JAG: AG’s appeal retrogressive

Original reproduction of JAG’s statement on 7 February 2012 by theSun found here. Support the Malaysian High Court judgment by voting for it at the Gender Justice Uncovered Awards 2012 here!

IN JULY last year, the Shah Alam High Court ruled that the act of revoking an offer of employment as a temporary teacher to a woman due to her pregnancy was unconstitutional and breached Malaysia’s obligation as a state party to the United Nations Convention on the Elimination of all Forms of Discrimination against Women (Cedaw).

In her judgment, Justice Zaleha Yusuf affirmed that it was the court’s role “to promote the observance of human rights in this country”. She also stated: “Cedaw is not a mere declaration. It is a convention. Hence … it has the force of law and [is] binding on member states, including Malaysia.” Therefore, she said, “the court has no choice but to refer to Cedaw in clarifying the term ‘equality’ and gender discrimination under Article 8 (2) of the Federal Constitution.”

The landmark ruling was significant as it served to prohibit dismissal on the ground of pregnancy. Zaleha found arguments by the Attorney-General’s Chambers in defence of the revocation lacked merit.

The Joint Action Group for Gender Equality (JAG) is therefore appalled to learn of the AG’s Chambers appeal against this progressive ruling. It shows a blatant disregard for:

— The principles of equality and the prohibition of gender-based discrimination under the Constitution;
— Malaysia’s obligations under Cedaw; and
— Its position in the UN Human Rights Council.

Article 8 (1) of the Constitution provides equality before the law for all persons, and entitlement to equal protection of the law. Article 8 (2) prohibits discrimination based on various criteria, one of which is gender. This prohibition extends to several social realities such as appointment to any office or employment under a public authority.

Under Cedaw, Article 11 (2) (a) states that state parties shall take appropriate measures to prohibit – subject to the imposition of sanctions – dismissal on the grounds of pregnancy or of maternity leave.

It is also significant to note that upon Malaysia’s re-election to the UN Human Rights Council, the government made the following statement: “It signifies the international community’s recognition and appreciation of Malaysia’s commitment to respecting and upholding the inalienable and indivisible nature of all human rights at the international and domestic levels.”

The government’s appeal against this ruling reflects poorly on its sincerity in upholding its commitments, nationally and internationally. It serves no purpose claiming to uphold the rights of women in the international arena but maintaining a regressive stand in the country.

The full participation of women in the labour force is integral in any economy. The government has made numerous statements and commitments about encouraging and recognising this. The appeal taints government initiatives relating to women in the workforce.

The government of the day should rightly lead the way in acknowledging and respecting the contributions of women in the workforce, be they pregnant or not.

JAG reiterates its statement from June last year that “the government and society must acknowledge maternity as a vital social function and accept that a woman’s human rights must not be denied if she chooses to have a child. JAG calls on the government and society to recognise that they are duty-bound to accommodate pregnant women and not to dismiss employees or prospective employees on the basis of pregnancy”.

JAG via email

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Malaysian Centre for Constitutionalism and Human Rights (MCCHR) is a non-profit based in Kuala Lumpur with the mission of promoting active democratic participation and human rights awareness.

Posted on 10 February 2012. You can follow any responses to this entry through the RSS 2.0.

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2 Responses to JAG: AG’s appeal retrogressive

  1. Melissa

    There is a need to differentiate between questioning the judicial process itself as opposed to questioning a government policy. Of course the government has a right whether to pursue the appeal or otherwise . But it is the policy behind such pursuance that is being questioned, by virtue of the government's own international obligations, which carry legal resonance. In civil society, this distinction must be questioned as the policy affects the public.

  2. Ruzaini Zul

    While it is commendable that the court arrived at such a progressive decision, the government cannot be faulted for exercising the option of appealing against the decision.

    Justice is for everyone, not only for one party to any suit. In fact, I should think that the condemnation over the government's decision to appeal is a violation to the notion of justice. Until and unless the judicial avenues have been exhausted, any party is entitled to pursue the necessary course of action.