13 July 2011
In a case being described as "a giant leap for gender equality", the court has held that the United Nations' Convention on the Elimination of All Forms of Discrimination Against Women (CEDAW) has the force of law and is binding on the Malaysian government.
The landmark decision was passed by Justice Zaleha Yusof in the Shah Alam High Court yesterday in the matter of Noorfadilla Ahmad Saikin v Chayed Bin Basirun & 5 Others.
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. Besides the officer in charge, the other defendants being sued included the Federal Government, the Education Minister and Education director-general.
This is the first time in Malaysian history where a civil servant had taken legal action against the government over gender discrimination at workplace.
What constitutes "discrimination against women" and "gender discrimination" has not been decided in Malaysia prior to Noorfadilla's case. This case confirms that both direct and indirect discrimination are forbidden by law.
Justice Yusof referred to Article 1 of CEDAW to assist in defining "discrimination against women". This includes both direct and indirect discrimination.
The justice 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.
"Pregnant woman wins landmark case : Malaysia" New Straits Times July 13, 2011
"A giant leap for gender equality" FMT July 13, 2011
"Woman wins case of gender-based discrimination" Malaysian Star July 13, 2011