Pregnant, productive and discriminated
Salbiah Ahmad
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In 1991, Beatrice Fernandez was dismissed from her job as an air stewardess because she was pregnant. She inter alia claimed a pregnancy-based discrimination and filed a case in the High Court, citing Article 8 (equality before the law and equal protection of the law) of the Federal Constitution.
Last year the Court of Appeal did not find the dismissal wrong. On March 11, three days after International Women’s Day, Beatrice was refused leave to appeal to the Federal Court.
This case is the indelible smear to Malaysia’s proclaimed achievement of the United Nations Millennium Development Goals (MDG), more specifically MDG 3: the promotion of gender equality and empowerment of women. The Malaysian Millennium Development Goals Report was launched by Prime Minister Abdullah Ahmad Badawi on Jan 28 this year.
According to this report, which was in part developed by the Economic Planning Unit and the Ministry of Women, Family and Community Development, “Achieving gender equality and empowering women are necessary to achieve social, economic and political development.”
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“Malaysia has acknowledged that women, who make up half of the population, are central to development. Women form a distinct and important group that can have a great impact on development and should not be marginalized”.
Measures to promote MDG 3 include the improvement of the political and legal status of women and increasing access to employment. The report claims that gender sensitization training have been given to government officers since 1990.
“Progress has been evident” when in 2002 the gender sensitization training was incorporated in the “gender- sensitization courses” of the Judicial and Legal Training Institute (for lower court judges). One muses of course that ‘incorporation’ into modules falls short of actually running the course. In any case, it does appear that judges in the superior courts have been immune to these engendering efforts.
No constitutional remedies
In the Court of Appeal, the three judge panel ruled that the constitutional remedies do not avail themselves to the case, as the collective agreement in question (which cited pregnancy as a ground of dismissal) was a case between private individuals. The court labored under the perception that the chapter on fundamental liberties dealt only with “the protection of the individual against the arbitrary invasion of such rights by the State”.
Like any interpretation of text, what the text is, pretty much depends on the opinions of the interpreters under a given set of methodology (or the state of the judges’digestion as legal jargon would have it). But this must be the most curious revelation todate of the state of our fundamental liberties under the Federal Constitution.
As we draw closer to a 50th anniversary to Merdeka, perhaps a legal audit of the chapter on fundamental liberties, must be conceived and developed in addition to a more comprehensible audit on the state of our democracy.
I have no desire of going into the court’s reasoning of non application of constitutional safeguards to agreements between private parties. It suffices to say that the last millennium imprinted a well regarded principle that the State will be implicated vicariously in the violation of rights between non- state actors or private individuals when the State remains silent. The extrapolation of this principle to the present case would mean that the State becomes obligated and has a responsibility to protect rights even in a case between private individuals.
Violation of equality
What bothered me enough to shoot a summary comment this week, was the court’s acceptance of a pregnancy-based discrimination in the workplace as a non-violation of the principle of equality of women and men.
In the judgment, the court opined that a provision in the collective agreement on resignation /dismissal on ground of pregnancy is not discriminatory on the same basis that it “cannot be reasonably argued” that maternity leave for women is discriminatory to men. With due respect, this line of argument is far from reasonable.
If we premise equality to mean that for women to be treated equal as men in the workplace, women should not be pregnant (as men do not get pregnant), that premise is discriminatory.
Women should not be expected to be like men and not get pregnant as they will undergo reproductive experiences which would make them different. Thus sacking on ground of pregnancy, arguably a ground that can only apply to women, discriminates between women and men and it offends the principle of equality.
If the court had first developed this line of argument, then the court’s concession that “it cannot reasonably be argued that the provision of the law giving maternity leave only to women is discriminatory to men”, is logical and reasonable. We may say therefore, that it cannot reasonably be argued that sacking on ground of pregnancy is discriminatory to men, because men do not get pregnant.
Put in another way, the provision for maternity leave flows from the same premise as pregnancy; that women only get pregnant. Maternity leave for women does not discriminate as between women and men because the provision is related to pregnancy. What is discriminatory is the non-provision of paternal or parental leave to the non-pregnant spouse, when maternity leave is available.
Fuzzy reasoning
By refusing leave for appeal to the Federal Court, the court which disposed of the leave application, is party to the fuzzy reasoning of the Court of Appeal on dismissal on ground of pregnancy as a non-violation of the principle of equality in the workplace.
Women may choose to be part of the waged labour force or not. Should she exercise the option of waged work (productive work includes waged labour, housework and generation of income from ‘informal’ productive work such as sewing and baking) in addition to reproduction (bearing children and being a care- giver), she should not have to put up with discriminatory policies.
However, many women cannot afford to choose not to be waged as their wages constitute a substantial portion of the household income. Malaysian women continue to fulfill both their reproduction and production roles as noted in the Malaysian MDG report. Women who make half of the population are central to development and should not be marginalized or made more vulnerable (than men) by workplace policies.
Beatrice Fernandez was an airline stewardess at the time of dismissal. A collective agreement which does not violate the equal protection principle and equality before the law would include for example, a temporary change of work location or duties for pregnant women and a right of the employee to return to her former position following maternity leave.
State complicity
The Malaysian MDG report claims that “a number of new laws as well as amendments to existing laws have been made” to provide a more conducive working environment for women. The review has to be more comprehensive.
It might be noted that the Ministry of Women, Family and Community Development (MWFCD) has yet to table the Women’s Convention or CEDAW in Parliament for it to have effect at the local level.The 1995 adoption of CEDAW alone without this procedure is not adequate to advance the status of women.
Perhaps groups should lobby that the Ministry of Human Resources be given the responsibility over gender concerns in law, policy and practice in the workplace rather than the MWFCD.
A multi-prong strategy for change in the workplace would include a campaign with the International Labour Organization (ILO) and the Malaysian Trade Union Congress (MTUC) for a gender-sensitive collective agreement for all sectors.
The State cannot justify non-interference where rights are violated in gendered agreements between non-state actors. To stand by and do nothing would mean that one-half of the population is being discriminated with complicity of the State.
