Calibrating Interpretive Incorporation: Constitutional Interpretation and Pregnancy Discrimination Under CEDAW

Abstract

The success in implementing human rights treaties is often determined by the national laws of a country. There is an implementation gap in dualist regimes where courts do not implement human rights treaty provisions because they have not been domesticated by a legislative (or other necessary) incorporating act. Interpretive incorporation is a judicial trend that seeks to mitigate this strict separationist view. This article examines the use of interpretive incorporation in Malaysia to incorporate CEDAW’s prohibition against pregnancy discrimination through constitutional interpretation. It calibrates the outcomes of interpretive incorporation based on the status judges effectively give to unincorporated human rights treaties. The article reflects on some of the continuing local constraints on interpretive incorporation.

Keywords: CEDAW, constitutional law, gender discrimination, women's rights, judicial review, judicial interpretation