Supreme Court, Dugain and others v. Compagnie Air Madagascar, 5 September 2003, Decision No. 231
Constitution of the Republic of Madagascar
(…) Considering its geopolitical situation in the region and its committed participation in international entente, and adopting: - the International Charter of Human Rights; - the African Charter on Human and Peoples’ Rights; - the Conventions on the rights of women and of the child, and considering these to be an integral part of its law, (…)
Article 82, paragraph 3(VIII)
(…) Treaties or agreements which have been duly ratified or adopted shall, upon their publication, have higher authority than the laws, provided that each agreement or treaty is applied by the other party.
Protection against discrimination in employment and occupation
Direct resolution of a dispute on the basis of international law
Discrimination on the grounds of age and sex/ Collective agreement providing a difference in retirement age between female and male employees/ Action brought for discrimination/ Direct resolution of a dispute on the basis of international law
The collective agreement of an airline fixed the retirement age for female cabin crew members at 45 years of age and at 50 for male cabin crew members. Female employees who had been retired had instituted legal proceedings to have the relevant article of the collective agreement cancelled. The Court of Appeal had dismissed their claims without determining whether the article in question was discriminatory or not. The two employees brought the case before the Supreme Court, arguing namely that a general rule of law had been violated.
In order to assess whether the clause was discriminatory, the Supreme Court of Madagascar relied on the Preamble to the Constitution3 and also on the international instruments concerning discrimination in employment and occupation, which Madagascar had incorporated into domestic law.
The Court first referred to the Preamble to the Madagascar Constitution, holding that:
“The rule of equality and non-discrimination is thus a general rule of law, a rule of public order which the judge is duty-bound to apply in the course of his duties.”
The Court continued its case by referring to the international instruments relating to discrimination which had been incorporated into domestic law, such as the Preamble to the Constitution:
“(…) given that, furthermore, the international conventions on women’s rights include not only the International Convention on the Elimination of All Forms of Discrimination against Women (…) but also ILO Convention No. 111 concerning Discrimination in Employment and Occupation; (…) and, finally, the ILO Declaration on Principles and Fundamental Rights at Work, including the elimination of discrimination in employment and occupation, which apply automatically; given that, within the meaning of these international standards it is not per se discriminatory to stipulate an age limit or a restriction based on sex, but that such stipulation could only be justified if the employer can prove that the sex of the employee is a vocational requirement inherent in the job, particularly in jobs entailing risks, that requirement being justified for reasons of safety, and proof of the effects of age on safety in consideration of sex thereby being required; (…)”.
Relying primarily on ILO Convention No. 111 and other international instruments, the Supreme Court of Madagascar ruled that the clause in the collective agreement relating to retirement age was discriminatory and quashed the judgment of the Court of Appeal.
1 Convention on the Elimination of All Forms of Discrimination against Women, 1979; ILO Discrimination (Employment and Occupation) Convention, 1958 (No. 111).
3 The following is stated in the Preamble to the Constitution Madagascar: “(…) Considering its geopolitical situation in the region and its committed participation in international entente, and adopting:
- the International Charter of Human Rights;
- the African Charter on Human and Peoples’ Rights;
- the Conventions on the rights of women and of the child, and considering these to be an integral part of its law, (…)”