Noorfadilla bt Ahmad
Saikin v Chayed bin Basirun
& Ors [2012]
1 MLJ 832
Convention on the Elimination of
All Forms of Discrimination Against Women, 1979 or CEDAW is a form of
instrument to aid with women’s rights created by the United Nations General
Assembly and it is an international treaty adopted in 1979 consists of 30
Articles of women’s rights to equality and non-discrimination. It also obliges
governments to pledge women “the exercise and enjoyment of these rights”, as
stated in Article 3 in Part 1 of CEDAW.
In July 2001, Article 8(2) of Federal Constitution was
amended to include gender as a basis for non-discrimination and it was a
gesture by Malaysia to show commitment by signing and ratifying it in 1995.
Legally, it had the force of law in Malaysia as the country had acceded to the latter
human rights treaty.
As a general rule, everybody is equal before the law, as
stated by Article 8(1) of Federal Constitution. Now, with the existence of
Article 8(2), a person is not to be discriminated due to his/her gender, let
alone by his/her biological sex differences.
Noorfadilla had obtained employment as a Guru Sandaran Tidak
Terlatih (a temporary teacher on a month-to-month basis) and when she was asked
to attend a compulsory briefing, she was asked whether she was pregnant. When it was known that she was pregnant with
three month baby, her employment placement memo was withdrawn.
Discrimination is a form of unequal treatment. When she was dismissed due to her pregnancy
and Noorfadilla then took legal action against the government in 2010 after
Hulu Langat district education officers revoked her appointment in 2009. It is
discrimination when a woman is dismissed due to her pregnancy. Indirectly, the
government is discriminating her by revoking her employment after knowing that
she was pregnant.
A pregnant woman is justified by the principle of reasonable
classification; nonetheless it was only applicable to Article 8(1) and did not
apply to Article 8(2). On basis, it is formulated by Aristotle in reference to Plato: “treat like cases as
like”. Under sameness standard, women are always compared to men. The formal
equality does not help much in the pregnancy situation because male cannot get
pregnant. Thus, formal equality practice disadvantages women.
By realising this, it is preferable to select one with equal
opportunity and equal outcomes for both men and women, which screamed
substantial equality. Women and men cannot be similarly situated,
scientifically at least. Women can get pregnant. It is an acknowledged sexual
biological difference between males and females. It may be said that only
females will suffer this form of oppression and is prone to be dismissed under
this standard as males are never pregnant.
Men and women are not the same, as women can get pregnant.
Simply put, the employer has treated Noorfadilla unequally due to her
biological sex differences. It is of no right of the employer to penalise their
employees due to pregnancy alone. Such a term is good example of unequal
treatment.
By revoking Noorfadilla’s employment, the employer has
failed to let her enjoy her right of living and also, failed to extinguish the
dichotomy between public and private spheres and lets discrimination to be
allowed. Noorfadilla was later then awarded RM300,000 in damages for breach of
her constitutional right to gender equality.
While Noorfadilla may have won the case because of her
status of public actors, Malaysian courts have been very reluctant to hold
private companies liable for breach of constitutional rights. Such act is
illustrated in the case of Beatrice Fernandez when a flight stewardess sued
Malaysia Airlines when they fired her after she became pregnant and refused to
resign.
In a nutshell, this form of adverse treatment is unlawful as
it defeats the purpose of the existing of Article 8(2) which to allow one to
enjoy her right of gender equality. A woman shall not be treated unfavourably
just because they are different than men but instead, the differences should be
embrace by the society. Be it a public actor or even private actor, every
employee of Malaysia should have the privilege to enjoy their constitutional
right to gender equality as permissible by law. -NS-
No comments:
Post a Comment