PETALING JAYA: What is your constitutional right to gender equality worth?

Or should damages be even awarded for a breach of a constitutional right for the repudiation of a contract?

These crucial questions, arising from a landmark case on gender discrimination, will be determined by the Federal Court soon.

On Thursday, the highest court in the land granted leave to appeal to both Noorfadilla Ahmad Saikin and the Government over the damages that were awarded to her after the latter refused to hire her as a temporary teacher in 2009 when it found out she was three months’ pregnant.

Chief Judge of Malaya Justice Ahmad Maarop, who sat with Federal Court Justices Abu Samah Nordin and Azahar Mohamed at the Palace of Justice, said the apex court would look at both the appeals “globally”.

Noorfadilla has three questions for the Federal Court, said her counsel Honey Tan, the main one being  whether damages must be specifically proven when assessing general damages for breach of a constitutional right under Article 8(2).

The Government, represented by Senior Federal Counsel Suzana Atan and Mazlifah Ayob, argued in its written submission that general damages for breach of constitutional rights was not a recognised claim in Malaysia and questioned whether damages could be granted for emotional and mental distress in such a case.

Later, Joachim Xavier — Noorfadilla’s solicitor — said that Noorfadilla wanted the Federal Court to clarify the principles by which an assessment of damages could be made for breaches of constitutional rights.

“If the court answers in the affirmative to the first question, then questions two and three would follow.

“The Federal Court would have to determine whether the quantum of damages should reflect a sense of public outrage, emphasise the importance of the constitutional right and the gravity of the breach; and whether it should be a deterrent.”

Noorfadilla, a mother of four, who was happy she got leave to ask her questions, added that the actual appeals would only be heard after case management.

In 2011, Shah Alam High Court Justice Zaleha Yusof declared in a landmark decision that pregnancy was not a valid reason for the Selangor Education Department to deny Noorfadilla employment as an untrained relief teacher.

She added that Malaysian courts were obliged to interpret the term “equality” in Article 8(2) in light of the Convention on the Elimination of Discrimination Against Women (Cedaw).

In 2014, a High Court deputy registrar awarded Noorfadilla RM300,000 in general damages but on appeal to a judge, it was cut by 90% to RM30,000 on grounds it was inappropriate and was tantamount to profiteering. The Court of Appeal maintained the general damages and gave Noorfadilla RM10,000 for emotional and mental distress.


From The Star Online