Article 8: Equality

 

Does equality really exist in Malaysia? Are men and women being treated fairly?

 

This issue is related to the Federal Constitution, Fundamental Liberties that falls under Article 8, Equality. Article 8(1) states that ‘All persons are equal before the law and entitled to the equal protection of law’. Besides, Article 8(2) states that ‘except as expressly authorized by this Constitution, there shall be no discrimination against citizens on the ground only of religion, race, descent, place of birth or gender in any law or in the appointment to any office or employment under a public authority or in the administration of any law relating to the acquisition, holding or disposition of property or the establishing or carrying on of any trade, business, profession, vocation or employment’. However, according to Article 8(5), it does not invalidate or prohibit in any provision regulating personal law or practice restricting office or employment.

 

According to the case of [Beatrice A/P At Fernandez v Sistem Penerbangan Malaysia & Ors [2005] 3 MLJ 681], the applicant, Beatrice was a Grade B flight stewardess who had 11 years of service with the MAS airline. There are terms and conditions of service of an applicant which were governed by a collective agreement between Malaysia Airlines System Employees Union (MASEU) and their employees that requires the air stewardess to resign or even face the termination if she got pregnant. However, the applicant refused to resign so her services had been terminated by MAS Airline. She appealed to Federal Court but she did not success because Article 8 does not apply in her case since she has signed a collective agreement which is a private law and Article 8 does not apply to private law as stated in Article 8(5).

 

 

 

 

 

However, in another case, [Noorfadilla bt Ahmad Saikin v Chayed bin Basirun [2012] 1

MLJ 832], the plaintiff, Noorfadilla bt Ahmad Saikin had accepted the letter of offer to

be a temporary teacher in a government school in 2009. When she admitted that she

was pregnant, the offer was retracted by the officer in charge. Noorfadilla then filed

anapplication in High Court on the basis that the revocation of offer due to pregnancy

is a form of gender discrimination as stated in Article 8(2). Besides, she also referred to

Article 11 of Convention on the Elimination of All Forms of Discrimination Against

Women (CEDAW) that sets out the rights of women to work, and that pregnancy

cannot be used as an excuse to stop women from working. In the end, High Court

granted Noorfadilla RM300,000 in damages which means that she has won the case.

 

 

 

 

 

 

 

In conclusion, it is clear that Malaysia do apply gender equality as clearly stated in

Article 8(2) of Federal Constitution as shown in Noorfadilla's case, but it is only up

to a certain extent as this Article does not apply to personal/private law as stated

in Article 8(5) as shown in Beatrice's case. When a personal/private law is involved

, the government should restrict the employer's power to force their female

employees to resign or being terminated when she is found pregnant. Instead,

the female employees should be provided adequate maternity leave or switched

for an easier and less tiring working position.