Written by Aidila Razak for Malaysiakini.
The Shah Alam High Court will decide on July 5 if the government committed gender-based discrimination by revoking the placement of a relief teacher upon learning that she was pregnant.
Justice Zaleha Yusof fixed the date after a hearing in chambers today, on the civil suit against the government – the first of its kind in the country.
According to Honey Tan, lawyer for plaintiff Norfadilla Ahmad Saikin, the suit was filed on the basis that Malaysia is a signatory to the United Nations Convention of the Elimination of all Forms of Discrimination against Women (Cedaw).
“One of our main issues is to seek a definition of ‘gender discrimination’ because there is no such definition adopted by Malaysian judges yet, and we are trying to use Cedaw for this purpose,” she said when met.
The Cedaw expressly states that governments must “take appropriate measue…to prohibit the imposition of sanctions and dismissals on the grounds of pregnancy or of maternity leave”.
Noorfadilla, 29, also cited Article 5 (the right to liberty) of the federal constitution and 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’.
She is seeking a declaration that pregnancy cannot be used as an excuse to not employ a person as a untrained relief teacher (GSTT) and the revocation of the memo on her placement to be declared illegal and unconstitutional.
The memo for the month-to-month contract was revoked at a Hulu Langat District education briefing session for newly recruited GSTT, when the ministry found out she was pregnant.
According to her husband, Mohd Izwan Zakaria – who represented his wife today as she has just delivered their third child – Noorfadilla was called out during the briefing and “humiliated” for being pregnant.
“The (Hulu Langat district education officer) asked those who were pregnant to come forward. My wife and two others did. He then took away their placement memos,” he said.
Mohd Izwan said the officers had claimed that they were acting according to a 2007 circular which states that pregnant women cannot be hired as GSTT.
However, the circular sighted by Malaysiakini only states that GSTT are not entitled to maternity leave.
“One of the women who was called to the front with my wife was eight months pregnant and the job interview had been conducted within the previous month.
“Surely (the interviewer) would have seen that she was pregnant, so why was she offered a job?” he asked.
When he pursued the matter further, the Education Ministry informed him that it could not hire pregnant women because teachers need to be involved in co-curricular activities, which involve sports.
Named as respondents are Hulu Langat District education ministry officers Chayed Basirun and Ismail Musa, their department head Zahri Aziz, the director-general of the Education Ministry, the education minister and the government.
The suit is a test case assisted and led by the Malaysian Centre for Constitutionalism and Human Rights, in which co-counsel Edmund Bon is a campaigner. Also representing Noorfadilla is Shahredzan Johan.
Federal counsels Wan Roslan Wan Ismail and Aida Adha Abu Bakar are appearing for the respondents.
‘Rights are not conditional’
Also present today was lawyer Andrew Khoo and human rights commissioner Detta Samen who held a watching brief for the Human Rights Commission of Malaysia, which deems the case to be “of public interest”.
Khoo said that, while there are no specific laws on gender discrimination, the amendment to the constitution in 2001 to include gender in Article 8, based on Cedaw, shows the intention.
“We would prefer a specific law, but the rights of Malaysians should not be ignored just because the government has not been proactive on this,” he said.
Commenting on the case, Association of Women Lawyers Meera Samanther said Noorfadilla was denied her equal right to work and earn a living, which should not be conditional.
“(She) was denied her right solely because she was pregnant and this is discrimination,” she said when met today.
In a joint statement, the Joint Action Group for Gender Equality called on the government and society to acknowledge maternity “as a vital social function”.
“(We) call on employers to recognise that they are duty-bound to accommodate pregnant women and not dismiss employees or prospective employees on the basis of pregnancy,” the group said.
This article was originally posted by malaysiakini.com on 20 June 2011. Click to view original here.