The Federal Court's decision to reject an appeal by former air stewardess Beatrice Fernandez has been criticised as 'archaic reasoning".

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.

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.

Fernandez, who joined MAS in 1980, was asked to leave after she became pregnant in 1991, and subsequently refused to resign .

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".

"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.

"Enlightened employment contracts that are respectful of human rights recognise this as well."

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

"Then again, perhaps these judges are ignorant of CEDAW as well," he said.

Empty platitudes

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.

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.

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.

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.

"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?"

He said the situation only shows up how hollow Malaysia's commitment is towards substantively respecting the rights of women.

"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."

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.

In addition, she wanted a declaration that her termination was void because it contravenes the Industrial Relations and Labour Act 1955.

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.

TONY THIEN is malaysiakini 's Sarawak-based stringer.