Several years ago, the Malaysian Ministry of Education, responding to a shortage of trained teachers in the country, decided to implement a program by which they would hire untrained teachers to serve on a temporary basis. In 2009, a Malaysian woman, Noorfadilla Saipin, interviewed for the position and several months later, was offered the job.
While she was attending a group meeting for those hired into the program, the program coordinator asked anyone present whether or not she was pregnant. At the time, Noorfadilla was in fact three months pregnant. After raising her hand (along with two other women), the coordinator immediately revoked the letter, or placement memo, granting her the position. When prompted by Noorfadilla’s husband to explain why she had lost the position, the Ministry listed four main reasons:
- The recovery period between the time of delivery to full health after giving birth was too long;
- A pregnant woman might not be able to attend to her job due to various health reasons;
- When she gives birth she would have to be replaced by a new teacher who will require further briefings; and
- Her post could not be filled by a “replacement” teacher.
The Ministry added that the point of Noorfadilla’s position in the program was to “overcome the shortage of teachers and not add to the problem.” However, instead of resigning herself to the decision, Noorfadilla decided to fight it.
It took two years before the case was brought to court. Finally, in 2011 the judge ruled on her behalf. Referring to provisions under Convention on the Elimination of All Forms of Discrimination against Women (CEDAW), including Articles 1 and 11, the judge ruled that the refusal to employ a woman on the grounds of pregnancy alone constituted a form of gender discrimination and therefore was unconstitutional under Article 8 of the Federal Constitution of Malaysia. Article 8(2) of the Malaysian Federal Constitution states that there shall be no discrimination based only upon gender in the appointment of any office or of employment of any public authority. Thus, whether or not she had had a binding contract with the government was irrelevant.
The judge explained that CEDAW had the force of law and was binding on member states, including Malaysia. Even in states where treaties do not automatically have the force of binding legislation, such as in Australia, the Court noted that such treaties still have significant force in that country’s legal system; and that where a statute or law is ambiguous, the courts should favor a construction which accords with the country’s obligations under the treaty. The Court also cited Article 26 of the Vienna Convention on the Law of Treaties as supporting Malaysia’s commitment as party to a treaty in force. As a result, Malaysia was obliged to uphold its CEDAW obligations in defining and clarifying equality and gender discrimination under the relevant provision of its own Constitution. Finally, citing jurisprudence from the Supreme Court of Canada, the Court established that discrimination on the basis of pregnancy indeed was a form of gender discrimination, as biologically only women have the capacity to become pregnant.
As damages for the breach of her constitutional right, the judge awarded Norfadilla 300,000 Malaysian Ringgit (RM), or $84400.10 U.S. dollars. The Malaysian government was also ordered to pay Noorfadilla RM 12,907.68 for loss of earnings, RM 2,296.10 for loss of Employees Provident Fund, RM 912.71 for loss of EPF dividends, RM 25,000 for pain and suffering, and RM 5,000 in costs. The government declined to pursue an appeal.
“It is one small step for Noorfadilla, but one giant leap for women’s rights in Malaysia,” Noorfadilla’s lawyer Honey Tan had told Malay Mail Online. Her lawyer added, “There have never been damages paid for breach of constitutional rights before this. This decision has made great inroads into the development of Malaysian jurisprudence in the area of human rights law.”
Malaysia took a great step toward preventing gender-based discrimination by ratifying CEDAW. Yet there are further steps the Malaysian government can continue to take, such as by passing specific legislation to prohibit gender discrimination.
Read the full text of the decision, Noorfadilla Binit Ahmad Saikin vs. Chayed Bin Basirun and Others, here: