On 27/6/2013, at the Court of Appeal, the Malaysian government withdrew its appeal, and as such the High Court judgment stands.
NOORFADILLA AHMAD SAIKIN v. CHAYED BASIRUN & ORS
HIGH COURT MALAYA, SHAH ALAM
ZALEHA YUSOF J
[ORIGINATING SUMMONS NO: 21-248-2010]
Judgement
[1] Enclosure (1) of this originating summons is the plaintiff's application for inter alia, the following declarations:
(i) that with regard to the legal rights, status and character of a pregnant woman, namely the plaintiff (as of 12 January 2009), that the plaintiff was qualified and entitled to be appointed a "Guru Sandaran Tidak Terlatih" (GSTT);
(ii) that the action of the defendants on 12 January 2009 to withdraw and/or cancel the plaintiff's appointment as a GSTT is unconstitutional, unlawful and void.
Facts
[2]
The 1st and 2nd defendants were at the material time Education Officers
of the Education Office of the Hulu Langat District (PP DHL), in charge
of employing persons interested in the GSTT position for the Hulu
Langat District. The 3rd defendant was then the State Director of the
Education Department of Selangor. The Ministry of Education (the
Ministry) tried to overcome the problem of shortage of teachers in
Malaysia by employing untrained teachers, also known as GSTT. The
Ministry had previously issued a letter of approval (also known as a
warrant) to all State Directors of Education, authorizing them to elect
and employ GSST. The letter of approval/warrant states that the
employment of GSST is subject to the terms of "Pekeliling Perkhidmatan
Kementerian Pelajaran Malaysia Bil 1/2007" dated 27 February 2007 (the
circular). The circular states inter alia, as follows:
3. Taraf GST And GSTT
3.1 GST dan GSTT adalah bertaraf bukan kakitangan kerajaan. Oleh yang demikian mereka tidak layak mendapat apa jua faedah atau kemudahan seperti yang diterima oleh guru-guru tetap kecuali kemudahan-kemudahan seperti yang tersebut di perenggan 4 di bawah.4. Elaun dan Kemudahan yang layak diterima oleh GST dan GSTT
...6. Tempoh Perkhidmatan Guru-Guru Sandaran
4.1.1. Elaun bulanan berdasarkan tangga elaun yang diluluskan oleh Jawatankuasa Kabinet Gaji dan telah dilaksanakan melalui...
4.2. Kemudahan-Kemudahan yang tidak layak diperolehi oleh GST dan GSTT
...
4.2.2. Cuti Bersalin
...
...
6.2. Perkhidmatan GSST adalah juga berdasarkan sebulan ke sebulan dan akan tamat pada 31 Disember tahun berkenaan atau ditamatkan pada bila-bila masa apabila perkhidmatan mereka tidak dikehendaki lagi oleh Jabatan Pelajaran Negeri/Jabatan/Bahagian berkenaan mengikut yang mana lebih berkaitan dengan kepentingan perkhidmatan.
[3]
It is clear from the above that the employment of a GSTT is temporary
in nature, on a month to month basis and a GSTT is paid a monthly
allowance and may resign at any time.
[4] The plaintiff had
applied to PPDHL to be employed as a GSTT. The plaintiff had received a
call requesting her to attend an interview at PPDHL on 2 January 2009.
On the day the plaintiff attended the interview she was asked to fill up
certain forms before the interview. During the interview, questions
posed to the plaintiff included questions pertaining to her general
knowledge, personal details, problem solving skills and residential
address. Before and during the said interview, the plaintiff was not
asked whether she was pregnant or not. On 11 January 2009, the plaintiff
received a text message from a PPDHL officer. The text message is
reproduced as follows:
As'kum wbt... Berhubung permohonan GSTT, tuan/puan cik diminta hadir ke Blok B, Pejabat Pelajaran Daerah Hulu Langat pada hari Isnin 12 Januari 08 mulai dari pukul 8.00 pagi hingga 9.00 pagi untuk mendapatkan Memo Penempatan ke sekolah-sekolah. Sila berpakaian sesuai untuk ke sekolah. Walaubagaimanapun, bagi yang ada kelapangan pada hari ini, boleh juga berbuat demikian mulai dari pukul 11.00 pagi hingga 4.30 petang.
Tahniah dan terima kasih.
[5]
On 12 January 2009 at 8am, the plaintiff was present at PPDHL as
instructed. The plaintiff was given a "Memo Penempatan" (Placement Memo)
where it was stated that the plaintiff will be posted to "Sekolah
Menengah Kebangsaan Tinggi Kajang". It is pertinent to note that the
date the plaintiff was to have reported to the said school had passed,
ie, 5 January 2009. This means that as of 12 January 2009, there was
still a need for the plaintiff to fill the vacancy.
[6] The
plaintiff and a few others were then given a briefing on the terms of
service of employment such as the requirement to give one month's notice
for resignation. The plaintiff was also asked to report for duty
immediately.
[7] Subsequently, a PPDHL officer asked if
anyone was pregnant. The plaintiff and two others admitted that they
were pregnant. (The plaintiff at that time was three months pregnant).
The officer then withdrew the Placement Memo of the plaintiff.
[8]
Later, the plaintiff, through her husband wrote a number of e-mails to
the Ministry requesting for an explanation. On 17 February 2010 the
Ministry, ie, on behalf of the 4th and 5th defendants replied. The
Ministry relied on the circular to say that a pregnant woman cannot be
employed to the GSTT post because:
(i) The period between the time of delivery to full health is too long (two months).
(ii) A pregnant woman as a GSTT may not frequently be able to attend to her job due to various health reasons.
(iii) When she gives birth she needs to be replaced by a new teacher who will require further briefings.
(iv) A GSTT post cannot be filled with "replacement" teachers.
[9]
The Ministry added that the purpose of employing a GSTT is to help
overcome the shortage of teachers and not to add to the problem.
[10]
On 19 February 2009, the plaintiff through her solicitors wrote a
letter to the defendants demanding that her employment as GSTT be
restored immediately. There was no written reply to this letter until
today.
[11] Despite attempts, the parties have not been able to resolve this dispute.
[12] On 7 May 2010 the plaintiff filed this originating summons against the defendants.
Issue
[13]
The main issue here is whether the action/directive of the defendants
in refusing to allow pregnant women to be employed as GSTT is gender
discrimination in violation of art. 8(2) of the Federal Constitution.
[14]
There are, however, other issues which have been raised by the
defendants in their further submission ie, on the locus of the plaintiff
to bring this action and on whether declaration is a proper remedy. I
feel these other issues can be dealt with together before I deal with
the main issue.
Opinion
[15] It is the
defendants' contention that there is no binding contract between the
parties; therefore the plaintiff has not acquired a legal right as
against the defendants to grant her the locus standi to make this
application. To me, I agree with the plaintiff's argument that whether
there is a binding contract or not is not relevant as in the instant
case, the plaintiff is claiming that her right to be employed has been
affected by the defendants' decision which the plaintiff claims to be
contrary to art. 8(2) of the Federal Constitution. So, it is clear that what the plaintiff is seeking is to assert her right to a legal status which is in line with s. 41 of the Specific Relief Act 1950 (Act 137). Hence, declaration is a proper form of relief. Refer to the Supreme Court's decision in Teh Guan Teik v. Inspector-General of Police & Anor [1998] 3 CLJ 153 and the Federal Court's decision in YAB
Dato' Dr Zambry Abd Kadir & Ors v. YB Sivakumar Varatharaju Naidu;
Attorney-General Malaysia (Intervener) [2009] 4 CLJ 253.
'
[16]Section 41 of Act 137
however provides that no court shall make any such declaration where
the plaintiff, being able to seek further relief than a mere
declaration, omits to do so. If we look at encl. (1), the plaintiff is
not only seeking for declaratory orders but also for damages. As such to
me, it is dear that the plaintiff has also satisfied the proviso of s. 41 of Act 137.
[17]
I must state that at this stage, I have not given a decision as to
whether to grant the order sought by the plaintiff yet. All I am saying
is that a declaration is a proper remedy for this sort of cases.
[18] Now back to the main issue; art. 8(2) of the Federal Constitution provides inter alia,
that there shall be no discrimination on the ground only of gender in
the appointment of any office or employment under a public authority.
The word "gender" was added to art. 8(2) by the Constitution (Amendment)
(No. 2) Act 2001 (Act A1130), which came into force on 28 September
2001; to comply with Malaysia's obligation under the Convention on the
Elimination of All Forms of Discrimination against Women (CEDAW). This
is clearly illustrated in the Minister's speech in the Hansard for 2nd
and 3rd Reading of the Bill to amend the Constitution on 1 August 2001
at p. 69 as follows:
(Datuk Seri Utama Dr. Rais bin Yatim): Tuan Yang Di-Pertua, Yang Berhormat bagi Kepong, saya suka menyatakan telah mengambil dua aspek penting. Salah satu daripadanya ialah dari segi bahasa yang satu lagi dari segi peristilahan diskriminasi. Secara am izinkan saya menjawab bahawa pandangan Yang Berhormat berkaitan dengan penggunaan bahasa yang betul dan juga cara olahan sintaksis ataupun susunan bahasa itu perlu mengikut susunan yang diterima dan tidak lagi seperti yang dikritik oleh sesetengah pihak perlu diterima dengan baik dan saya ingat atas pantun burung murai dan sebagainya itu dalam pada demikian beliau menanyakan adakah diskriminasi yang disifatkan CEDAW itu merupakan sesuatu yang telah dikemaskinikan.
Saya maklum tentang konvensyen tersebut dan Malaysia sebagai salah satu daripada anggota konvensyen CEDAW pada tahun 1995 memang akur kepada keputusan tersebut dan memasukkan perkataan "jantina" dalam Perkara 8(2) ini adalah sedekat-dekat mungkin bagi kita memberi penjelasan dan kesempurnaan kepada tuntutan CEDAW itu.
[19] Further at p. 70, the Minister said:
Tentang CEDAW sebentar tadi, biar saya bacakan sedikit petikan daripada The Convention on the Elimination of all forms of Discrimination Against Women. Atau secara ringkasnya The CEDAW Convention. Dia kata di sini, "Malaysia has become a party in 1995". Keadaan sedemikian juga Artikel menyatakan bahawa pihak-pihak yang berkenaan mempunyai tanggungjawab supaya menampilkan pandangan serta konsep bahawa wanita tidak didiskriminasikan. Atas tujuan itu kita telah berjaya pada hari ini dan yang Menteri Pembangunan Wanita dan Keluarga telah tiga kali menyebut peruntukan ini supaya kerajaan mengambil perhatian sekiranya pihak pembangkang merasa bahawa dengan keikhlasan Perdana Menteri mewujudkan kementerian ini ada faedahnya. Sekurang-kurangnya perkataan terima kasih dan penghargaan itu harus kita kemukakan kepada beliau. [Tepuk]
[20]
The gist of the plaintiff's complaint is that the GSTT post was revoked
and withdrawn by the defendants on the sole ground that the plaintiff
was pregnant. The question here is whether this action of the defendants
tantamounts to gender discrimination and therefore against art. 8(2) of the Federal Constitution?
[21] As has been stated earlier, the word "gender" was incorporated into art. 8(2) of the Federal Constitution
in order to comply with Malaysia's obligation under the CEDAW. It is to
reflect the view that women are not discriminated. Article 1 of CEDAW
defines "discrimination against women" as any distinction, exclusion or
restriction made on the basis of sex which has the effect or purpose of
impairing or nullifying the recognition, enjoyment or exercise by women,
irrespective of their marital status, on a basis of equality of men and
women, of human rights and fundamental freedoms in the political,
economic, social, cultural, civil or any other field.
[22]
Further, Article 11(1)(b) of CEDAW provides that state parties shall
take all appropriate measures to eliminate discrimination against women
in the field of employment in order to ensure, on a basis of equality of
men and women, the same rights, in particular the right to the same
employment opportunity, including the application of the same criteria
for selection in matters of employment. In Article 11(2) (a) of CEDAW,
it provides that State Parties shall take appropriate measures to
prohibit, subject to the imposition of sanctions, dismissal on the
grounds
inter alia, of pregnancy.
[23] According to the
Depository Notification dated 28 July 2010 by Malaysia, the only
reservation on CEDAW now is confined to Article 9(2), 16(1)(a), 16(1)(f)
and 16(1)(g). It also makes a declaration that in relation to art. 11
of the Convention, Malaysia interprets the provision of this article as a
reference to the prohibition of discrimination on the basis of equality
between men and women only. Mr Andrew Khoo the learned counsel from
Suhakam explains, that this is because there are some countries
promoting what is called a third gender. Hence, the declaration does not
detract at all from Malaysia's whole obligation on Article 11 of CEDAW.
[24] But the question now, can this court refer to CEDAW in clarifying the term "equality" and gender discrimination under art. 8(2) of the Federal Constitution? In Mohamad Ezam Mohd Noor v. Ketua Polis Negara & Other Appeals [2002] 4 CLJ 309 at p. 386, Siti Norma FCJ when discussed the application of Universal Declaration of Human Rights 1948 said as follows:
In my opinion, the status and the weight to be given to the 1948 Declaration by our Courts have not changed. It must be borne in mind that the 1948 Declaration is a resolution of the General Assembly of the United Nations and not a convention subject to the usual ratification and accession requirements for treaties.... Since such principles are only declaratory in nature, they do not, I consider, have the force of law or binding on member states. If the United Nations wanted those principles to be more than declaratory, they could have embodied them in a convention or a treaty, to which member states can ratify or accede to and those principles will then have the force of law.
[25] CEDAW is not a mere declaration. It is a convention. Hence, following the decision of the Federal Court in Mohamad Ezam 's case (supra),
it has the force of law and binding on members states, including
Malaysia. More so that Malaysia has pledged its continued commitments to
ensure that Malaysian practices are compatible with the provision and
principles of CEDAW as evidenced in the letter from the Permanent
Mission of Malaysia to the Permanent Missions of the Members States of
the United Nations dated 9 March 2010.
[26] In 1988, there
was a high level judicial colloquium on the Domestic Application of
International Human Rights Norms (the Colloquium) in Bangalore, India.
The Chief Justice of Malaysia at that time was one of the participants
of the Colloquium. One of the outcomes of the Colloquium was the
Bangalore Principles. It set out values and principles that judges
should adhere to in carrying out their duties. Of particular relevance
here is:
Value 5: Equality
Principle: Ensuring equality of treatment to all before the courts is essential to the due performance of the judicial office.
Application:
5.1. A judge shall be aware of, and understand, diversity in society and differences arising from various sources, including but not limited to race, colour, sex, religion, national origin, caste, disability, age, marital status, sexual orientation, social and economic status and other like causes ("irrelevant grounds").
5.2. A judge shall not, in the performance of judicial duties, by words or conduct, manifest bias or prejudice towards any person or group on irrelevant grounds.
5.3. A judge shall carry out judicial duties with appropriate consideration for all persons, such as the parties, witnesses, lawyers, court staff and judicial colleagues, without differentiation on any irrelevant ground, immaterial to the proper performance of such duties.
[27] The Convenor of the Colloquium summarized the discussions, inter alia, as follows:
7. It is within the property nature of judicial process and well established judicial functions for national courts to have regard to international obligations which a country undertakes - whether or not they have been incorporated into domestic law - for the purpose of removing ambiguity or uncertainty from national constitutions, legislation or common law.
[28] Hence, it has
become the obligation of this court to have regard to Malaysia's
obligation under CEDAW in defining equality and gender discrimination
under art. 8(2) of the Federal Constitution.
[29]
In 2005, more commitments were made by Malaysia in the Putrajaya
Declaration and Programme of Action on the Advancement of Women in
Member Countries of the Non-Aligned Movement. Among them were as
follows:
4. Recognise the need for full and accelerated implementation of the United Nations Convention on the Elimination of All Forms of Discrimination against Women by States parties to the Convention:
...43. Gender mainstreaming in all legislation, policies, and programmes is an essential process to women's empowerment and their full participation in all spheres of society. It facilitates the integration of women's differing experience and needs into the development process, as well into the society and helps to change the negative social norms that discriminate against women. NAM member states recognise that effective gender mainstreaming is critical to the empowerment of women and to the achievement of gender equality.
16(m). Strengthen the incentive role of the public sector as employer to develop an environment that effectively affirms and empowers women;
16(p). Facilitate the creation of sustainable jobs and livelihood opportunities to improve women's position in the labour market and ensure favourable working conditions for all women, including migrant women, consistent with all their human rights;
...
44. We hereby commit ourselves to:
a) Take all necessary measures, including in the area of law, policy, programme and activities to eliminate discrimination against women within public and private sectors;
b) Implement affirmative actions, where needed, to accelerate de facto equality rights of women in all spheres;
c) Raise awareness about women's right to equality and the importance of women's participation and representation in all spheres and at all levels in order to eliminate obstacles to women's equality.
[30] To me, in interpreting art. 8(2) of the Federal Constitution,
it is the court's duty to take into account the Government commitment
and obligation at international level especially under an international
convention, like CEDAW, to which Malaysia is a party. The court has no
choice but to refer to CEDAW in clarifying the term "equality" and
gender discrimination under art. 8(2) of the Federal Constitution.
[31] In Australia in the case of Minister for Immigration and Ethnic Affairs v. Teoh [1995] 128 ALR 353 Mason, CJ, speaking for himself and Deane, J, said:
It is well established that the provisions of an international treaty to which Australia is a party do not form part of Australian law unless those provisions have been validly incorporated into our municipal law by statute. (Chow Hung Ching v. The King [1948] 77 CLR 449; Bradley v. The Commonwealth [1973] 128 CLR 557; Simsek v. Macphee Koowarta v. Bjelke-Peterson [1982] 148 CLR 636; 40 ALR 61; Kioa v. West [1985] 159 CLR 550; Dietrich v. The Queen [1992] 177 CLR 292; J.H. Rayner Ltd v. Department of Trade [1990] 2 AC 418). This principle has its foundation in the proposition that in our constitutional system the making and ratification of treaties fall within the province of the Executive in the exercise of its prerogative power whereas the making and the alteration of the law fall within the province of Parliament, not the Executive. (Simsek v. Macphee [1982] 148 CLR, at 641-642). So, a treaty which has not been incorporated into our municipal law cannot operate as a direct source of individual rights and obligations under that law. In this case, it is common ground that the provisions of the Convention have not been incorporated in this way. It is not suggested that the declaration made pursuant to s. 47(1) of the Human Rights and Equal Opportunity Commission Act has this effect.
[32] But the
fact that the Convention has not been incorporated into Australian Law
does not mean that its ratification holds no significance for Australian
law. Where a statute or subordinate legislation is ambiguous, the
courts should favour that construction which accords with Australia's
obligations under a treaty or international convention to which
Australia is a party (Chu Kheng Lim v. Minister for Immigration
[1992] 176 CLR 1), at least in those cases in which the legislation is
enacted after, or, in contemplation of, entry into, or ratification of,
the relevant international instrument. That is because Parliament, prima facie, intends to give effect to Australia's obligation under international law.
[33]
It is accepted that a statute is to be interpreted and applied, as far
as its language permits, so that it is in conformity and not in conflict
with the established rules of international law (Polites v. The Commonwealth).
[34]
Apart from influencing the construction of a statute or subordinate
legislation, an international convention may play a part in the
development by the courts of the common law. The provisions of an
international convention to which Australia is a party, especially one
which declares universal fundamental rights, may be used by the courts
as a legitimate guide in developing the common law...
[35]
But the courts should act in this fashion with due circumspection when
the Parliament itself has not seen fit to incorporate the provisions of a
convention into our domestic law. Judicial development of the common
law must not be seen as a back door means of importing an unincorporated
convention into Australian law. A cautious approach to the development
of the common law by reference to international conventions would be
consistent with the approach which the court have hitherto adopted to
the development of the common law by reference to statutory policy and
statutory materials (Lamb v. Cotogno [1987] 164 CLR 1 at 11-12).
Much will depend upon the nature of relevant provision, the extent to
which it has been accepted by the international community, the purpose
which it is intended to serve and its relationship to the existing
principles of our domestic law.
[36] It is also pertinent that in India in the case of Vishaka v. State of Rajasthan
AIR [1997] SC 3011, the court when interpreting the Indian Constitution
had emphasized the obligation of the Indian Government in two other
international statements:
(a) the Beijing Statement of Principles of the Independence of the Judiciary in the LAWASIA Region, where the principles of the independence of the judiciary were accepted by the Chief Justice of India, and
(b) Fourth World Conference on Women in Beijing where the Government of India had made an official commitment.
[37] In Vishaka 's case (supra), Teoh 's case (supra)
was applied. It must also be noted that Malaysia is also a party to the
Beijing Statement and Fourth World Conference on Women in Beijing.
[38]
Article 26 of the Vienna Convention on the Law of Treaties 1969
provides that every treaty in force is binding upon the parties to it
and must be performed by them in good faith. CEDAW is without doubt a
treaty in force and Malaysia's commitment to CEDAW is strengthened when art. 8(2) of the Federal Constitution
was amended to incorporate the provisions of CEDAW which is not part of
the reservation, ie, to include non-discrimination based on gender. As
such, I am of the opinion that there is no impediment for the court to
refer to CEDAW in interpreting art. 8(2) of the Federal Constitution.
Hence, applying art. 1 and 11 of CEDAW I hold that pregnancy in this
case was a form of gender discrimination. The plaintiff should have been
entitled to be employed as a GSTT even if she was pregnant. Further,
the plaintiff was pregnant because of her gender. Discrimination on the
basis of pregnancy is a form of gender discrimination because of the
basic biological fact that only women have the capacity to become
pregnant. Refer to the decision of the Supreme Court of Canada in Brooks v. Canada Safeway Ltd [1989] 59 DLR (4th) 321 where it was held as follows:
It cannot be disputed that everyone in society benefits from procreation. The Safeway Plan, however, places one of the major costs of procreation entirely upon one group in society; pregnant women. Thus, in distinguishing pregnancy from all other health related reasons for not working, the plan imposes unfair disadvantages on pregnant women. In the second part of this judgment I state that this disadvantage can be viewed as a disadvantage suffered by women generally. That argument further emphasizes how a refusal to find that Safeway Plan discriminatory would undermine one of the purposes of anti-discrimination legislation. It would do so by sanctioning one of the most significant ways in which women have been disadvantaged in our society. It would sanction imposing a disproportionate amount of the costs of pregnancy upon women. Removal of such unfair impositions upon women and other groups in society is a key purpose of anti-discrimination legislation. Finding that the Safeway Plan is discriminatory furthers this purpose.
[39] It
has been argued by the defendants that by applying the principle of
reasonable classification, it is justified to discriminate pregnant
women. However, with due respect, the principle of reasonable
classification is only applicable to art. 8(1) and does not apply to art. 8(2) of the Federal Constitution. This is clearly explained in PP v. Datuk Harun Haji Idris & Ors [1976] 1 LNS 180 as follows:
Article 8(2) contains a specific and particular application of the principle of equality before the law and equal protection of the law embodied in Article 8(1). Therefore, discrimination against any citizen only on the grounds of religion, race, descent or place of birth or any of them in any law is prohibited under Article 8(2) and such discrimination cannot be validated by having recourse to the principle of reasonable classification which is permitted by Article 8(1) (Srinivase Aiyar v. Saraswathi Ammar AIR [1952] Mad 193 195 at page 195; Kathi Raning Rawat v. State of Saurashtra AIR [1952] SC 123 at page 125).
[40]
It has also been argued on behalf of the defendants that the decision
not to employ a pregnant woman for GSTT is a policy consideration and
the court ought not to review or question it. The defendants cite inter alia the cases of R. Rama Chandran v. The Industrial Court of Malaysia & Anor [1997] 1 CLJ 147, C.C.S.U v. Minister of Civil Service [1994] 3 All ER 935 and Kumpulan Perangsang Selangor Bhd v. Zaid Mohd Noh [1997] 2 CLJ 11.
I totally agree that the court should not be involved in the policy
decision of the government. However, in this instant case, the argument
of policy consideration, to my mind, is an afterthought, as, if it is
that important, why was this not incorporated into the circular or
raised during interview as submitted by the learned counsel for the
plaintiff? I would only accept that para. 4.22 of the circular is a
policy consideration and the court therefore must not review it.
[41]
It is very clear that the contract for GSTT is a month to month
contract and it can be terminated at any time. Even after one month of
working, there is no guarantee that the person will stay even if she is
not pregnant. As such I find there is no merit in the argument put
forward by the defendants that employing a pregnant woman to fill up the
post will defeat the purpose of GSTT to solve the problem of shortage
of teachers in Malaysia. Even medical check-up for pregnant women will
not disturb the school time as it can be done in the evening or night.
[42]
I also note, even the circular does not specifically prohibit a
pregnant woman from applying for the post. It merely states that a GSTT
is not entitled to maternity leave. If that is the case, is that not
indirectly saying that pregnant women could apply only that they are not
entitled to maternity leave? To me, that provision in the circular
supports the argument that a pregnant woman can be engaged for GSTT.
[43] It is also the defendants' submission that based on the Federal Court's decision in the case of Beatrice AT Fernandez v. Sistem Penerbangan Malaysia & Anor [2005] 2 CLJ 713, art. 8 of the Federal Constitution does not apply to a contractual relationship. With due respect, what was held in Beatrice 's case (supra) inter alia, is as follows:
To invoke Article 8 of the Federal Constitution, the applicant must show that some law or action of the Executive discriminates against her so as to controvert her rights under the said article. Constitutional law, as a branch of public law, deals with contravention of individual rights by the Legislative or the Executive or its agencies....
[44] By virtue of art. 160 of the Federal Constitution,
the defendants are definitely public authorities and therefore agents
of the Executive. To me, the defendants' act of revoking and withdrawing
the Placement Memo because the plaintiff was pregnant constitute a
violation of art. 8(2) of the Federal Constitution. It was the contravention of the plaintiff's rights by the defendants as agents of the Executive. As such, the requirement of Beatrice 's case has been fulfilled.
Conclusion
[45] The Supreme Court in Teh Guan Teik v. Inspector General of Police & Anor [1998] 3 CLJ 153 had quoted Lee Hun Hoe CJ in Datuk Syed Kechik Syed Mohamed v. Government of Malaysia & Anor [1978] 1 LNS 44
that the court's jurisdiction to make a declaratory order is unlimited
subject only to its own discretion. In my opinion, the court has a role
to promote the observance of human rights in this country. On the
grounds I have indicated above, the application must be allowed except
for prayer 3. As this is a public interest case, I make no order as to
costs.
12 JULY 2011
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