In ruling that the Government’s revocation of its offer of employment, on the basis that the plaintiff was pregnant, was unconstitutional, null and void, the Judge upheld the prohibition against gender discrimination that is enshrined in Article 8(2) of the Federal Constitution. The decision is a significant milestone in our jurisprudence, as the Judge referred to the Convention on the Elimination of All Forms of Discrimination Against Women (“CEDAW”), which acceded to on 5 July 1995, and found that CEDAW is binding on Malaysia.
Just over 16 years after Malaysia’s accession to CEDAW, our Judiciary has, at long last, recognised that CEDAW has the force of law in Malaysia, and that gender-based discrimination by a public body is illegal. Although entirely correct and irrefutable, this viewpoint is ground-breaking and long overdue, as our Judiciary had not previously seen fit to apply the principles of CEDAW – or any other United Nations convention to which Malaysia is a State Party – in its decisions.
The definition of discrimination against women, as set out in Article 1 of CEDAW, informs our understanding of what constitutes gender discrimination under Article 8(2) of the Federal Constitution. As such, the Judge found that the behaviour of the defendants was unacceptable, as it constituted discrimination against women by reason of pregnancy, which is prohibited by the provisions of CEDAW. This interpretation gives meaning to the Government’s obligation under CEDAW, namely, to condemn all forms of discrimination against women and pursue “by all appropriate means and without delay a policy of eliminating discrimination against women”.
Given this decision, it is an opportune time to revisit the ruling in the Beatrice Fernandez case, where issues of gender discrimination were also considered. The duty not to discriminate cannot rest solely with the Government. If gender discrimination is intolerable, it must be objectionable regardless of whether it is perpetrated by a public authority or a private entity.
Lim Chee WeePresidentMalaysian Bar
13 July 2011