Episode 24: Article 8: Gender Equality

Article 8 of the Federal Constitution, which upholds equality before the law, is highlighted in this law series as it explains the legal system in Malaysia that supports the equality concept. It explores the inclusion of gender as a protected category against discrimination in Article 8(2), but notes shortcomings in its practical application. The chapter also discusses gender inequality in Malaysia, including topics like workplace disparities and discrimination against pregnant women. It highlights significant court rulings that tackle gender discrimination and the evolving legal system, particularly concerning citizenship law. The government's initiatives to combat gender inequality, such as proposed amendments to citizenship provisions and the Anti-Sexual Harassment Act 2022, are also discussed.

1.0 Introduction to Article 8

Article 8 of the Federal Constitution embodies the profound principle of equality before the law, serving as the bedrock of justice within the legal framework. It resounds with the resolute proclamation that all individuals are to be regarded as equals when standing before the scales of justice and, therefore, are entitled to the hallowed sanctuary of equal protection under the law. However, this principle, while a beacon of fairness, is not an absolute mandate.

The first facet of Article 8(1) underscores that equality is a qualified concept, subject to the allowances and provisions of the law itself. In the realm of public authority, as expounded in Article 160, the dictum against discrimination is fervently upheld. Yet, the wielders of public authority possess the intricate power to craft laws that may be differentiated among individuals, albeit within the bounds of permissible grounds. Thus, the equilibrium between the equality and the law is a delicate one, where the law serves as both the guardian of equality and the instrument of discernment.

2.0 Article 8: Equality and Gender

The principle of equality stands as the cornerstone of human rights and has been characterized as the ‘foundation of all freedoms’. The concept of equality originates in Article 3 of the Universal Declaration of Human Rights (UDHR), which serves as the foundation for the international Bill of Rights. The bill includes the ICCPR, the ICESCR and the 1979 Convention on the Elimination of All Forms of Discrimination Against Women (CEDAW).

In a demonstration of Malaysia’s dedication to the principles of CEDAW, Article 8(2) underwent a significant amendment in July 2001, expanding its scope to encompass gender as a protected category against discrimination. This legislation more reflects Malaysia’s commitment to upholding gender equality and combating discrimination on the basis of gender. Article 8 of the Federal Constitution, though protective of genders, has notable shortcomings. Within the realm of Malaysian jurisprudence, the battle against gender inequality is a complex and evolving challenge. Despite the existence of a robust legal framework designed to safeguard gender equality and eliminate discrimination, the reality on the ground paints a different picture.

2.1 Unveiling Gender Inequality in Malaysia

2.1.1 Malaysia’s CEDAW Ratification Status Uncertain

In many jurisdictions around the world, pregnancy and maternity related adverse or unfavorable treatment is treated as sex or gender discrimination because it is associated with the sex or gender of a person. The current international acknowledgement in the EU, the UK, Canada and Australia, is that adverse treatment based on pregnancy and maternity is sex discrimination and that ‘reasonable accommodation’ should be made at the workplace for women’s biological capacity to reproduce.

In Malaysia, the ratification of CEDAW established it as a legal avenue for addressing discrimination issues. However, Malaysia’s ratification of CEDAW does not automatically apply it in domestic law due to its legal system. Aside from an amendment to art 8(2), there has been no direct legislation of CEDAW’s provisions. Malaysian courts have exhibited inconsistency in recognizing international human rights, particularly gender equality, although some academics and judges support the idea of considering Federal Constitutional rights as human rights.

To further justify, there has been a recent development by the High Court which made a ground-breaking decision where it clarified that CEDAW can help define discrimination under art 8(2) since Malaysian law lacks its definition. The High Court in the Noorfadilla case used CEDAW’s definition of discrimination, differing from the Federal Court’s stance on saying that the definition from UDHR was merely a declaratory instrument and therefore did not have the force of law in Malaysia and was not binding on member states of the UN. The High Court emphasized that CEDAW, being a convention, carries a legal weight and binds member states like Malaysia, obligating courts to consider Malaysia’s commitment under international conventions like CEDAW.

2.1.2 Workplace Gender Disparities

It is commonplace to come across job advertisements seeking potential employees of a certain race or, sometimes, job requirements can be coyly masked in the form of needing specific skill that may exclude certain classes of people. Every so often, we hear complaints from employees who believe they’ve faced unfair treatment, often due to factors like gender.

In November 2019, a report in a local newspaper exposed a troubling workplace policy in certain Malaysian hotel chains, where female employees were banned from wearing headscarves if they worked as front liners or directly interacted with the guests. This incident underscored the persistent issue of workplace discrimination, despite the constitutional guarantee of equality before the law as stated in Article 8 of the Federal Constitution of Malaysia. This instigates a contentious debate surrounding the question of whether the Federal Constitution affords protection against gender-based discrimination within the workplace.

The primary basis for this safeguard is derived from Article 8 of the Federal Constitution, which upholds the principle of equality. In the pivotal employment case of Beatrice Fernandez, the Federal Court established that Article 8 exclusively pertains to legislative bodies, government entities and Parliament, excluding its application to the private sector. Does this exclusion signify that employees within the private sector lack protection for their fundamental human rights regarding equal treatment?

Private sector interests find their legal safeguard within the purview of the Industrial Relations Act and the Employment Act (EA). Nevertheless, the scope of protection afforded by these legislative instruments remains circumscribed, thereby engendering legal ambiguity regarding the applicability of CEDAW and the provisions of Article 8 of the Federal Constitution, especially in contexts prone to gender inequality.

2.2 Impact of gender inequality

In the realm of legal discourse, recognizing and addressing the profound ramifications of gender inequality is imperative. Gender inequality weakens the marginalized in many areas such as health, education and business life. In the prospect of health, gender inequality takes a toll on mental well-being, resulting in heightened stress levels, increased anxiety, elevated rates of depression and higher prevalence of post-traumatic stress disorder (PTSD) among women. These adverse effects on mental health underscore the urgent need to address and rectify gender inequality within the legal framework as part of broader efforts to promote equality and justice for all genders.

Gender discrimination in education is a manifestation of gender inequality. It reflects the disparities in opportunities and treatment that individuals of different genders experience with a society. In the context mentioned, the concerns about the safety of daughters and the devaluation of girls’ education are indicative of the broader issue of gender inequality. This inequality not only limits girls’ access to education but also perpetuates stereotypes and societal norms that reinforce the unequal status of women and men. Consequently, addressing gender discrimination in education is a crucial step towards tackling and dismantling the larger problem of gender inequality.

Vigilance is necessary to prevent gender discrimination from taking root in Malaysia, a nation that upholds the principles of equality as a fundamental right embedded in its legal framework. This commitment shall be bolstered by Malaysia’s ratification to CEDAW.

3.0 Court Discussions around Gender Equality Development in Malaysia

The discussions on the matter of gender equality, specifically gender discrimination among women is not foreign in Malaysian Courts. Below are some of the cases that explore the scenarios of gender discrimination against women in different aspects such as the struggle of pregnant women to preserve their job and the struggle of Malaysian mothers in passing their citizenship to their child born overseas.

3.1 Discrimination to Pregnant Women is a Form of Gender Discrimination.

3.1.1 Beatrice a/p AT Fernandez v Sistem Penerbangan Malaysia & Ors [2005] 3 MLJ 681

This is one of the most notable cases that has an in-depth discussion on gender discrimination against pregnant women in the private sector in Malaysia. Beatrice, the appellant, is a flight stewardess who was terminated from her employment by the respondent upon becoming pregnant. She was terminated on the grounds of the collective agreement between the employer and a trade union, which required pregnant women to resign from employment and if she refused, the respondent had the right to terminate her services. Since Beatrice refused to resign, the respondent ended up terminating her employment from being a stewardess.

Because of the terms and conditions of the ‘collective agreement’, the appellant tried to argue that it is discriminatory against her as a pregnant woman and contravened with Article 8(2) of the Federal Constitution and should be void. However, the Court opined differently from the appellant. They believed that since this case involved disputes in private sectors, Article 8 is not applicable here and instead deals with contractual matters because Article 8 only deals with the infringement of individual rights by public authorities. Besides, there is also another issue arising regarding the status of the collective agreement as a law in context of Article 8(1). Again, the Court disagrees that Article 8 is inapplicable because the collective agreement is not a part of the ‘law’ as mentioned in Article 8(1) as it is a contractual agreement. Dismally, The Court did not mention anything about CEDAW in this case to examine whether the terms and conditions of the collective agreement discriminate against women’s rights. All in all, despite the amendment of Article 8(2), this amendment does not protect every woman from being discriminated against as it is still permitted within the private sectors.

3.1.2 Noorfadilla bt Ahmad Saikin v Chayed bin Basirun & Ors [2012] 1 MLJ 832

This is another prominent case on gender discrimination against pregnant women seeking jobs in Malaysia. The plaintiff, Noorfadilla, had her application and employment withdrawn as a Guru Sandaran Tidak Terlatih ('GSTT') due to her status as a pregnant woman. Explanation given by the defendant about her withdrawal of employment is because a pregnant woman would not be able to commit to her job due to health reasons and the period of recovery after the delivery would be too long. In short, it will be a hassle to the defendant if they hired a pregnant woman. Additionally, the defendant also cited the aforementioned case, Beatrice Fernandez to support their argument that Article 8 does not apply to a contractual relationship.

To discuss the current issue of whether the action of defendant withdrawing plaintiff’s employment due to being pregnant is in violation of Article 8(2), the Court has applied international law (CEDAW), as well as referring to Hansard to interpret the Constitution in regards to the word ‘gender’ in Article 8(2). In applying Article 1 (definition of ‘discrimination against women’) and 11 of CEDAW, the court declares that the withdrawal of employment in this case is gender discrimination. It is a well-known biological fact that only women have the ability to be pregnant and hence, it is still a part of discrimination towards women. Besides, to clarify the defendant's argument regarding the comparison between Beatrice Fernandez’s case and this current case, Zaleha Yusof J stated that the latter case is different from the current scenario because the defendants here are public authorities and therefore agents of the executive by virtue of Article 160 of the Federal Constitution. Whereas, the respondents of the latter case are from the private sector. Hence, Article 8 is still applicable in the present case. This decision is so vital in upholding justice of women's fundamental rights in Malaysia in regards to protection against discrimination in the public sector of service and employment.

3.2 Gender Discriminatory Citizenship Law

3.2.1 Mahisha Sulaiha Abdul Majeed v Ketua Pengarah Pendaftaran & Ors and another appeal [2022] 5 MLJ 194

This is another case that revolves around gender discrimination towards women, specifically Malaysian mothers with foreign husbands in applying for citizenship for their children. The appellant, Mahisha, has claimed that the word ‘father’ in Section 1(b) of Part II of the Second Schedule should be interpreted as a ‘mother’ too in granting citizenship. This case is highly debated among public and lawmakers, on the issue of ‘patriarchal’ nature of the current citizenship provision and whether it should be amended so it would not be discriminatory towards the mother.

Naturally, this case was not a unanimous decision from the court as there is a dissenting judgment by Nantha Balan JCA. Majority decision has agreed to dismiss Mahisha’s appeal and decided that there is no conflict between Article 8(2) and Article 14(1)(b) that needs to be read with Section 1(b) of the Part II of the Second Schedule. They are of the view that there is no reason for Article 8 to be given priority over Article 14(1)(b). However, Nantha Balan JCA differs that there is a conflict between these two provisions. He said it is clear that in Article 8(2) there should be no discrimination towards the blood descent of the mother in acquiring citizenship status for children who were born overseas. However, with Section 1(b), it only allows Malaysian fathers to pass their citizenship to their child born overseas but not for Malaysian mothers. He agreed with the appellant that the word ‘father’ should be read or include the word ‘mother’ as well.

As we can see, although the amendment on the Article 8(2) was made to prohibit gender discrimination, it is still unfortunately not thorough enough to resolve the issue that it was meant to fix. There are still loopholes in other provisions that let it discriminate against women indirectly, albeit whether these two provisions are actually conflicting with each other, is up for a debate as even the Court still could not reach the same consensus in this issue. Assuringly, this debate hopefully will lead to a better future for non-discriminating citizenship laws in the future and the amendment is still a strong foundation in upholding justice to Malaysian women.

4.0 Current initiatives the government has proposed to combat gender inequality

In combating gender inequality in Malaysia, there are several initiatives the government has proposed to ensure women’s right is to be protected.

4.1 Amendment of Citizenship Provisions

Finally, the discourse of citizenship provision might be put to end as the current Malaysia’s Cabinet has agreed for an amendment to citizenship provisions to be amended in achieving gender equality in citizenship cases. This decision has become a hope in the dark for Malaysian mothers that have been in a long battle for their children to acquire status as a Malaysian citizen. The government has proposed to replace the word ‘father’ in Section 1(b) of the Part II of the Second Schedule to the words “at least one of his parents”. This will automatically resolve the controversial context of the provision for being unfair towards Malaysian mothers. Moreover, this decision is also aligned with the UN experts’ call on the Malaysian government to fulfill their duty under CEDAW, in prohibiting discrimination against citizens based on their gender.

4.2 Anti-Sexual Harassment Act 2022

It is a well-known fact that women experienced sexual harassment more often on a daily basis and the trend has been increasing ever since. It has been reported that sexual harassment cases has been increased since 2020 to 2021 from 378 cases to 506 cases; and it involves both men and women. Besides, a survey conducted by Women’s Aid Organisation (WAO), reported that out of 1,010 women, 62% of them has experienced sexual harassment in workplace. Henceforth, this new Act has been enforced early this year in March 2023. By enforcing this act, it shows the seriousness from the government in regards to combating gender-based discrimination, in this case, sexual harassment. Hopefully, this Act may let the victims feel more at ease and provide a safer environment to citizens. Previously, this act had been passed both in the Dewan Rakyat and Dewan Negara on 20th July, 2022, and 11th August, 2022, respectively. Then, it was gazetted on 18th October, 2022 after receiving the royal assent by Yang Di-pertuan Agong (YDPA).

5.0 Conclusion

Based on the discussion above, we still have a long journey ahead in achieving gender equality in all aspects for Malaysia. As per the Global Gender Gap Index 2022, Malaysia was not even in the top 100 as we are being placed in rank 102 out of 146 countries, with a score of 0.682. Simply put, we are still so behind compared to other countries like one of our neighbors, Singapore with a ranking of 49 with a score of 0.734. However, in recent years, the government has shown great concern in achieving gender equality and proposed lots of initiatives to reduce gender-based discriminations as well as amending previous laws and developing new laws to protect the fundamental rights of women in Malaysia. Not only that, ratification of CEDAW that leads to major amendment of Article 8(2) to include the word ‘gender’ in it is such a good start that leads to a brighter future for equality for women. In conclusion, there should be more studies to be conducted on gender equality specifically in Malaysia demographic and it is to be recommended that the government could collaborate with women NGOs in developing more mature legislations to achieve gender equality.

REFERENCES

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[2] Mashood Baderin, International Human Rights and Islamic Law. (Oxford: Oxford University Press. 2003) p. 58 quoting Justice Tanaka in the South West Africa Cases [1966] ICJ Reports, p. 304

[3] International Covenant of Civil Political Rights

[4] International Covenant on Economic, Social and Cultural Rights

[5] [2017] 6 MLJ Ixx

[6] See footnote 5 above

[7] [2007] 6 CLJ i

[8] Noorfadilla Ahmad Saikin v Chayed Bin Basirun [2002] 1 MLJ 832

[9] Mohamad Ezambin Mohd Noor v Ketua Polis Negara & Other Appeals [2002] 4 MLJ 449

[10] Mohamad Ezam Mohd Noor v Ketua Polis Negara & Other Appeals [2002] 4 MLJ 449

[11] Azura Abas. (2017, Nov 16). The Ministry is keeping watch on the hijab-ban issue. New Straits Times. Retrieved from <https://www.nst.com.my/news/nation/2017/11/303990/ministry-keeping-watch-hijab-ban-issue-rohani.>. Site accessed on 29 September 2023.

[12] Beatrice A/P AT Fernandez v Sistem Penerbangan Malaysia & Ors [2005] 3 MLJ 681

[13] Nalina Santhiran. (2020, Dec 7). Legally Speaking - Workplace discrimination: What you need to know. The Sun. Retrieved from<https://www.thesundaily.my/business/legally-speaking-workplace-discrimination-what-you-need-to-know-IN5492129>. Site accessed on 26 September 2023.

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[15] Smriti Mishra. (2021, Apr 30). Gender Inequality in India – Causes and Effects. PSC NOTES.in. Retrieved from <https://pscnotes.in/gender-inequality-in-india-causes-and-effects/#:~:text=Effects%20of%20Gender%20Inequality%201%20Women%20and%20Health,Child%20marriage%20is%20rooted%20in%20gender%20inequality.%20>. Site accessed on 29 September 2023.

[16] See footnotes 12 above.

[17] See footnotes 12 above.

[18] Mahisha Sulaiha Abdul Majeed v Ketua Pengarah Pendaftaran & Ors and Another Appeal [2022] 5 MLJ 194

[19] Cue. (2023, February 18). Malaysia to allow automatic citizenship for children born overseas to Malaysian mums. The Straits Times. Retrieved from <https://www.straitstimes.com/asia/se-asia/malaysia-to-allow-automatic-citizenship-for-children-born-overseas-to-malaysian-mums> Site accessed on 30 September 2023.

[20] OHCHR. (n.d.). Malaysia: UN experts denounce gender-discriminatory citizenship law. Retrieved from <https://www.ohchr.org/en/press-releases/2022/09/malaysia-un-experts-denounce-gender-discriminatory-citizenship-law> Site accessed on 30 September 2023.

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[22] Dandavati, N. (2020). Women’s experiences and perceptions of sexual harassment demonstrate the urgent need for a sexual harassment act. Women’s Aid Organisation. Retrieved from <https://wao.org.my/womens-experiences-and-perceptions-of-sexual-harassment-demonstrate-the-urgent-need-for-a-sexual-harassment-act/> Site accessed on 30 September 2023.

[23] Bernama. (2023, March 28). Anti-Sexual Harassment Act enforced in phases from today. NST Online. Retrieved from <https://www.nst.com.my/news/nation/2023/03/893770/anti-sexual-harassment-act-enforced-phases-today> Site accessed on 30 September 2023.

[24] Global Gender Gap Report 2023. (2023, July 28). World Economic Forum. Retrieved from <https://www.weforum.org/reports/global-gender-gap-report-2023> Site accessed on 30 September 2023.