringed because, if the plaintiff's husband’s resident permit was not renewed she would be forced to leave Botswana if she desired to stay with her family. Although Botswana had yet to ratify CEDAW, Judge Martin Horowitz in the High Court accepted the plaintiff’s argument that discrimination against females and treating them less favourably than males, subjected women to degrading treatment, which under CEDAW is an offence against human dignity. This decision was subsequently upheld by the Botswana Court of Appeal and is a stirling example of the power of the courts in upholding and defending women’s right to equality in a constitutional framework.

From the Malaysian perspective, Dato’ Gopal Sri Ram, Court of Appeal Judge, proposed three principles which could be helpful in a paper on “Human Rights: Incorporating International Law into the Present System”^[50]. They are as follows:

1.         The court must adopt a broad and liberal approach when interpreting a written constitution in recognizing it as a ”living and organic” instrument capable of adapting to changing circumstances. This view was reflected by Raja Azlan Shah Ag. LP in Dato Menteri Othman bin Baginda & Anor v Dato Ombi Syed Alwi bin Syed Idrus[51].  Section 4(4) of the Human Rights Commission of Malaysia Act 1999, it was pointed out by his Lordship, gives scope for the application of international law as it states that “regard shall be had to the Universal Declaration of Human Rights 1948 to the extent that it is not inconsistent with the Federal Constitution”.

Although CEDAW is not specifically mentioned, it will be interesting to see if the judiciary would be willing to incorporate human rights treaties and conventions as part of domestic law. Todate, the case of Mohd. Ezam v Inspector General of Police [2002] 4 CLJ 309 by way of obiter dicta has shown little support for this approach. It has been suggested by his Lordship Dato’ Gopal Sri Ram that the reason for this has been due to counsel’s lack of proper articulation and research of arguments on the applicability of international law. Unfortunately, in the Beatrice Fernandez case, the applicability of CEDAW  was not commented upon by the Federal Court itself.

2.         Statutory interpretation should be differentiated from interpretation of the constitution. Suffice to say, the difference between statutory and constitutional interpretation is summed up in this observation, that a constitution is a mechanism under which laws are made while a statute declares what the law is to be^[52].

3.         Interpretation of the Articles of the Federal constitution as human rights. The fundamental liberties in Part II of the Federal constitution, which includes Article 8, are examples of the human rights. Dato’ Gopal Sri Ram calls for a “prismatic” approach when interpreting fundamental guarantees under the constitution. Each fundamental freedom houses a multitude of other rights. There is a “penumbra” under which other rights, which although have not been expressly articulated, yet nonetheless are “peripheral” rights coming under the umbrella of the one expressed right. For example the right to life and personal liberty was held by Suffian LP to include the right to freedom from unlawful arrest, the right to counsel upon arrest, the right to be released etc.^[53]

When viewed as human rights, his Lordship noted that judges are free to interpret the constitutional freedoms using international human rights instruments also, as external aids of interpretation. In fact, it has been recognized by judges internationally, that the courts can favour a construction of their domestic laws in accordance with their governments’ international obligations having ratified international treaties and conventions. His Lordship gives an illustration of this approach in various decisions around the world. For instance, in Australia, Mason CJ in Minister for Immigration and Ethnic Affairs v Teoh^[54] declared, Parliament prima facie intended to give effect to Australia’s obligations under international law.  In Vishaka v State of Rajasthan^[55] a group of NGOs successfully petitioned the Indian Supreme Court after a social worker had been gang raped and local officials refused to investigate the complaint. Like Malaysia, there were no laws expressly prohibiting sexual harassment. In his judgement, Verma CJI noted that international conventions and norms were to be read into the fundamental rights of the Constitution in the absence of enacted domestic law when there was no inconsistency between them. He maintained that it was now an accepted rule of judicial construction. In the U.K., Lord Woolf^[56] even went a step further and suggested that a citizen had the right to expect the Government to act domestically in accordance with the international treaty it had entered into. These judgements should spur local initiatives as decisions such as Beatrice Fernadez reflect on the inadequacies of the legal system to protect the human rights of Malaysian women in the employment sector. 

Conclusion

In the context of gender discrimination, the recognition and protection of women’s rights by the law remains vital. While the right to equality and non-discrimination is enshrined within the Federal constitution under Article 8 (1) and (2), its efficacy is called into question when women’s rights are not enforced as such due to the severe limitations that affect its interpretation.

There is always that divide between the written law and the reality of human existence. Our government has already shown its commitment over this issue and amended Article 8 (2) to include gender as a basis of discrimination. It is now up to the judiciary to show the way forward by interpreting and enforcing women’s right to equality. It can never be denied that all said and done, it is the judiciary that remains as the last bastion for the protection of the rights of the citizens. As Cardozo said “…the great tides and currents that engulf the rest of men do not turn aside and pass the judges by…”^[57].  So, unless the courts are willing to take up the challenge and advance the cause of gender justice by outlawing discriminatory laws, practices and policies by expanding the scope of the Federal Constitution, then the true value of these rights will remain as nothing more than the paper they are written on. Judicial activism and interpretation “…amplifies the attempt by the courts to ensure the relevancy of the constitution to best serve the society it has been created for^[58].” Further, Cherie Blair in her recent Sultan Azlan Shah Law Lecture^[59] reflected on the role of the judiciary in relation to human rights and noted that the task of the judiciary in reviewing state action was now set against the “benchmark of human rights”. Cases such as the recent A v Secretary of State for Home Department [2004] UKHL 56 are an educational forum as ‘…Judges are forced in their judgements to respond in a way that teaches citizens and governments about the ethical responsibilities of being in a true democracy committed to universal human rights standards…”

The other alternative is legislative intervention. As the Federal Court noted “…Unless and until the Employment Act 1955 is amended to expressly prohibit any term and condition of employment that requires flight stewardesses to resign upon becoming pregnant…” clauses such as the one in the Beatrice Fernandez case remain valid and enforceable. It is time to seriously consider drafting a Sex Discrimination Act and even a Pregnancy Discrimination Act more specifically, for all workers whether in the public or private sectors.

So, while de jure equality can be created by the law and constitutional reforms, it is the issue of substantive rights or de facto equality that lags behind. It all boils down to how far equality rights and gender-linked roles are compatible. Discrimination is the symptom not the disease^[60]. The Beatrice Fernandez case is a fine example of how easy it is for employers to get around the gender equality issue at the workplace even with a constitutional guarantee under article 8 requiring equality of treatment to women.  The message is clear to women in the private sector particularly^[61], that barring judicial activism in interpreting constitutional guarantees or legislative intervention or strong trade union support for women’s rights in relation to collective bargaining for better terms and conditions in their collective agreements, equality rights will not protect their gender-linked roles in society. This is why S. Fredman^[62] has noted that women remain segregated in the labour market and continue to earn proportionally less than men, notwithstanding the existence of equality laws which should have the effect of leveling the playing field.

[1] [2005] 3 MLJ 681.

[2] MAS policy at the time and todate refers to a resignation or dismissal upon a third pregnancy. Thus maternity benefits were and are allowed for up to two children only.

[3] A collective agreement (CA) is a written agreement made between an employer and a trade union acting on behalf of its members. In fact under s.17 (2) IRA  a CA is an implied term of contract between the workman and employer and so the terms and conditions of the individual contract of employment cannot derogate from ( not less than)  the terms and conditions of the CA. See the discussion on the effects of a collective agreement in V.Anantaraman, Malaysian Industrial Relations – Law and Practice, (1997) Universiti Putra Malaysia Press, pp 95 to 99.

[4] Para 5 p 469.

[5] Para 13 p 688. Private law covers relationships between individuals including the family, contractual relationships and employment which is based on the contract of employment.

[6] Para 18 p 689 of the Beatrice Fernandez case.

[7] Para 19 p 689 ibid.

[8] Para H pg 466 note 1.

[9] Para 28 p 692 ibid.

[10]In Danaharta Urus Sdn Bhd v Kekatong Sdn Bhd [2004] 2 MLJ 257 at para 39 p 275.

[11] Discrimination consists of negative discrimination including direct and indirect discrimination for example, gender neutral terms can result in discrimination. However positive discrimination in favour of women such as pregnancy protection policies or laws are permitted under CEDAW.

[12] See for example the Pregnancy Guidelines issued by the Human Rights and Equal Opportunity Commission, Australia which suggests that employers make all reasonable adjustments to the workplace to accommodate the normal effects of pregnancy. The full text of the guidelines are available at http://www.hreoc.gov.au/sex_discrimination/pregnancy/guidelines.

[13] ibid

[14] Wardley v Ansett Industries (Operations) Pty. Ltd. (1984) EOC 92-002 at p 7of 22 of the Pregnancy Guidelines at note 9.

[15] Once a collective agreement has been signed between the trade union and employer, it is required to be deposited with the Industrial Court which has the opportunity then to consider its terms and conditions. The Industrial Court exercises its power by then taking cognizance of the CA which then becomes an award of the Industrial Court and any breach can be enforced as a violation of an award of the Industrial Court.

[16] [2002] 3 CLJ 547.

[17] See support for this position in R.Rama Chandran v The Industrial Court of Malaysia [1997] 1 MLJ 145, per Edgar Joseph Jr. at p 190.

[18] Judgement of the court as delivered by Abdul Hamid Mohamad FCJ at para H p 466.

[19] See the discussion in, Eugenia Date-Bah (ed), Promoting Gender Equality at Work – Turning Vision into Reality,(1997) by Anne-Marie Brocas , Equality of treatment between men and women in social security and in family responsibilities at pp 163 – 167.

[20] Para 26 p 691 of the Beatrice Fernandez case.

[21] The CEDAW convention must be understood from the perspective of the dynamics of human rights treaty law and its application to domestic law. As noted by Shantini Dairam, Malaysia’s representative to the CEDAW Committee “…its uniqueness lies in its mandate for the achievement of substantive equality for women requiring not only formal equality but also…the practical realization of equal rights…” in a speech delivered at the Global Consultation on the Ratification and Use of  the Optional Protocol to CEDAW, 27-30 August 2005 in Kuala Lumpur.

[22] In the Malayisian context, the Employment Act 1955 legislates on maternity leave and maternity benefits but not specifically on pregnancy leave and the associated rights.

[23]  See Rachel A. Cichowski, Women’s rights, the European Court, and Supranational Constitutionalism (2004)  Law & Society Review.

[24] Sandra Fredman, A Difference With Distinction: Pregnancy and Parenthood Reassessed, 110 The Law Quarterly Review at p 106.

[25] C.MacKinnon, Feminism Unmodified: Discourses on Life and Law, (1987), Cambridge, Mass: Harvard UP as discussed in H.Barnett, Introduction to Feminist Jurisprudence, (1998) Cavendish Publishing Limited at p 165.

[26] P 106 of note 24.

[27] See for example the International Labour Organisation or ILO’s Conventions such as No.111 on elimination of discrimination (employment and occupation) (1951), No.156 and recommendation No.165 concerning workers with family responsibilities (1981).

[28] See the arguments on this conflict in Grace James, All That Glitters Is Not Gold: Labour’s Latest Family-Friendly Offerings (2003) Web Journal of Current Legal Issues.

[29] [1989] 1 SCR1219 discussed at p 114  in note 23.

[30] Note 24 at p 7 of 17.

[31] Ibid at p 8 of 17.

[32] See the discussion on perceptions of discrimination and pregnancy in Cichowski’s article pp 7-11 in note 23 and Fredman’s article at pp 113-116 in note 24.

[33] All India Reporter (1981) SC 1829.

[34] S.P. Sathe, Towards Gender Justice, (1993), Research Centre for Women’s Studies, Bombay at p 37.

[35] One may argue the same over the current MAS policy of limiting paid maternity leave for 2 children only while s.37 of the Employment Act 1955 allows maternity benefits for up to 5 children.

[36] SCI (Civil Appellate Jurisdiction) Civil Appeal no. 4570 of 2002.

[37] Article 15 clauses (1) and (2) prohibit the State from discriminating against any citizen on grounds only     of religion, race, caste, sex, place of birth or any of them. Article 16 (2) guarantees that “No citizen shall on grounds only of religion, race, caste, sex, descent, place of birth, residence or any of them, be ineligible for, or discriminated against in respect of, any employment or office under the State”.

[38]See article, Maharaja is now a little less sexist,  at  http://www.indianexpress.com,, Friday December 12 2003.

[39] For more on MAS’s gender biased policies and service conditions, see the Women’s Aid  Organisation or the WAO website http//:www.wao.org.my/news/20030109mas.htm.

[40] at p 156-166 of the case.

[41] As a result of the 2001 amendment to the Federal constitution, the word “gender” was included as an added ground of discrimination. As opposed to “sex” which refers to the biological make-up of a woman, “gender’ includes a wider meaning as it refers to the social contruct of a woman.

[42] See the discussion on this issue in the article by Sudha Pillay, The New Multi-Faceted Dimensions of Articles 5 and 8 of the Federal Constitution In the Control Of Administrative Action, (1999)Journal of Malaysian and Comparative Law, Volume 26 at p 157.

[43] See note 46.

[44] The reasonableness test as enunciated by Lord Greene MR in Associated House Ltd v Wednesbury Corp. [1948] 1 KB 223 at p 230.

[45] Per Bhagwati J in Maneka Gandhi v Union of India [1987] AIR SC 597.

[46] See Prof Shad Saleem Faruqi’s paper, Gender Bias and the Constitution  presented at the Forum on Amendment to Article 8 (2) of the Federal Constitution – What It Means? organized by The Kuala Lumpur Bar Committee on 8^th February 2002.

[47] For a guide on CEDAW and its historical background, go to http://www.un.org/womenwatch/daw.

[48] For a comprehensive review of literature on CEDAW and OP-CEDAW in the Asia Pacific region in particular, refer to the International Women’s Rights Action Watch Asia Pacific or IWRAW at www.iwraw-ap.org.

[49] Under the monoist system, once an international treaty or convention is ratified, it is self-executing and automatically becomes part of domestic law.

[50] Presented at a conference on , Constitutionalism, Human rights and Good Governance at Kuala Lumpur on 30 September – 1 October 2003.

[51] [1981] 1 MLJ 29.

[52] See the appeal decision in the Unity Dow case, Dato’ Gopal Sri Ram’s article on incorporating international into local law in note 50 as well as the observations made in Cherie Booth’s Law Lecture on, The Role of the Judiciary in relation to Human Rights Law in note 59, for some interesting discussions on the issue.

[53] In Government of Malaysia & Ors v Loh Wai Kong [1979] 2 MLJ 33 at p 34.

[54] [1995] 69 Australian Law Journal 423 and at p 6 of Dato’ Gopal Sri Ram’s paper mentioned in note 50.

[55] AIR 1997 SC 3011.

[56] R v  Secretary of State for Home Department ex parte Mohammed Hussain Ahmad [1998] EWCA (Civ) 1345 at p 7 of Note 50.

[57] P 33 of note 34.

[58] Jayanthi Naidu, Positive Rights in the Constitution? (2003) Journal of Malaysian and Comparative Law (JMCL)  Vol. 30 at p 1.

[59] Delivered on 26 July 2005 at the Shangri La Hotel, Kuala Lumpur. The full text of her speech is available on the Malaysian Bar website at www.malaysianbar.org.my

[60] B.Baines and R.Rubio-Marin (eds), The Gender of Constitutional Jurisprudence (2004), Cambridge University Press at pp 13-14.

[61] Public sector employees today are also increasingly employed on a contractual basis by the government  and state authorities. Their position vis-à-vis the constitution remains a grey area.

[62] S.Fredman, European Community Discrimination Law: A Critique,  Industrial Law Journal (1992)  Vol. 21 at  p 119.

*This paper was delivered at the 13th Malaysian Law Conference.