The Malaysian Bar welcomes the decision by the Attorney General to withdraw the Government's appeal at the Court of Appeal in the case of Chayed bin Basirun & Ors v Noorfadilla bt Ahmad Saikin.
The legal question in Noorfadilla’s case arose when the Malaysian Government revoked and withdrew her appointment as a Guru Sandaran Tidak Terlatih (“GSTT”) because she was pregnant. The High Court held that this act amounted to gender discrimination and constituted a violation of Article 8(2) of the Federal Constitution, which deals with equality before the law.
What was significant in this case was the High Court's reliance on the Convention on the Elimination of All Forms of Discrimination against Women (“CEDAW”), to which Malaysia acceded in July 1995, in clarifying what is meant by the terms “equality” and “gender discrimination”. To quote from the judgment of the High Court:
… the word “gender” was incorporated into Article 8(2) of the Federal Constitution in order to comply with Malaysia’s obligation under the CEDAW. It is to reflect the view that women are not discriminated. . . . In Article 11(2)(a) of CEDAW, it provides that State Parties shall take appropriate measure to prohibit, subject to the imposition of sanctions, dismissal on the grounds inter alia, of pregnancy. . . . [CEDAW] has the force of law and [is] binding on members states, including Malaysia. [sic]
The High Court also stated that:
. . . in interpreting Article 8(2) of the Federal Constitution, it is the Court’s duty to take into account the Government commitment and obligation at international level . . . there is no impediment for the Court to refer to CEDAW in interpreting Article 8(2) of the Federal Constitution. Hence, applying Article 1 and 11 of CEDAW I hold that pregnancy in this case was a form of gender discrimination. The plaintiff should have been entitled to be employed as a GSTT even if she was pregnant. Further, the plaintiff was pregnant because of her gender. Discrimination on the basis of pregnancy is a form of gender discrimination because basic biological fact that only women has the capacity to become pregnant.” [sic]
Notwithstanding this welcomed decision, the Malaysian Bar calls upon the Government to do more to eradicate gender discrimination in Malaysia. Apart from the amendment to the Federal Constitution, which was made in 2001, the Government has not passed any specific legislation to prohibit gender discrimination. Indeed, in the first test case after the Federal Constitution was changed, Beatrice Fernandez v Sistem Penerbangan Malaysia & Anor in 2004, the provisions of CEDAW were also invoked but without success. That decision, which still stands today, held that the forced resignation of an airline stewardess after becoming pregnant was a matter of private contract law, and not gender equality or discrimination.
A further disturbing decision was that of the Court of Appeal in March 2012 which upheld the right of an employer, Guppy Plastics Industries Sdn Bhd, to enforce the retirement of female employees at an earlier age than male employees.
Enacting specific anti–gender discrimination legislation will go a long way towards promoting and protecting gender equality in Malaysia. The government should also consider addressing the other concerns of the Committee on the Elimination of Discrimination against Women expressed in their Concluding Observations issued after their review of Malaysia in May 2006. Many of those concerns remain outstanding, notwithstanding the passage of seven years.
The action of the Malaysian Government in withdrawing its appeal in the Noorfadilla case is a step in the right direction. However, the journey remains long and unfinished.
Christopher Leong
President
Malaysian Bar
30 June 2013
Click here to see the reported High Court judgment in Noorfadilla bt Ahmad Saikin v Chayed bin Basirun & Ors [2012] 1 MLJ 832