CAN GENDER EQUALITY BECOME A LIVING REALITY IN MALAYSIA?
In this century, gender equality had become a trend. Article 8(2) of the Federal Constitution states that there shall be no discrimination against citizens on the ground only of religion, race, descent, place of birth or gender. However, does Malaysia practices gender equality perfectly?
In the case of Beatrice A/P At Fernandez v Sistem Penerbangan Malaysia & Ors [2005], the plaintiff was as a flight stewardess and was bound by a collective agreement. The first respondent terminated her service because she broke the provisions of the collective agreement as she refused to resign when she was pregnant. Therefore, she brought this case to court and argued that the collective agreement void because the provisions of the collective agreement were discriminatory and therefore contravened article 8 of the Federal Constitution. In this case, the plaintiff has no hope of success because the 'law' in article 8 does not include a collective agreement. Next, the amendment to the Article 8(2) which added the word "gender" to that provision only took effect from 28 September 2001.
On the other hand, in the case of Noorfadilla bt Ahmad Saikin v Chayed bin Basirun & Ors [2012], the plaintiff applied for and obtained employment as a temporary teacher. The post offered to her was revoked because she was pregnant. This act of the defendants was tantamount to gender discrimination and thus against article 8(2) of the Federal Constitution. The defendant was ruled it against the Article 8(2) because of the amendment. Besides, the ‘law’ in article 8 applied in this case because the defendant is indisputably public authorities, and agent of executive.
These two cases carry the similarity. Both plaintiffs undergo gander discrimination because of pregnancy. However the justifications of these two cases are totally differences. Therefore, Malaysia does not implement gender equality perfectly because the ‘law’ of article 8 does not cover collective agreement in private sector.
In the case of Beatrice A/P At Fernandez v Sistem Penerbangan Malaysia & Ors [2005], the plaintiff was as a flight stewardess and was bound by a collective agreement. The first respondent terminated her service because she broke the provisions of the collective agreement as she refused to resign when she was pregnant. Therefore, she brought this case to court and argued that the collective agreement void because the provisions of the collective agreement were discriminatory and therefore contravened article 8 of the Federal Constitution. In this case, the plaintiff has no hope of success because the 'law' in article 8 does not include a collective agreement. Next, the amendment to the Article 8(2) which added the word "gender" to that provision only took effect from 28 September 2001.
On the other hand, in the case of Noorfadilla bt Ahmad Saikin v Chayed bin Basirun & Ors [2012], the plaintiff applied for and obtained employment as a temporary teacher. The post offered to her was revoked because she was pregnant. This act of the defendants was tantamount to gender discrimination and thus against article 8(2) of the Federal Constitution. The defendant was ruled it against the Article 8(2) because of the amendment. Besides, the ‘law’ in article 8 applied in this case because the defendant is indisputably public authorities, and agent of executive.
These two cases carry the similarity. Both plaintiffs undergo gander discrimination because of pregnancy. However the justifications of these two cases are totally differences. Therefore, Malaysia does not implement gender equality perfectly because the ‘law’ of article 8 does not cover collective agreement in private sector.
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