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LAW & EQUALITYLAW 1Introduction to Law 1

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WORLD IS FULL WITH INEQUALITY

05/02/2023 4WHAT IS EQUALITYLITERALLY it can be defined as follows:- The quality of being the same in quantity or measure or value or status. A state of being essentially equal or equivalent; equally balanced; "on a par with the best".

• Equality has been described as a “treacherously simple concept” - diverse spectrum of opinions exists as to what is equality and what should a society do to incorporate and promote this value.EQUALITY is always associated with the notion of justicei.e. Law is to be applied equally in all situations and to all persons to which it relates without fear or favour, to rich and poor, to powerful and humble

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• Equality’ and ‘equal’ are incomplete predicates that necessarily generate one question: equal in what respect? • Equality is sometimes misunderstood. It does not necessarily mean “same treatment”.

Equality before the law Equal treatment Equality of socioeconomic opportunity

05/02/2023 6EQUALITY IN ISLAM• The believers are but brothers, so make settlement between your brothers. And fear Allah that you may receive mercy. (Al-Quran: Al-Hujurat 49:13)• O mankind, indeed We have created you from male and female and made you peoples and tribes that you may know one another. Indeed, the most noble of you in the sight of Allah is the most righteous of you. Indeed, Allah is Knowing and Acquainted. (Al-Quran: Al-Hujurat 49:13)• Principle of musawat ; equality before the law and rights & duties

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TYPES OF EQUALITY• Freedom – right to life, movement• Welfare – protect interest of poor people, affirmative action. • Resources – country’s wealth• Political – freedom of speech, expression and association.

05/02/2023 8EQUALITY & JUSTICE• Dias outline relationships between justice and morality:• Corrective justice• Natural justice• Distributive justice

• ‘Every man is free to which he wills, provided he infringes not the equal freedom of any other man’ (Spencer)

05/02/2023 9EQUALITY BEFORE THE LAW• The doctrine that all persons, regardless of wealth, social status, or the political power wielded by them, are to be treated the same before the law.• Article 7 UDHR 1948 - All are equal before the law and are entitled without any discrimination to equal protection of the law. All are entitled to equal protection against any discrimination in violation of this Declaration and against any incitement to such discrimination.• Article 14 of the International Covenant on Civil and Political Rights :All persons shall be equal before the courts and tribunals. In the determination of any criminal charge against him, or of his rights and obligations in a suit at law, everyone shall be entitled to a fair and public hearing by a competent, independent and impartial tribunal established by law…..

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• Article 8 Federal Constitution -provides equality before the law and equal protection of the law. “There shall be no discrimination against citizens on the ground of religion, race, gender or place of birth”HOWEVER• Equality before the law does not mean 100% equality.• It means, persons in the same circumstances/ groups/ places must be treated equally and vice versa.• Thus, equality before the law is not absolute because not all laws must apply uniformly to all persons in all circumstances everywhere.

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EXAMPLE:Case: Beatrice Fernandez v Sistem Penerbangan Malaysia [2005] MLJ Article 8 of the FC did not apply in contractual agreement in private sector. Discrimination for barred a pregnancy stewardess to work was allowed. In contrast with:KUALA LUMPUR, Nov 10 2014 — In a landmark case, the Shah Alam High Court today awarded a woman RM300,000 in damages for breach of her constitutional right to gender equality after the government refused to employ her as a temporary teacher when she became pregnant. 

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• The government was also ordered to pay 32-year-old Noorfadilla Ahmad Saikin RM12,907.68 for loss of earnings, RM2,296.10 for loss of EPF (Employees Provident Fund), RM912.71 for loss of EPF dividends, as well as RM25,000 for pain and suffering, and RM5,000 in costs.• The Shah Alam High Court ruled in 2011 that the government had discriminated against Noorfadilla and, in a landmark decision, held that the United Nations’ Convention on the Elimination of All Forms of Discrimination against Women (Cedaw) had the force of law in Malaysia as the country had acceded to the human rights treaty in 1995.

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• In Plessy v Ferguson, it was held that “what constitutes circumstances entitling a legislature to discriminate and what constitutes discriminations are questions of political values to be decided by the court. These values may change from time to time.”• Ihering says that “the idea that the law must always be the same is no better than that medical treatment should be the same for all patients.”

05/02/2023 14DOCTRINE OF CLASSIFICATION• The reconcile the issue of unequal treatment and the need to discriminate – Doctrine of Classification• The basis of this doctrine is that the guarantee of equality before the law or equal protection of law does not require that all persons to be treated alike but only persons in like circumstances must be treated alike. •  Classification of objects into groups according to their similarities and differences or their relation to a set of criteria.• Under the doctrine of classification, one may in certain instances discriminate between classes but no one within particular classes should be singled out for discriminatory treatment.• Therefore, discriminatory law/policy is valid if it is based on reasonable classification.

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• Decided by per Suffian Hashim LP in Datuk Haji Harun bin Idris v Public Prosecutor [1977] 2 MLJ 155, 165-166Discriminatory law is valid based on reasonable or permissible classification if law:• Rational• Founded on distinguish mark from other people• Must be policy achieved• Nexus between classification and object of law

05/02/2023 16FORMAL v SUBSTANTIVE EQUALITYFORMAL

• Things that are alike should be treated alike• Favoured by Liberalist• The state must ensure that no formal discriminatory mechanisms were in place.• Women and men are equally able to take advantage of opportunities - gender or eye colour would carry no expectation with it.

SUBSTANTIVE

• Equality in outcome• To achieve substantive equality, it would be necessary to have special treatment/rights for those whose initial position demands it.• Favoured by Egalitarian.• People should be judged by real situation which tend to place them in a weaker position.• Become a basis for positive discrimination

05/02/2023 17DISCRIMINATION• As McHugh J succinctly explained: “discrimination can arise just as readily from an act which treats as equals those who are different as it can from an act which treats differently persons whose circumstances are not materially different.”• Discrimination - generally refers to the different treatment of an individual or a group of individuals, which results in a disadvantage.• Types of discrimination:a) Positive discrimination @affirmative actionb) Negative discrimination

05/02/2023 18POSITIVE DISCRIMINATION @ AFFIRMATIVE ACTION• Discrimination that benefits the actee (Justifiable discrimination).• Refers to an attempt to make progress towards substantive rather than merely formal equality for those group that are currently underrepresented in significant position in a society – higher degree of participation in beneficial program. • It is a policy or a program of giving certain preferences to certain (usually "under-represented") groups.• Usually aimed for the groups that have suffered discrimination and serves as remedy for past discrimination.

05/02/2023 19POSITIVE DISCRIMINATION IN MALAYSIA• ART 153(1) of FC places on YDPA a responsibility to safeguard the special position of the Malays and natives of any state of Sabah and Sarawak.• It also contains provisions for the reservation of quotas in respect of services, permits etc for Malays and natives of Sabah and Sarawak. • Malaysia has a long tradition of protective legislation for working women and physically disabled, maternity leave and other similar “special treatment” regimes. • The Bumiputra laws are a form of POSITIVE DISCRIMINATION meant to provide more opportunity for the majority ethnic Malay population versus the historical financial dominance of the Chinese and Indian populations.

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• Examples:• New Economic Plan in 1971 was set up to ease ethnic tensions by improving the economic situation of the majority Malays over the Chinese (Riot in 1969)• Quota System which gives Malay and Bumiputras preferential treatment in the selection process for state-sponsored education, business jobs and the civil service.• No citizen is allowed to speak critically about the negative consequences of the government’s pro-Malay and Bumis policies (otherwise can be charged of sedition).• Native Land Title/Malay Reserved Title

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CRITICISM AGAINST POSITIVE DISCRIMINATION??????

05/02/2023 22NEGATIVE DISCRIMINATION• Any discrimination that harms the actee.Example: Would be a man being denied a job on the basis of race.

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GROUNDS FOR DISCRIMINATION• Fenwick highlighted 4 grounds of discrimination:-

GENDER

RACE

DISABILITY MARITAL STATUS

PHYSICAL APPEARANC

E

05/02/2023 24ANTI DISCRIMINATION LAW• A culture of human rights (particularly in the guise of the principle of non-discrimination) has begun to grow via international treaties such as:-

1. International Covenant on Civil and Political Rights,2. International Convention on the Elimination of All Forms of Racial Discrimination3. Convention on the Elimination of Discrimination against Women 4. Convention on the Rights of the Child5. European Convention on Human Rights

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• These treaties have been incorporated by many countries as their principles and standards are integrated into national laws, prohibiting different types of discrimination, setting up monitoring bodies, and creating systems of redress and reparation.• However, none of these international treaties mandates positive discrimination. But the positive discrimination is recognised as practice which does not breach the anti-discrimination principle

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• How court scrutinize discriminatory practice as decided by Mohd Azmi SCJ in Malaysian Bar v Gov of Malaysia [1987] 2 MLJ 165, • Whether the law discriminatory or not? Good law if not discriminate.• If discriminate is it allowed by constitution or judicial interpretation? If yes, it’s good law, if not it’s void.• Discriminatory law is good law if based on reasonable or permissible classification.

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• In succeeding claiming on discrimination, Abd Malek Ahmad JCA in Ahmad Tajuddin v Suruhanjaya Pelabuhan Pulau Pinang [1997] 1 MLJ 241 stated these elements must fulfil:• Must establish complaint of discrimination where being treated unequally.• Discrimination must be unfair, per se is not actionable unless unfair with elements of harshness or unfairness• Must be injured or harm, demonstrate suffer injury under the law, pecuniary and non-pecuniary.