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In a written judgment made available last week, Justice Abdul Malek Ahmad cited
the provision in the collective agreement (CA) between Malaysia Airlines (MAS)
and its employees union, saying this is (part of) a lawful contract between
the two parties.
<p>It requires the resignation of female cabin crew or termination of their contract
should they refuse to resign if they become pregnant during specified durations
in service or if they become pregnant for the third time.</p>
<p>Fernandez, who joined MAS in 1980, was asked to leave after she became pregnant
in 1991, and subsequently refused to resign.</p>
<p>Commenting on the judgment, Kuching-based academician Dr Andrew Aeria said
the only conclusion that can be drawn is that the Malaysian judiciary is “stuck
in the Dark Ages and in dire need of enlightenment as far as the views of gender-based
discrimination are concerned”.</p>
<p>“In case these judges have not yet noticed it, the world has moved on.
And in today’s enlightened world, we respect women as being completely equal
to, although different from, men,” he said.</p>
<p>“Enlightened employment contracts that are respectful of human rights
recognise this as well.”</p>
<p>He pointed to the fact that Malaysia ratified (albeit with reservations) the
UN Convention on the Elimination of all Forms of Discrimination Against Women
(CEDAW) in July 1995</p>
<p>“Then again, perhaps these judges are ignorant of CEDAW as well,”
he said.</p>
<p><b>Empty platitudes</b></p>
<p>Upholding the appellate court’s decision, Abdul Malek said there is no
special clause in the CA that discriminates against the applicant for any reason
which will justify judicial intervention.</p>
<p>He went on to say that, although Article 8(2) of the constitution prohibits
discrimination on the basis of religion, race, descent, place of birth or gender,
the equal protection there extends only to persons in the same class.</p>
<p>Furthermore, he said the job requirements of air stewardesses are quite different
from that of women in other occupations, including other categories of women
employees covered by the same collective agreement.</p>
<p>Aeria said that to suggest that the constitution is silent about blatantly
discriminatory CAs and that judges cannot do anything about it is to abdicate
their fundamental role – to dispense justice to those who come before the courts
to plead for their rights against the powerful.</p>
<p>“If the constitution is silent on such matters, why can’t the judges
be more activist-minded in suggesting to the political leadership that the constitution
needs to be amended?”</p>
<p>He said the situation only shows up how hollow Malaysia’s commitment is towards
substantively respecting the rights of women.</p>
<p>“Wasn’t no respect for the rights of women a central platform of
Malaysia’s presentation at the Non-Aligned Ministerial conference only two weeks
ago? These are surely empty platitudes when MAS continues to discriminate against
its female staff.”</p>
<p>Fernandez had applied for leave to set aside the Court of Appeal decision which
rejected her application for a declaration that various provisions of the CA
are invalid because they contravene Article 8(2) of the Federal Constitution.</p>
<p>In addition, she wanted a declaration that her termination was void because
it contravenes the Industrial Relations and Labour Act 1955.</p>
<p>During a 14-year battle for justice, she had seen her initial applications
dismissed by the Kuala Lumpur High Court in 1996 and by the Court of Appeal
in 2003.</p>
<p><i>TONY THIEN is malaysiakini’s Sarawak-based stringer.</i></p>
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