Trishelea Sandosam explains Malaysia's landmark gender discrimination case.
 
INTRODUCTION
 
In July 2011, the High Court delivered a landmark decision in Noorfadilla binti Ahmad Saikin v Chayed bin Basirun and Ors [2012] 1 CLJ 769 when it held that refusal to employ a woman on the grounds of pregnancy alone is a form of gender discrimination, and thus unconstitutional under Article 8 of the Federal Constitution.
 
The well-reasoned and truly significant judgment, which expounds the concept of gender discrimination as defined under the Convention on the Elimination of All Forms of Discrimination against Women (“CEDAW”) has received wide praise from the legal community and non-governmental organisations and has been nominated for the 2012 International Gender Justice Uncovered Award.
 
This article explains the salient points of this judgment, which has far-reaching effects on women in Malaysia. 
 
BACKGROUND FACTS
 
Noorfadilla binti Ahmad Saikin (“the Plaintiff”) applied to the Hulu Langat District Education Office for the post of an untrained relief teacher (“GSTT”) pursuant to a circular (“Circular”) from the Ministry of Education ("Ministry"). The Plaintiff attended an interview where she was asked questions of a general nature. At no point before or during the interview was she asked whether she was pregnant.
 
Several days after the interview, the Plaintiff received confirmation that her application had been successful. When she attended the Hulu Langat office as instructed, she was briefed on the terms of employment and was asked to report for duty immediately. During this time, an officer enquired if she was pregnant. The Plaintiff indicated that she was and, as a result, the post offered to her was revoked.
 
The Plaintiff wrote to the Ministry several times to seek an explanation. The Ministry responded and stated that a pregnant woman cannot be employed to the post of GSTT for the following reasons: (i) the duration of time between delivery and recovery to full health is lengthy; (ii) a pregnant woman may be unable to attend to her job frequently due to various health reasons; (iii) she would need to be replaced by a new teacher, who would require further briefings; and (iv) the GSTT post cannot be filled by “replacement” teachers.
 
The Ministry added that the purpose of employing GSTT was to overcome the shortage of teachers, not to add to the problem.
 
The Plaintiff's solicitors wrote to the defendants demanding restoration of her employment, but to no avail. Undeterred, the Plaintiff commenced legal proceedings where she named two district officers, the Selangor Education Department State Director, the Chief Director of the Ministry, the Minister and the Government of Malaysia as defendants in the action (“Defendants”). The Plaintiff sought a declaration that she was qualified and entitled to be appointed as a GSTT and that the Defendants withdrawal of her appointment as a GSTT was unlawful, unconstitutional and void. 
 
ISSUE
 
The main issue before the High Court was whether the action or directive of the Defendants in refusing to allow a pregnant woman to be employed was tantamount to gender discrimination and in violation of Article 8(2) of the Federal Constitution.
 
Before discussing the judgment, a brief overview of CEDAW is set out below to enable greater appreciation and understanding of the judgment.
 
CEDAW
 
CEDAW was adopted in 1979 by the United Nations General Assembly and is the foremost United Nations treaty on women’s rights. It consists of 30 articles. Malaysia acceded to the Convention on 5 July 1995.
 
Article 1 of CEDAW 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.”
 
Article 11(1)(b) of CEDAW provides that “State Parties shall take all appropriate measures to eliminate discrimination against women in the field of employment in order to ensure, on a basis of equality of men and women, the same rights, in particular ... the right to the same employment opportunities, including the application of the same criteria for selection in matters of employment”.
 
Article 11(2)(a) requires States Parties to take appropriate measures to prohibit dismissal on the grounds of pregnancy.
 
The word ‘gender’ was inserted into Article 8(2) of the Federal Constitution in 2001 in order to comply with Malaysia’s obligation under CEDAW. It now reads as follows: “... 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...”
 
DECISION OF THE HIGH COURT
 
CEDAW and gender discrimination
 
The learned Judge, Dato' Zaleha binti Yusof J, opined that the Court had “no choice” but to refer to CEDAW in clarifying the term ‘equality’ and the concept of gender discrimination under Article 8(2) of the Federal Constitution. Relying on Mohd Ezam Mohd Noor v Ketua Polis Negara [2002] 4 MLJ 449, the Court held that as CEDAW is a convention and not a mere declaration, it has the force of law and is binding on member states.
 
The Court noted its duty to take into account the government’s obligation under CEDAW in interpreting Article 8(2) of the Federal Constitution. Her Ladyship also drew inspiration from Australian and Indian jurisprudence which advocates the use of international conventions and obligations in the construction of domestic legislation.
 
The Judge also referred to several instances where Malaysia had expressed its commitment to ensuring that the principles enunciated under CEDAW were given full effect under Malaysian law. For example, during the Putrajaya Declaration and Programme of Action on the Advancement of Women in Member Countries of the Non-Aligned Movement, Malaysia had pledged to take all necessary measures, in the area of law and policy, to eliminate discrimination against women in the public and private sector and to eliminate impediments to women’s equality.
 
Her Ladyship also referred to the judicial colloquium on the Domestic Application of International Human Rights Norms in India in 1998, attended by the then Chief Justice of Malaysia, which concluded with a statement by the Convener that national courts are to have regard to international obligations which a country undertakes, even if those obligations have not been incorporated into domestic law.
 
In applying Article 1 and 11 of CEDAW, and drawing inspiration from the Canadian Supreme Court case of Brooks v Canada Safeway Ltd [1989] 59 DLR (4^th) 321, the learned Judge held that pregnancy is a form of gender discrimination “because of the basic biological fact that only woman have the capacity to become pregnant”.
 
Rejection of the Defendants’ arguments
 
The Defendants averred that the decision not to employ a pregnant woman for the GSTT post was a policy consideration and was thus not reviewable by the Court. The Judge found this argument to be an afterthought as this policy was neither incorporated into the Circular nor were any questions regarding pregnancy raised during the interview for the post. The Circular furthermore did not specifically prohibit pregnant women from applying for the post, but merely stated that a teacher is not entitled to maternity leave.
 
The Defendants also argued that employing a pregnant woman to fill the GSTT post would defeat the purpose of the post which was to solve the problem of a shortage of teachers in Malaysia. Zaleha J rejected this argument and noted that the contract was on a monthly basis and could be terminated at any time. There was no guarantee that the GSTT would stay even if she was not pregnant. The court went on to further observe that the pregnancy would not necessarily interfere with the Plaintiff’s duties as medical check-ups could be done outside school hours.
 
The learned Judge also rejected the Defendants’ argument that it was justified in discriminating against pregnant women by virtue of the principle of reasonable classification. The Court noted that the concept was only applicable to Article 8(1) and not to Article 8(2) of the Federal Constitution. The Court relied on PP v Datuk Harun Haji Idris & Ors [1976] 1 LNS 180 where it was held that Article 8(2) contains particular application of the principle of equality and therefore discrimination solely on the grounds embodied under Article 8(2) cannot be justified by the use of the principle of reasonable classification.
 
The Defendants also submitted that Article 8 of the Federal Constitution does not apply to a contractual relationship. Applying Beatrice AT Fernandez v Sistem Penerbangan Malaysia & Anor [2005] 2 CLJ 713, the Court held that the Defendants are indisputably public authorities and thus agents of the Executive. Therefore, their actions fell within the ambit of Article 8(2) of the Federal Constitution.
 
The subsidiary issues raised in this case were, first, that the Plaintiff did not have locus to bring the action as there was no binding contract between the parties and, second, whether a declaration was a proper remedy. The learned Judge dealt with these points summarily by stating that the Plaintiff’s right to be employed had been affected by the Defendants’ decision and thus, the Plaintiff had locus to bring this action and as the Plaintiff was seeking to assert her right to a legal status, a declaration was the proper remedy to be sought. 
 
COMMENTARY
 
The significance of this case is multifarious. Since time immemorial, Malaysia has been content with paying lip-service to its international human rights obligations, without giving pertinent international conventions legal recognition and the force of law. This decision marks a departure from the courts’ complacent attitude towards international human rights law and is hopefully representative of an emergent rights-centred approach. The Court has finally realised the importance of interpreting domestic legislation in line with international law so as to ensure an improvement of Malaysia’s reputation within the international human rights community.
 
In terms of women’s rights, this decision is indeed long overdue. During the 35^th session of CEDAW in 2006, the CEDAW committee expressed concern that CEDAW was not enforceable in Malaysian domestic courts and that no Malaysian legislation contained a proper definition of discrimination against women. Although it took more than half a decade, this case represents the first time our Malaysian courts have defined and discussed at length the concept of gender discrimination and used CEDAW to give effect to the provisions of the Federal Constitution.
 
Furthermore, while societal views of women in the workplace as a whole have evolved positively over the years, the law has been slow to reflect this. This decision will hopefully be an impetus for a positive trend of greater protection and promotion of woman’s right in our courts. Both public and private sector employers would be forced to rethink their policies and guidelines to ensure compliance with the law.
 
It is also hoped that this case will give women the confidence to come to the forefront and report cases of discrimination to the authorities and to subsequently initiate legal action to seek redress for their grievances.
 
CONCLUSION
 
Leonardo da Vinci once said, “I have been impressed with the urgency of doing. Knowing is not enough; we must apply. Being willing is not enough, we must do.” Malaysia has long known its place in the international community and the importance of international human rights and women's rights legislation. Finally, we have taken the bold step of giving it due recognition and legal status.
 
The Government has appealed against the decision. Whatever may be the outcome of the appeal, this ground-breaking decision will forever be remembered as one where our courts did what was plain and obviously just, without fear or favour.
 
As the Judge noted in the conclusion to her judgment, “the court has a role to promote the observance of human rights in this country”. With this judgment as a guiding light, we can look forward to the courts’ greater assumption of this role.