The Fight to End Discrimination against Women
- Lau Zher Tung
- Jan 12, 2018
- 4 min read
'Discrimination’ means the practice of treating somebody or a particular group in society less fairly than others.[1] It happens in many ways, namely, ethnicity, races, gender, age, education, employment and so forth. Throwing back to the olden days, where people were still uncivilised and undeveloped, it was well-known to be shameful of having daughters. Girls were not allowed to walk out from the house, not even allowed to be educated in school like boys because their concept was that, girls were supposed to stay at home helping in household chores, marrying at young age and giving birth to the continuance of human populations. Historically, women had been excluded from politics and governance affairs.
In the current world, there is still discrimination against women. Gender discrimination at workplace is the most common type of discrimination, there are problems concerning the wage gap because women often receive less salary than men for the same work. Nonetheless, when it comes to workforce, the Article 11 of the Convention on the Elimination of All Forms of Discrimination Against Women stated that women should not be discriminated when it comes to workforce, women have the right to work, the right to the same employment opportunities, the right to free choice of profession, and the right to equal remuneration.[2] Unfortunately, in England, Northumberland County FA vice president, John Cummings made a comment that stun Lucy May. May was told that a woman will never referee on the FA league because woman would not be able to handle it. Furthermore, he emphasized to May by saying “A woman’s place is in the kitchen, and not on a football field”.[3]
Besides, “glass ceiling” problem can be seen when women are set by artificial barriers when it comes to promotions.[4] Most of the time, women are less likely to be promoted to a higher post even when she is at the same stand with a male colleague. People actually fail to realize the fact that women’s lower labour force participation and higher unemployment lead to economic loss and inequality. Worse still, both the Employment Act 1955 and the Industrial Relations Act 1967 provided a very minimal relief which results in poor legal protection. In fact, there is no legislation which is able to protect women against discrimination at the workplace specifically.[5]
It is worth note that Article 8 of the Federal Constitution was amended to include gender as one of the elements to be protected from discrimination in 2001. However, despite the amendment, there was an issue that arose where it stated ‘women are most likely to be fired for being pregnant’, which can be illustrated clearly in Beatrice Fernandez v Sistem Penerbangan Malaysia & Anor[6], where the plaintiff was hired as an air stewardess but was dismissed when she became pregnant. There was a collective agreement between the plaintiff and her employer in which there were two possible situations which were resignation or termination if an air stewardess got pregnant. It was held that an employee is legally dismissed for getting pregnant.
Fortunately, the harshness of the decision in Beatrice’s case was tempered in Noorfadilla Ahmad Saikin v Chayed bin Basirun & Ors[7], her appointment as a temporary teacher was revoked because she was pregnant. She was awarded RM300,000 in damages for breach of her constitutional right. Then, the government appealed against the amount and the amount was reduced by nearly 90% to RM30,000. The Court of Appeal retained the original amount and added an additional RM10,000 for “pain and suffering”. In September 2017, the Federal Court granted leave to appeal for both parties to assess the criteria the court should consider when giving damages for breach of constitutional rights. The Employment Act was amended in 2012 to strengthen the provisions for “maternity protection”.[8] Concerning the dismissal, the Act only prohibits the employers from terminating employees during the period of maternity leave and after the maternity leave if the employee is unable to return to the workforce as a result of illness provided to be certified by registered medical practitioner.[9]
Marching towards the Vision 2020, discrimination against women should be eliminated immediately for the good of developing the country. Malaysia has adopted an international treaty, which is known as the Convention on the Elimination of All Forms of Discrimination Against Women (CEDAW)[10] as its principle is to achieve substantive equality and non-discrimination. CEDAW has its own cited the definition of ‘Discrimination against women’ and it includes any distinction, exclusion or restriction made on the basis of sex that has the effect or purpose of impairing or nullifying women’s enjoyment of human rights and fundamental freedoms under Article 1. However, CEDAW is like a toothless tiger in Malaysia as we can see in the cases above, there is still a significance of gender differences. CEDAW should not be denied by this world because it is valid and binding, it is a convention but not a mere declaration, as stated by the judge in Mohamad Ezam bin Mohd Noor v Ketua Polis Negara & Ors[11].
Australia is a good example in helping to reform discrimination because they have established a Sex Discrimination Act and it protects people from unfair treatment on the basis of their sex, marital status, pregnancy and breastfeeding, it even covers if a person is sexually harassed.[12] In 1998, Women’s Aid Organisation collaborated with individuals from University Malaya, University Kebangsaan Malaysia and International Women’s Rights Action Watch, Asia Pacific (IWRAW), and they produced a draft Baseline Report monitoring the disparity of laws that affect the women.[13] Women in Malaysia are protected from domestic violence under the Domestic Violence Act 1994. Malaysia has listed clearly under the Penal Code in protecting the women in Malaysia. However, marital rape (non-consensual sexual intercourse in marriage) is an exemption to the rape. Therefore, initiatives should be taken to improve in order to prevent women from being abused.
In a nutshell, a fool proof blueprint should be implemented and advocated to all individuals. The principles of CEDAW should be properly adhered to eliminate the discrimination against women in order to empower women with initiatives to promote the economic and social growth. Nonetheless, to uphold Professor AV Dicey’s Rule of Law postulate, ‘All men are equal before the law regardless of his ranking and social background’. Last but not least, if there is no women, there is no you and me and everyone in this world.
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