Toby, currently interning at Pusat Rakyat LB, critically discusses the recent Noorfadilla case (where damages were reduced by 90 percent) and compares this with the approaches of the European Court of Human Rights and the US courts when awarding damages in cases of human rights violations.
In the case of Noorfadilla Ahmad Saikin, the Shah Alam High Court slashed the award for her damages significantly from RM300,000 to RM30,000. There are two main problems with this decision – first, the reasoning for the reduction in damages; and second, the huge slash of the award.
It will be recalled that in 2011, High Court judge Yang Arif Datuk Zaleha Yusuf held that her (Noorfadilla’s) constitutional right of gender equality was violated, when Noorfadilla sued the government for refusing to employ her because she was pregnant at that time. In the current case, whilst the decision that there was a violation of human rights was not disturbed, the judicial commissioner slashed the award by a dramatic 90 percent.
In delivering her judgement (with regard to the reduction of the amount of damages), judicial commissioner Datuk Azimah Omar appeared to view other aspects as more important than the violated right of gender equality; the learned judge stated that Noorfadilla “knowingly acted to attempt to garner the benefit of employment…while having full knowledge that her pregnancy may hinder” the purpose of the relief teacher programme, by not informing her interviewer of her pregnancy….This Court cannot simply turn a blind eye to this conduct. The nation’s education force was in dire need of supplements, and the plaintiff has come forth with promise of such supplement, while knowing she might not be able to commit herself as this supplement” (Boo Su-Lyn, ‘To prevent profiteering, court slashes woman’s gender equality award by 90pc’, The Malaymail Online, 17 February 2016).
This case was not about getting rich and the judgement by the court portrays a lack of understanding of women’s human rights, particularly maternity rights. Noorfadilla should not be treated as a person who has benefitted from her circumstances but she should be recognised as a woman who was discriminated against because of her gender.
Whilst it is easy to censure the decrease in the amount of damages, putting a numerical figure to the amount of damages in a human rights violation case could be tricky. What principles should the court be guided by?
Article 41 of the European Convention on Human Rights on ‘Just Satisfaction’ states that, “If the Court finds that there has been a violation of the Convention or the Protocols thereto, and if the internal law of the High Contracting Party concerned allows only partial reparation to be made, the Court shall, if necessary, afford just satisfaction to the injured party.”
According to the Practice Direction issued by the President of the Court in accordance with Rule 32 of the Rules of Court 2012, the European Court of Human Rights may decide that a finding of violation constitutes in itself sufficient just satisfaction and in other cases, it may deem fit to award monetary damages. The award of damages can be divided into two types – pecuniary and non-pecuniary damages; the former is based on the principle of restitutio in integrum. Non-pecuniary damage is intended to compensate for non-material harm on an equitable basis, having regard to the standards, which emerge from case law. Examples of non-pecuniary damage could include mental or physical suffering.
Perhaps the rationale underlying just satisfaction is encapsulated succinctly in the Case Of Varnava And Others V. Turkey (Applications nos. 16064/90, 16065/90, 16066/90, 16068/90, 16069/90, 16070/90, 16071/90, 16072/90 and 16073/90) where the European Court of Human Rights stated that:
“Evolving case by case, the Court’s approach in awarding just satisfaction has distinguished situations where the applicant has suffered evident trauma, whether physical or psychological, pain and suffering, distress, anxiety, frustration, feelings of injustice or humiliation, prolonged uncertainty, disruption to life, or real loss of opportunity and those situations where the public vindication of the wrong suffered by the applicant, in a judgment binding on the Contracting State, is a powerful form of redress in itself. In many cases where a law, procedure or practice has been found to fall short of Convention standards this is enough to put matters right. In some situations, however, the impact of the violation may be regarded as being of a nature and degree as to have impinged so significantly on the moral well-being of the applicant as to require something further. Such elements do not lend themselves to a process of calculation or precise quantification. Nor is it the Court’s role to function akin to a domestic tort mechanism court in apportioning fault and compensatory damages between civil parties. Its guiding principle is equity, which above all involves flexibility and an objective consideration of what is just, fair and reasonable in all the circumstances of the case, including not only the position of the applicant but the overall context in which the breach occurred. Its non-pecuniary awards serve to give recognition to the fact that moral damage occurred as a result of a breach of a fundamental human right and reflect in the broadest of terms the severity of the damage; they are not, nor should they be, intended to give financial comfort or sympathetic enrichment at the expense of the Contracting Party concerned.”
In the US, to ascertain damages for constitutional or human rights cases, the courts have either looked at other cases for guidance and if this is not possible, then the courts should “develop damage measurement standards…. by considering the circumstances surround each case” (‘Measuring Damages for Violations of Individuals’ Constitutional Rights,’ (1974) 8 Val. U. L. Rev. 357). Perhaps what is instructive in this article is that because violations of human rights or constitutional rights are difficult to value as it is difficult to put an economic or physical loss to the violation, the courts should separate this consideration from the assessment of damages for traditional wrongs (such as damages in tort).
To do the above, the article recommends that the Courts or judges instruct themselves accordingly (rephrased to suit the Malaysian context and the Noorfadilla case):
- If you find that the respondent violated the applicant’s constitutional rights, your task is to place a monetary value on that right;
- You must look at the evidence presented in each case – you are attempting to determine what it is worth to the applicant to be free from being discriminated based on her gender;
- The award should reflect the value you place on the applicant’s constitutional right to gender equality;
- You should consider the circumstances of the violation and the possible culpability of the respondents;
- The award at which you arrive is solely for the constitutional right violation.
When Noorfadillas’ lawyer Honey Tan told the Malay Mail Online after the first judgment, “It is one small step for Noorfadilla, but one giant leap for women’s rights in Malaysia,” (Boo Su Lyn, ‘Woman wins RM300,000 in landmark case on discrimination over pregnancy’, The Malaymail Online, 10 November 2014) it was indeed! But slashing the award, including the reasoning behind the reduction is concerning because the main considerations before the court, when determining damages in such a case, should be the value of gender equality in Malaysia and the worth of a woman living in Malaysia to be free from gender discrimination.