The challenge before the High Court of Malaya in Ipoh today (16.03.2018) is with regards to Paragraph 5 of the First Schedule to the Employees’ Social. Security Act 1969.
This law excludes and blindly prevents any employee in Malaysia who happens to be a spouse of their direct employer from enjoying any benefits under SOCSO. The act is supposed to be a “safety net insurance” for all workers in Malaysia.
Veeradevi is one of the victims of such discriminatory law. Veeradevi has been working for her husband since 2000. Both her employer (also her husband) and herself diligently contributed to SOCSO since the year 2000.
SOCSO too had no qualms in accepting her monthly contributions. It is only when she suffered from health problems that they abandoned her. Somewhere in December 2009, she started to suffer from health problems and it got worse by February 2014.
It is then Veeradevi, as an insured person under SOCSO applied to claim for her medical expenses. To her surprise, her application was denied and she was advised to appeal to the Perak State Social Security Appeals Tribunal.
Upon appealing, her appeal was dismissed on the grounds that she is not an employee by virtue of Paragraph 5 of the First Schedule to the Employees’ Social Security Act 1969. Essentially, she is not covered by SOCSO because she is the spouse of her direct employer.
This is a clear-cut discrimination on the ground of marital status. This discriminatory does not serve the object and purpose of SOCSO at all, as tens of thousands of women and to a certain extent, men are not covered under SOCSO just because of their marital status.
We must bear in mind, SOCSO is a safety net for employees in Malaysia who may not afford to subscribe to private insurance plans. In the case at hand, such discrimination deprives her from social security and any attempt by her to subscribe to a new insurance plan in light of her age will prove futile. She is left with nothing. Her right to life has been greatly affected, all due to her marital status to her employer.
M Kulasegaran, New Sin Yew and Omar Kutty appeared as Counsels for Veeradevi. Counsels argued before YA Dato’ Che Mohd. Ruzima that such law is blatantly discriminatory in nature and does not have any bearing with the social object of SOCSO which violates Article 5 (right to life) and Article 8 (to be treated equally) of the Federal Constitution. It is also against internationally recognized covenants such as the Universal Declaration of Human Rights.
The right to social security is of central importance in guaranteeing human dignity for people when circumstances deprive them of the capacity to fully realise their economic, social and cultural rights. It has been recognized globally. By denying social security based on marital status, it goes against the very spirit of the right to life.
Kulasegaran argued that “the High Court must be bold in striking down this law as it has jurisdiction to do so. Tens if not hundreds of thousands of people are deprived from making genuine claims under SOCSO because of this discriminatory law. We are in the 21st Century where it is normal for spouse to work for their husband or wife. SOCSO is a safety net for employees nation-wide. This blatant discrimination only proves to be detrimental to workers. It also goes against recognized international covenant such as Universal Declaration of Human Rights”.
Counsels for Veeradevi argued that “the legal requirements permitting discriminatory laws has not been fulfilled. Even ministers in Parliament has stated that the social object of SOCSO is to protect workers, not discriminate them. How does discriminating employees on the grounds of his or her marital status to their employer, fulfils the object of SOCSO? How does this discrimination protect workers? We are in 2018. Justice must be done for people like Veeradevi.”
The Attorney General’s Chambers appeared for the Government of Malaysia, raised two preliminary objections whereby it was argued that the High Court does not have jurisdiction to decide on this matter and the Plaintiff should have challenged the decision of the Perak State Social Security Appeals Tribunal by way of Judicial Review.
The learned High Court judge, YA Dato’ Che Mohd Ruzima dismissed both Preliminary Objections raised by the Government, and will allow the challenge to be heard on its merits. Decision has been fixed on 15th May 2018. Babu Raj held Watching Brief on behalf of Malaysian Bar.