A five-member Federal Court bench today refused to answer three questions of law on the award of damages for constitutional breaches of gender discrimination in the case of a temporary teacher sacked from a school nine years ago - just because she was pregnant.

Chief Judge of Malaya Justice Ahmad Ma'arop, who headed the bench, said they won’t answer the questions of law posed by the lawyers appearing for Noorfadilla Ahmad Saikin.

However, the bench allowed the government's appeal to strike out the RM10,000 damage awarded to Noorfadila by the lower courts for pain and suffering.

Nevertheless, the apex court increased the award for damages for breach of constitutional protection from RM30,000 to RM40,000.

"There was no necessity for the court to answer the (three) questions posed to us," Justice Ahmad said.

He made no order as to costs.

The other judges were Federal Court judges Justice Azahar Mohamed, Justice Zaharah Ibrahim, Justice Balia Yusof Wahi and Justice David Wong Dak Wah.

Lawyer Honey Tan said the Federal Court had missed an opportunity to decide on the questions on how to decide on the constitutional breach of rights.

"We were hoping that the court would award damages to deter others from breaching such constitutional rights and to those practising gender discrimination," she said.

Noorfadilla's husband, Mohd Izwan Zakaria (on left in photo), said his wife had suffered a lot and was even called names after she was dismissed from work, but despite this, the court decided there was no pain and suffering.

"She cried when calling me that she was dismissed from work. The apex court only decided, within less than 45 minutes, to determine the quantum," Irwan said.

'Quantum is secondary, but questions relevant'

The quantum is secondary but the questions are relevant, he added.

Noorfadilla filed her civil lawsuit on May 7, 2010, seeking a declaration that the termination of her contract because she was three months’ pregnant with her second child, was illegal.

She claimed she was offered a position as an untrained relief teacher on a month-to-month basis, starting in mid-January 2009. However, the offer was withdrawn when she informed the Hulu Langat district education office that she was pregnant.

Noorfadilla named Hulu Langat district education officers Chayed Basirun and Ismail Musa, Selangor Education Department director Zahri Aziz, the Education Ministry director-general, education minister and the government as defendants.

Earlier reports said the senior registrar of the High Court in Shah Alam had granted her RM325,000 in total damages.

On appeal before a High Court judge, the government managed to reduce the quantum on grounds it may amount to profiteering and the sum was cut to RM30,000.

In the Court of Appeal two years ago, the damages for the constitutional breach was maintained at RM30,000 and another RM10,000 was awarded for her pain and suffering.

The Federal Court today heard Noorfadilla’s appeal on the quantum awarded and the government’s appeal on the damages awarded for pain and suffering.

The three questions her lawyers posed to the Federal Court are:

  • In assessing general damages for breach of a constitutional right under Article 8(2) of the Federal Constitution for gender discrimination, do damages need to be specifically proven?
     
  • Whether, in assessing the general damages for breach of the constitutional right under Article 8(2), should the quantum of damages to be awarded reflect the sense of public outrage?
     
  • Whether, in assessing the general damages for breach of the constitutional right for gender discrimination, should the quantum of damages to be awarded ought to have a deterrent factor against those breaches?