Article 8

The Right to Equality

Article 8 (1)

All persons are equal before the law and entitled to the equal protection

of the law.

PP v Tengku Mahmood IskandarPP v Tengku Mahmood Iskandar [[1971] MLJ 1281971] MLJ 128

The High Court, having regard to the gravity of the offence, substituted a more severe sentence for a lesser one imposed by a lower court, which had taken into account the status of the accused as a Prince of the ruling house of the state of Johore.

The High Court is stated that the decision of the lower court "had ... conflicted with the provisions of Article 8 of our Constitution which says that all persons are equal before the law.

That implies that there is only one kind of law in the

country to which all citizens are amenable.

Every citizen, irrespective of his official or social status, is under the same responsibility for every act done without legal justification.

This equality of all in the eyes of the law minimises tyranny".

Rule of LawRule of LawEquality before the law. It excludes the idea of any exception of government

officials or other peoplefrom the duty of obedience to the law or from the jurisdiction of the court.

The rule of law implies that every person is equally subject to the law.

The social or political or economical status of an individual is by itself no answer to legal proceedings, civil or criminal.

Everyone, whatever his position must be ready to justify his actions by reference to some specific legal rule and be ready to justify them in the ordinary courts.

Article 8(2)

There shall be no discrimination against citizens on the ground only of

Religion, Race, Descent, Place of birth or Gender

Article 8(2)in any law or

in the appointment to any office or employment under a public authority or

in the administration of any law relating to The acquisition, holding or disposition of

property or The establishing or carrying on of any trade,

business, profession, vocation or employment.

Except as expressly authorised by this Constitution.

(i.e. (5) of this article)

(3) There shall be no discrimination in favour of any person on the ground that he is a subject of the Ruler of any State.

(4) No public authority shall discriminate against any person on the ground that

he is resident or

carrying on business in any part of the Federation outside the jurisdiction of the authority.

Article 8

Datuk Haji Harun bin Haji Idris v. Public Prosecutor [1977] 2 MLJ 155 The prohibition of unequal treatment applies

not only to the legislature but also to the executive.

This is seen from the use of the words “public authority” in clause (4) and “practice” in clause (5)(b) of Article 8.

The prohibition applies to both substantive and procedural laws.

Equality = Justice ?

PP v Su Liang Yu [1976] MLJ 2 128

The dominant idea in both expressions “equal before the law”

and “equal protection of the law”

is that of

equal justice.

Does not guarantee equality that is not just.

Allow difference of treatment that attains justice.

• Express Exceptions

• Implied Exception (Judicial Exception)

? Law Complies With Art 8 ?

The first question should be asked is ‘ Is the law discriminatory?’

Not discriminatory - It is a good law.Discriminatory - We have to ask another question

‘Is the discrimination in the law allowed?’

- If it is allowed (either expressly allowed by the constitution or is allowed by judicial

interpretation) the law is good.- If it is not allowed, the law is void.

Exceptions to General RuleExceptions to General Rule

• Express ExceptionsExpress Exceptions

• Implied ExceptionImplied Exception

Situations where equality does not promote Situations where equality does not promote justicejustice

The Express ExceptionsThe Express Exceptions

Article 8 (5). ‘This Article does not invalidate or prohibit…’ Article 8 (5). ‘This Article does not invalidate or prohibit…’

The followings are allowed (because they are expressly The followings are allowed (because they are expressly excepted by the Constitution):excepted by the Constitution):

‘‘(a) any provision regulating personal law;’ (a) any provision regulating personal law;’ • i.e. Islamic Lawsi.e. Islamic Laws

’’(b) any provision or practice restricting office or (b) any provision or practice restricting office or employment connected with the affairs of any religion, or of employment connected with the affairs of any religion, or of an institution managed by a group professing any religion, an institution managed by a group professing any religion,

to persons professing that religion;’to persons professing that religion;’• i.e. Administration of religious institutions such as mosque.i.e. Administration of religious institutions such as mosque.

The ExpressThe Express ExceptionsExceptions

‘‘(c) any provision for the protection, well-being or (c) any provision for the protection, well-being or advancement of the aboriginal peoples of the Malay advancement of the aboriginal peoples of the Malay Peninsula (including the reservation of land) or the Peninsula (including the reservation of land) or the

reservation to aborigines of a reasonable proportion of reservation to aborigines of a reasonable proportion of suitable positions in the public service;’suitable positions in the public service;’

• i.e. Malay privileges. Art. 152 and 153, and related laws i.e. Malay privileges. Art. 152 and 153, and related laws

’’(d) any provision prescribing residence in a State or (d) any provision prescribing residence in a State or part of a State as a qualification for election or part of a State as a qualification for election or

appointment to any authority having jurisdiction only in appointment to any authority having jurisdiction only in that State or part, or for voting in such an election;’that State or part, or for voting in such an election;’

• i.e. Local authority such as Majlis Perbandaran, JKKK i.e. Local authority such as Majlis Perbandaran, JKKK etc.etc.

The Express ExceptionsThe Express Exceptions

’’(e) any provision of a Constitution of a (e) any provision of a Constitution of a State, being or corresponding to a State, being or corresponding to a

provision in force immediately before provision in force immediately before Merdeka Day;’Merdeka Day;’

’(f) any provision restricting enlistment ’(f) any provision restricting enlistment in the Malay Regiment to Malays.’in the Malay Regiment to Malays.’

Affirmative Action (Preferential Treatment): Affirmative Action (Preferential Treatment): A Tool for JusticeA Tool for Justice

Affirmative action is a policy that directly or indirectly Affirmative action is a policy that directly or indirectly awards jobs, promotions, and other resources to awards jobs, promotions, and other resources to individuals on the basis of membership in a protected individuals on the basis of membership in a protected group in order to compensate those groups for past group in order to compensate those groups for past discrimination.discrimination.

• Through affirmative action, the authority may take Through affirmative action, the authority may take

positive steps to correct past racial discrimination.positive steps to correct past racial discrimination.• Affirmative action is nothing more than reverse Affirmative action is nothing more than reverse

discrimination. discrimination.

Limitation by Judicial Interpretation on Right to Equality: Doctrine of Reasonable Classification

PP v Khong Teng Khen [1976] 2 MLJ 166

The principle underlying Article 8 is that

a law must operate alike on all persons under like

circumstance.

Limitation by Judicial Interpretation on Right to Equality: Doctrine of Reasonable Classification

A law is not required to operate on all persons in any circumstances.

A law is also not required to be general in character and universal in application

The article does not prohibit the legislature and executive bodies to distinguish and classify persons.

Thus

The law may classify persons.

The law may classify offences into different categories.

All that Article 8 guarantees is that a person in one class should be treated

the same as another person in the same class.

Doctrine of Reasonable Classification

Su Liang Yu [1976] 2 MLJ 128

No person shall be denied equality before the law or equal protection of the law

but Article 8 does not prevent Parliament from

making a law based on or involving some classifications.

Discriminatory law is good law if it is based on “reasonable” or “permissible” classification.

Doctrine of Reasonable Classification

Requirements that must be fulfilled by

laws that involve classification

The classification is founded on an intelligible differentia which distinguishes persons that are

grouped together from others left out of the group.And

The differentia has a rational relation to the object sought to be achieved by the law in question.

The classification may be founded on different bases such as geographical, or according to objects or occupations and the like.

There must be a nexus between the basis of classification and the object of the law in question.

Malaysian Bar & Anor. v Govt of Malaysia Malaysian Bar & Anor. v Govt of Malaysia [1987] 2 MLJ 165[1987] 2 MLJ 165. .

Amendment to the Legal Profession Act 1976 Amendment to the Legal Profession Act 1976

makes it unlawful for an advocate and solicitor makes it unlawful for an advocate and solicitor

- less than seven years standing - less than seven years standing

- a member of any political organisation or trade - a member of any political organisation or trade union union

to be a member of the Bar Council or any to be a member of the Bar Council or any committee thereof. committee thereof.

The Supreme Court held that there was a The Supreme Court held that there was a rational nexusrational nexus between between

the purpose of the lawthe purpose of the law (to ensure that the (to ensure that the Bar was run by experienced, competent Bar was run by experienced, competent and independent practitioners) and and independent practitioners) and

the classificationthe classification adopted (less than seven adopted (less than seven years standing and member of any years standing and member of any political organisation or trade union).political organisation or trade union).