Zane Azraai - Academia.edu (original) (raw)

Papers by Zane Azraai

International Law-Conventions-Binding effect within Malaysia-Whether Parliament must legislate to... more International Law-Conventions-Binding effect within Malaysia-Whether Parliament must legislate to make convention/treaty operable and enforceable within Malaysia-Whether mere ratification by Malaysia of conventions/treaties insufficient to make them domestically enforceable-Whether Convention on Elimination of All Forms of Discrimination against Women had no force of law in Malaysia as same was not enacted into local legislation-Whether statute would prevail if local law conflicted with international law which had yet to be domesticated-Whether constitutional law, as branch of public law, applied only when individuals rights were violated by public authority and not in disputes between private parties The respondent had signed an agreement with the appellant which contained a clause (cl 5.1 (4)) forbidding her from getting pregnant during the duration of a four year aircraft maintenance engineering training programme she was chosen to undergo. The clause provided that if she did get pregnant it would be a repudiation of the agreement. The appellant terminated both the agreement and her employment when it found the respondent became pregnant during the final year of the course. The appellant obtained judgment for agreed liquidated damages of RM92,000 against the respondent in the sessions court but the same was set aside on appeal. The respondent applied to the High Court to declare void cl 5.1(4) for being, inter alia, in breach of arts 8 and 11 of the Federal Constitution, the United Nations Universal Declaration of Human Rights and the Convention on the Elimination of All Forms of Discrimination against Women (CEDAW). She also sought an order that she was not liable to the appellant for damages and that it was the appellant, instead, which was liable to pay her damages for wrongfully terminating her employment. The High Court allowed the respondents application. In the instant appeal against that decision, the appellant contended that since the dispute was between private parties and not a breach of an individuals rights by a public authority, the provisions of the Federal Constitution had no application and that that principle was upheld by the Federal Court in the case of Beatrice a/p AT Fernandez v Sistem Penerbangan Malaysia & Anor [2004] 4 MLJ 466 (Beatrice s case). It was also contended that the courts did not have to take into account the provisions of CEDAW when defining or determining gender discrimination just because Malaysia had signed and ratified that Convention. Held, allowing the appeal and setting aside the decision of the High Court: (1) Clause 5.1(4) of the agreement did not discriminate against the rights of women. All clauses in the agreement, especially cl 5.1(4), did not restrain marriage and/or prohibit pregnancy if the respondent had completed the training programme in the manner stipulated in the agreement (see para 55). (2) CEDAW did not have the force of law in Malaysia because the same was not enacted into any local legislation. For a treaty to be operative and enforceable in Malaysia, it required legislation by Parliament. Without express incorporation into domestic law by an act of Parliament following ratification of CEDAW, the provisions of the international obligations in CEDAW did not have any binding effect. Ratification alone did not make the provisions of treaties applicable for municipal law. Also, in Malaysia, the Federal Constitution was silent as to the primacy of international law or municipal law or vice versa. If there was a conflict, the general rule was that the statute would prevail (see paras 37, 41, 44, 49, 50 & 53).

International Law-Conventions-Binding effect within Malaysia-Whether Parliament must legislate to... more International Law-Conventions-Binding effect within Malaysia-Whether Parliament must legislate to make convention/treaty operable and enforceable within Malaysia-Whether mere ratification by Malaysia of conventions/treaties insufficient to make them domestically enforceable-Whether Convention on Elimination of All Forms of Discrimination against Women had no force of law in Malaysia as same was not enacted into local legislation-Whether statute would prevail if local law conflicted with international law which had yet to be domesticated-Whether constitutional law, as branch of public law, applied only when individuals rights were violated by public authority and not in disputes between private parties The respondent had signed an agreement with the appellant which contained a clause (cl 5.1 (4)) forbidding her from getting pregnant during the duration of a four year aircraft maintenance engineering training programme she was chosen to undergo. The clause provided that if she did get pregnant it would be a repudiation of the agreement. The appellant terminated both the agreement and her employment when it found the respondent became pregnant during the final year of the course. The appellant obtained judgment for agreed liquidated damages of RM92,000 against the respondent in the sessions court but the same was set aside on appeal. The respondent applied to the High Court to declare void cl 5.1(4) for being, inter alia, in breach of arts 8 and 11 of the Federal Constitution, the United Nations Universal Declaration of Human Rights and the Convention on the Elimination of All Forms of Discrimination against Women (CEDAW). She also sought an order that she was not liable to the appellant for damages and that it was the appellant, instead, which was liable to pay her damages for wrongfully terminating her employment. The High Court allowed the respondents application. In the instant appeal against that decision, the appellant contended that since the dispute was between private parties and not a breach of an individuals rights by a public authority, the provisions of the Federal Constitution had no application and that that principle was upheld by the Federal Court in the case of Beatrice a/p AT Fernandez v Sistem Penerbangan Malaysia & Anor [2004] 4 MLJ 466 (Beatrice s case). It was also contended that the courts did not have to take into account the provisions of CEDAW when defining or determining gender discrimination just because Malaysia had signed and ratified that Convention. Held, allowing the appeal and setting aside the decision of the High Court: (1) Clause 5.1(4) of the agreement did not discriminate against the rights of women. All clauses in the agreement, especially cl 5.1(4), did not restrain marriage and/or prohibit pregnancy if the respondent had completed the training programme in the manner stipulated in the agreement (see para 55). (2) CEDAW did not have the force of law in Malaysia because the same was not enacted into any local legislation. For a treaty to be operative and enforceable in Malaysia, it required legislation by Parliament. Without express incorporation into domestic law by an act of Parliament following ratification of CEDAW, the provisions of the international obligations in CEDAW did not have any binding effect. Ratification alone did not make the provisions of treaties applicable for municipal law. Also, in Malaysia, the Federal Constitution was silent as to the primacy of international law or municipal law or vice versa. If there was a conflict, the general rule was that the statute would prevail (see paras 37, 41, 44, 49, 50 & 53).