KUALA LUMPUR, Sept 7 ― The Federal Court granted leave today in a landmark gender discrimination case to decide how to determine damages for a breach of constitutional rights, which could set a precedent for other such violations by the government.
The plaintiff, Noorfadilla Ahmad Saikin, posed three questions of law to the apex court to answer: whether damages must be specifically proven when assessing damages for breach of the constitutional right to gender equality under Article 8(2) of the Federal Constitution; 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 the quantum of damages should deter against further breaches.
Noorfadilla had won in 2014 RM300,000 in damages for breach of her constitutional right to gender equality after she sued the government for revoking her appointment as a temporary teacher due to her pregnancy. But the Shah Alam High Court slashed last year her award to RM30,000, claiming that the original sum amounted to a “handsome profit” for the woman.
“It’s really important because so far, we don’t have any case in Malaysia on how to assess the quantum of damages,” Noorfadilla’s lawyer Honey Tan told Malay Mail Online.“Your right to assemble, free speech, so in future, all our assembly cases, if that happens, people will just put in a claim for breach of constitutional rights. Once the Federal Court sets a principle, you have to pay,” she added, referring to the government.
“So the impact is huge.”
Several activists and Opposition politicians have been charged under the Peaceful Assembly Act 2012 for organising various rallies, while there are numerous prosecutions under the Sedition Act 1948 and the Communications and Multimedia Act 1998 over comments made on the internet criticising the government or the royalty.
The rights to freedom of speech, assembly and association are guaranteed under Article 10 of the Federal Constitution.
Tan said today that in Noorfadilla’s case, the Court of Appeal retained last year the RM30,000 damages for breach of constitutional right, but awarded her client an additional RM10,000 for pain and suffering. The Shah Alam High Court had included damages for emotional and mental distress together with damages for breach of constitutional right in the RM30,000 award.
“But the problem was they didn’t say how they came up with the amount. That’s when the panel said, in assessing damages, you just use your common sense,” said Tan.
“You need principles on how to assess. What’s the criteria basically. We don’t have that.”
The Federal Court panel who granted leave to Noorfadilla today comprised judges Tan Sri Ahmad Haji Maarop, Datuk Seri Abu Samah Nordin and Tan Sri Azahar Mohamed.