MALAYSIA: Woman wins RM300,000 in landmark case on discrimination over pregnancy

Woman wins RM300,000 in landmark(from left) Noorfadilla Ahmad Saikin, lawyer Honey Tan, pupil Arina Ong, Noorfadilla’s husband Izwan, and lawyer Joachim Xavier, after the judgement at the Shah Alam High Court. — Picture courtesy of Honey TanKUALA LUMPUR, Nov 10 — In a landmark case, the Shah Alam High Court today awarded a woman RM300,000 in damages for breach of her constitutional right to gender equality after the government refused to employ her as a temporary teacher when she became pregnant.
The government was ordered to pay 32-year-old Noorfadilla Ahmad Saikin RM12,907.68 for loss of earnings, RM2,296.10 for loss of EPF (Employees Provident Fund), RM912.71 for loss of EPF dividends, as well as RM25,000 for pain and suffering, and RM5,000 in costs.

“It is one small step for Noorfadilla, but one giant leap for women’s rights in Malaysia,” Noorfadilla’s lawyer Honey Tan told Malay Mail Online.
“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,” she added.
Tan said the court had awarded Noorfadilla, a homemaker with four children, damages for breach of Article 8(2) of the Federal Constitution that prohibits gender discrimination.
Noorfadilla sued the government in 2010 after Hulu Langat district education officers revoked her appointment in 2009 as a temporary teacher on a month-to-month basis upon discovering her pregnancy.

The Shah Alam High Court ruled in 2011 that the government had discriminated against Noorfadilla and, in a landmark decision, held that the United Nations’ Convention on the Elimination of All Forms of Discrimination against Women (Cedaw) had the force of law in Malaysia as the country had acceded to the human rights treaty in 1995.

Tan said the government appealed against the High Court decision but withdrew it at the last minute. The Court of Appeal then ordered RM5,000 in costs.
The lawyer also noted that while Noorfadilla had won her case against the government, Malaysian courts refuse to hold private actors like companies liable for breach of constitutional rights, referring to the Beatrice Fernandez case in which a former Malaysia Airlines flight stewardess sued the airline when it fired her after she became pregnant and refused to resign.

“To date, the courts are following the decision in Beatrice Fernandez that held that citizens can only bring a claim for breach of constitutional rights if the party doing the discrimination is a public authority,” said Tan.

“In this respect, Malaysia is failing in its due diligence duty to ensure that private actors be punished, and to enable claimants to be compensated for such breaches,” she added.

In 2005, the Federal Court upheld the Court of Appeal’s decision in the Beatrice Fernandez case that the Federal Constitution protected one’s fundamental rights from being violated only by the state.