The Joint Action Group for Gender Equality (JAG) applauds Justice Zaleha Yusof’s decision in the Shah Alam High Court yesterday in the matter of Noorfadilla Ahmad Saikin v Chayed Bin Basirun & 5 Ors.
For the first time in Malaysian legal history, the court has held that the Convention on the Elimination of All Forms of Discrimination Against Women (CEDAW) has the force of law and is binding on the Malaysian government, and Article 8(2) of the FC must be read to comply with it.
In 2009, Noorfadilla had accepted the letter of offer to be a temporary teacher in a government school. When it was discovered that she was pregnant, the officer in charge retracted the offer.
Noorfadilla then filed an application in court for damages, interest and costs, on the basis that the revocation of offer due to pregnancy is a form of gender discrimination. This is a prohibited ground of discrimination under Article 8(2) of the Federal Constitution (FC).
What constitutes ‘discrimination against women’ and ‘gender discrimination’ has not been decided in Malaysia prior to Noorfadilla’s case.
Zaleha took the right step in referring to Article 1 of CEDAW to assist her in defining “discrimination against women”. This includes both direct and indirect discrimination. She also referred to Article 11 of CEDAW which sets out the rights of women to work, and that pregnancy cannot be used as an excuse to stop women from working.
Direct discrimination is clear and has the purpose of discriminating. Indirect discrimination happens when the law, at face value, does not treat men and women differently. Even if the law does not intend to discriminate but results in actual discrimination against women, this is also indirect discrimination.
The definitions of direct and indirect discrimination will be invaluable when women file cases of discrimination and equality in court. The court granted Noorfadilla damages to be assessed and interest.
Noorfadilla’s decision sends a clear and unequivocal message: withdrawal of job offer due to pregnancy is a form of gender discrimination, and this is prohibited under Article 8(2) of the FC.
The obvious is now law: women have a right to work even when they are pregnant.
This statement is released by Empower for and on behalf of the Joint Action Group for Gender Equality (JAG) which comprise All Women’s Action Society (Awam), Perak Women for Women (PWW), Sabah Women Action Resource Group (Sawo), Sisters In Islam (SIS), Women’s Aid Organisation (WAO) and Women’s Centre For Change, Penang (WCC).