WUNRN
MALAYSIA - TEACHER WINS PREGNANCY
DISCRIMINATION CASE
CEDAW SIGNATORY OF MALAYSIA
CONSIDERED BINDING
Malaysia - In a decision against the
Education Ministry and the government, Shah Alam High Court judge Zaleha Yusof
has ruled that the United Nations' Convention on the Elimination of all Forms
of Discrimination against Women (Cedaw) - to which
"The judge said that Cedaw had the force of law and is binding in
Norfadilla Ahmad
Saikin, 29, took the government to court to seek a declaration that pregnancy
cannot be used as an excuse not to employ a person as a untrained relief
teacher (GSTT) and the revocation of the memo on her placement to be declared
illegal and unconstitutional.
She was given a memo for the month-to-month teaching contract in January 2009,
but this was revoked almost immediately when the Hulu Langat district education
officers found out that she was pregnant.
Named as respondents were Hulu Langat district education officers Chayed
Basirun and Ismail Musa, their department head Zahri Aziz, the Education
Ministry director-general, the education minister and the government.
According
to Tan (on right in
picture below), who acted for Nurfadilla, the court recognised that
the government had to commit to Cedaw, and to adopt the article regarding
discrimination against women under its Article 11.
Article 11 of Cedaw requires countries to protect women's rights to work, to
ensure that women have the same training and employment opportunities as men,
that women receive equal pay for work of equal value, that women have access to
the same benefits, compensatory schemes, and allowances as men, especially in
relation to retirement and incapacity to work.
The article further requires that countries prohibit discrimination in the
workplace on the basis of marriage, pregnancy and maternity leave, introduce
paid maternity leave without loss of benefits or career opportunities, and
encourage the provision of supporting social services to allow parents to
combine family obligations with work responsibilities.
Nurfadilla also argued the case under Article 8(2), which pertains to
discrimination on the grounds of 'religion, race, descent, gender or place of
birth… in the appointment to any office or employment under a public
authority'.
The court ruled for damages to be paid to Nurfadilla, in a sum that will be
decided by the registrar at a later date.
This is the first time a civil servant has brought the government to court over
gender discrimination in the workplace in this landmark case.
Lawyer Edmund Bon (left,
in picture above), who also acted for Nurfadilla, said it was
extremely rare for the court to award damages to the plaintiff over the pure
breach of the Federal Constitution, where the government has unfairly
discriminated against Nurfadilla because of her pregnancy.
Malaysia has to abide by international
conventions
Tan also said that this should set a precedence for current international
treaties and conventions to which Malaysia is a signatory, that they are
legally binding and should be observed as law.
"This means that international instruments such as the Convention of the
Rights of a Child and Convention on the Rights of Persons with Disabilities
have to be observed by the government to full effect," she told reporters
outside the court.
Representing Nurfadilla this morning was her husband Mohd Izwan Zakaria, who
was visibly elated after receiving the decision from the judge's chambers.
Nurfadilla is still on confinement after having given birth to her third child
last month.
"Praise Allah for all the hard work by the our lawyers, as well as the
Selangor government and the Human Rights Commission (Suhakam) for supporting us
through this.
"I am just absolutely speechless and I hope that there are no more cases
like this, whether in the public or the private sector," Izwan said.
Clearly relieved, he said that it was justice at long last, after his wife
having exhausted every single complaint avenue with her employers within the
ministry and the government.
Lawyers Jesrina Grewal and Siti Kasim held the watching brief for Suhakam and
the Bar Council respectively.