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Landmark gender equality judgment faces appeal

January 28, 2012
Landmark gender equality judgment faces appeal
Hafiz Yatim
12:37PM Jan 28, 2012 Malaysiakini.com

It is a landmark judgment which  has been nominated for this year’s International Gender Justice Uncovered award. However, this has not stopped the government from appealing the decision.

NONESuch is the fate of Norfadilla Ahmad Saikin, 29 (left), a relief teacher who sued the Education Ministry and government for withdrawing her appointment letter as an untrained relief teacher (GSTT) at a secondary school in Kajang, just because she was three months pregnant, three years’ ago.

She had named the two district officers, the Selangor Education Department, the ministry and government as defendants in her application, where she sought a declaration that the revocation of her placement offer was illegal and unconstitutional.

Norfadilla had been successful in an interview by the department which offered her a placement in January 2009.

However, as she and two other relief teachers had been asked whether they were pregnant, and when the answer was affirmative the offer letter was immediately withdrawn.

Undeterred, Norfadilla and her husband wrote to the ministry asking for an explanation, and subsequently decided to bring the matter to court.

Last July 12, Shah Alam High Court judge Justice Zaleha Yusof delivered a landmark judgment where she declared that the United Nations Convention on the Elimination of All Forms of Discrimination Against Women (Cedaw),which Malaysia had been a signatory since 1995, is binding.

No discrimination against employment of women

In her 25-page written judgment made available at the loyarburok website, Justice Zaleha cited Article 11 (1) of Cedaw where nations 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 to employment opportunity, and same criteria for selection.

She also stated that Article 11(2) of Cedaw states that parties shall take measures to prohibit, subject to the imposition of sanctions, dismissal on the grounds of pregnancy.

The Education Ministry and department decided not to accept Nurfadilla based on a circular that GSTT teachers cannot be pregnant because during the two-month period between the time of delivery to full health, the woman may not frequently attend her job due to various health reasons, and when the birth takes place she needs to be replaced and replacements teachers cannot fill in for GSTT teachers.

However, Justice Zaleha noted that Cedaw is not a mere declaration but a convention.

Citing the Ezam Md Nor case, Justice Zaleha noted that Cedaw “has the force of law and is binding on member states including Malaysia”.

“This is the more so in view that Malaysia has pledged its continued commitments to ensure that Malaysian practices are compatible with the provisions and principles of Cedaw as evidenced in a letter from the Permanent Mission of Malaysia to the Permanent Missions of UN member states dated March 9, 2010,” she said.

“To me in interpreting Article 8(2) of the federal constitution it is the court’s duty to take into account the government’s commitment and obligation at international level especially under an international convention like Cedaw to which Malaysia is a party.

“The court has no choice but to refer to Cedaw in clarifying the term ‘equality’ and gender discrimination under Article 8(2) of our constitution.”

Justice Zaleha could not accept the argument that the circular is a policy decision by the government, and considered the argument by the defendants as an afterthought as this had not been incorporated in the circular or (pregnancy) raised in the interview.

“It is clear that the GSTT contract is a month-to-month contract and it can be terminated at any time. Even after one month of working there is no guarentee that the person will stay even if she is not pregnant.

“As such, I find there is no merit in the argument put forward by the defendants that employing a pregnant woman would defeat the purpose of GSTT to solve the problem of shortage of teachers.

“Even medical check-ups for a pregnant woman will not disturb school time as it can be done in the evening or night.

“The circular does not prohibit a pregnant woman from applying for the post as it merely states GSTT are not entitled to maternity leave,” she noted in her judgment in allowing Norfadilla’s application.

‘Appeal decision most unfortunate’

NONELawyer Edmund Bon (left), who was the lead counsel for Norfadilla, on being asked about the government’s decision to appeal, said the team is naturally disappointed.

“The government signed Cedaw and amended the constitution to outlaw gender discrimination in 2001, and it expressly made its commitment to the international community and especially the UN to uphold international standards of gender equality.

“To appeal the decision is double-speak and unfortunate. The government should accept the decision, move on and ensure no further cases like this occur again.”

The International Gender Injustice Uncovered award highlight court decisions that positively or negatively affect gender equity.

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