____________________________________________________________________Malaysia Labour Review vol. 5, no.

1:46-62, 2012

A LEGAL APPROACH TO ENSURE RACIAL EQUALITY IN THE LABOUR

FORCE

Loganathan Krishnan
Universiti Tunku Abdul Rahman
______________________________________________________________________________

ABSTRACT

In the light of internationalization and globalisation, racial equality in the Malaysian labour force is pivotal. Thus,
business organisations must accommodate for racial equality. There ought to be equal opportunities to everyone in
the labour force regardless of their race. Essentially, the Federal Constitution must ensure this objective is achieved.
This study examines whether the constitution provides for racial equality. The study then proceeds to examine the
extent the constitution achieves the above-mentioned objective. The study will also investigate whether the
constitution is in line with international laws. The study unfolds that the current legal provisions in the constitution
are inadequate in dealing with racial equality. The study then explores apposite means to surmount the drawbacks
found in the Constitution, since it is the supreme law of the country. The study concludes that the proposition will
act as a catalyst for transforming the current composition in the labour force. In that case, the labour force in the
country will also be able to magnetize various races both regionally and globally. Ultimately this will facilitate the
country to advance to the assemblage of developed countries in view of Vision 2020.
______________________________________________________________________________

INTRODUCTION

This paper seeks to examine and analyse Articles of Federal Constitution which deal with racial
equality in the labour force. The paper investigates the extent the Articles bestow rights for racial
equality. The paper will also investigate whether there are any rights available under common
law. The paper then proceeds to conduct a comparative study to determine the legal position of
workers’ rights to racial equality under international law. Essentially, the paper examines ways
and means to guarantee racial equality in the Malaysian labour force for the purposes of
constitutional rights of its citizens. Finally the paper explores the initiatives taken by the
executive in eradicating racial inequality and ensuring racial equality.

BACKGROUND OF STUDY

Business organisations cannot operate in a vacuum. This is especially due to the far-reaching
effect of regionalization, internationalization and globalization of businesses in contemporary
years. People are relocating from one country to another in search of improved working
conditions. Admittedly, Malaysia has attracted large number of people from various countries
which forms the labour force. Therefore, business organisations must ensure that there is racial
equality in their respective organisations. This is because fundamentally, employees are a
business organisation’s most valuable resource. 1 If an organization does not cater for racial
equality, it is a big loss to the organization.

1
D Ayadurai, Industrial Relations in Malaysia – Law and Practice, 3rd ed (Kula Lumpur: MLJ, 2004) p 5

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In view of this, laws must keep pace with changes to a community.2 Laws must be able to ensure
there is racial equality in the labour force. Moreover, since Malaysia is a developing nation, it
cannot be oblivious to international trends calling for such equality. This is because equality is
one of the pillars of human rights. Furthermore, Malaysia is a multi-racial country which consists
of Bumiputras (67%), Chinese (24.3%), Indians (7.4%) and Others (9.8%).3 This unique feature
of the country must be reflected in the structure and composition of the labour force. Nonetheless,
the concern is whether the current legal framework in Malaysia effectively facilitates racial
equality in the labour force.

Essentially, a contract of employment is the cornerstone of labour law.4 Nevertheless, there is no

specific legislation dealing with racial equality unlike Race Relations Act 1976 in United
Kingdom. Neither is there any specific provision found in the Malaysian labour laws i.e.
Employment Act 1955 and Industrial Relations Act 1967 dealing with racial equality. Thus, the
only law which deals with racial equality is the Articles of the Federal Constitution.

METHODOLOGY

The methods used in this research are literary research which involves legislations, case-law,
books, journals and media publications of various jurisdictions through the library and electronic
database. Analyses are then made on the relevant legislations and case law using historical
review and analogical reasoning which are legal tools to for research methodology.

DISCUSSION

Article 4(1) provides that the Federal Constitution is the supreme law of the Federation. Thus all
issues concerning constitutional rights should be determined by reference to the constitution.

Nevertheless, the most important issue is the interpretation of the constitution. 5 The
interpretation will determine whether there are any rights bestowed on anyone as regards to
racial equality in the labour force. The court in Hinds v The Queen6 rightfully remarked that a
constitution cannot be interpreted the same way as interpreting statutes. Essentially the
constitution must be interpreted in a broad and liberal fashion adopting a prismatic approach.7
The spirit of the constitution must be examined upon coupled with the intention of framers of the
constitution. Thus it is important for the judge to look into the spirit of the law and not strictly
stick to the letters of the law.8 This is because the Articles are fundamental to the meaning and

2
Nolan, “Certainty and Justice: The Demands on the Law in a Changing Environment” [1999] 26 JMCL 1
3
Population and Housing Census of Malaysia: General Report of the Population Census, Department of Statistics,
Kuala Lumpur, (2006)
4
O Kahn-Freund, “Legal Framework”, in A Franders and H A Clegg (Eds.), The System of Industrial Relations in
Great Britain, (Oxford: Blackwell, 1954) p 45
5
A Harding, “New Asian Constitutionalism: Myth or Reality”, (2006) 14 IIUMLJ 153
6
[1976] 1 All ER 353
7
G S Ram, “The Workman and the Constitution” [2007] 1 MLJ clxxii
8
Denning, “Giving Life to the Law,” 6th Braddell Memorial Lecture, University of Malaya, Kuala Lumpur, August
9, 1975

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____________________________________________________________________Malaysia Labour Review vol. 5, no.1:46-62, 2012

effect of the constitution.9 If the Articles are misunderstood, it is akin to misunderstanding the
whole constitution.10 Ultimately, the validity of the laws are determined by the fact of whether it
produces just or unjust results.11

Every law is said to have an expressive function.12 As for the Federal Constitution, one of its
functions is to protect the rights of the citizens of Malaysia as rightly pointed out by his Lordship
Raja Azlan Shah F.J (as he then was) in Loh Kooi Chon v Government of Malaysia.13 Hence, in
the constitution, there are several Articles which prohibit inequalities. In fact, any laws which
prohibit discriminations are considered as equality laws. 14 It was eloquently remarked that a
constitution is the standard to be measured of a civilized world.15 Most importantly, the Articles
in the constitution will further reflect the truth of whether the nation and its citizens are civilized.

Right to Be Employed

Notably, Article 5(1) of the Federal Constitution provides that no person shall be deprived of his
life or personal liberty save in accordance with law. For many years the term ‘life’ was
interpreted as to refer to mere existence. Thus, when the constitution was drafted in 1957, it was
contemplated that the term “…life…” to mean livelihood.16 However, his Lordship Gopal Sri
Ram JCA in Tan Tek Seng v Suruhanjaya Perkhidmatan & Anor17 interpreted the term to include
the right to seek and be engaged in lawful and gainful employment. Hence, it can be seen that
that the right to seek and be engaged in employment has been given a constitutional footing.18
Additionally the right is considered as a proprietary right of an employee.19 Therefore the right
should not be taken away. Thus this forms the basis of social justice.20

The court followed the views of the Indian Supreme Court decisions in Kharak Singh v State of
Uttar Pradesh,21 Bandhua Mukti Morcha v Union of India,22 Olga Tellis v Bombay Municipal
Corporation 23 and Delhi Transport Corporation v DTC Madzoor Congress & Ors. 24 This is
because Article 5 is akin to Article 21 of Indian Constitution. In the latter the Supreme Court of
India expounded that “…income is the formulation of many fundamental rights and when work

9
C V Das, “Constitutional Supremacy, Emergency Powers and Judicial Attitudes” [1983] 10(1) & (2) JMCL 69
10
R H Hickling, An Overview of Constitutional Changes in Malaysia; 1957-77, in The Constitution of Malaysia: Its
Development 1957-77, (Eds.) Tun Suffian, H.P.Lee, F.Trinidad, (Oxford University Press: Kuala Lumpur, 1978) p 5
11
H L A Hart, The Concept of Law, (Clarendon: Oxford, 1961) p 153

12
R Mullender, “Racial Harassment, Sexual Harassment, and the Expressive Function of Law” (1998) 61(2)
Modern Law Review 240
13
[1977] 2 MLJ 187
14
S Fredman, “Equality: A New Generation?” (2001) 30 ILJ 145
15
H Hashim, “Human Rights in Malaysia”, The Law of the World, Manila, The Philippines, August 21 – 26, 1977
16
J Naidu, “Positive Rights in the Constitution” [2003] 30(1) & (2) JMCL 1
17
(1996) 2 AMR 1617
18
P Perumal, “The Right to Seek Alternative Employment – A Constitutional Safeguard” [2005] 5 MLJ lxxxv
19
Supra at 5
20
L S Mohamed, Q & A on Labour Laws in Malaysia, (Petaling Jaya: Thomson, 2006) p 299
21
AIR 1963 SC 1295
22
AIR 1984 SC 802
23
AIR 1986 SC 180
24
(1991) Supp 1 SCC 600

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is the sole source of income the right to work becomes as much fundamental.” In Olga’s case the
court found that if this right were to be taken away it would mean that a meaningful life is taken
away too.

It should be noted that his Lordship Gopal Sri Ram made the ruling in the context of
employment in the public service. Nonetheless, in Hong Leong Equipment Sdn Bhd v Liew Fook
Chuan & Anor,25 the Court of Appeal ruled that a citizen has a right to be employed even in the
context of private sector. The above rulings are a form of protection for employees whether they
are in the public or private sector.26 Furthermore the Federal Court which is the highest court in
Malaysia, in R Rama Chandran v Industrial Court & Anor27 has approved the ruling made by the
Court of Appeal in Tan Tek Seng v Suruhanjaya Perkhidmatan & Anor and Hong Leong
Equipment Sdn Bhd v Liew Fook Chuan & Anor. Thus, a person has a right to seek and be
engaged in employment as long as the person satisfies the criteria and requirements of the
employment. The concern is whether this right is afforded to all citizens of the country on equal
terms.

Observably, the idea of equality in the eyes of the law which was first introduced by Thomas
Hobbes and John Locke in the 17th and 18th century was popularised in America and Europe.28
Furthermore, it was rightly pointed out that the concept of equality is pivotal in any country
practicing democracy. 29 Since Malaysia is a democratic country, the equality provision is
reflected in the Federal Constitution. Article 8(1) provides that all persons are equal before the
law and are entitled to the equal protection of the law. Furthermore, Article 8(2) provides that
there shall be no discrimination against citizens on the ground of race. Thus race as a ground by
itself has been a source of disadvantage.30 This means that there must be racial equality. The
issue is whether racial equality in the labour force is guaranteed under the Federal Constitution.
A conjoined effect of Article 5 and Article 8 does guarantee racial equality in the labour force.
Therefore every citizen should equally have the right to seek and be engaged in an employment.
This is because these rights are to secure legal justice.31

It is a trite fact that it is the employer’s right to whether employ a person or not. The decision is
left to his discretion. He may stipulate the criteria and the requirements. Even if a person opines
that he has satisfied the requirements and the criteria, there is no absolute guarantee that he will
be employed. He cannot bring an action against his employer if he is not employed. This is
because the job advertisement is merely an invitation to treat as pointed out in Coelho v The

25
(1996) 1 MLJ 416
26
S Pillay, “The New and Multi-Faceted Dimensions of Articles 5 and 8 of the Federal Constitution in the Control
of Administrative Action” (1999) 26(1) JMCL 157
27
[1997] 1 CLJ 147
28
T Y L Kevin, Constitutional Law in Malaysia and Singapore, (Singapore: Malayan Law Journal, 1994) p 596
29
I Buruma, “Is Democracy an Asian Value?”, Time, Oct-Dec 1996, 114
30
H Collins, “Discrimination, Equality and Social Inclusion” (2003) 66(1) MLR 16
31
M Suffian, “Human Rights”, Regional Seminar on Human Rights and Development in Rural Areas in South East
Asia, Penang, Malaysia, November 30, 1981

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Public Services Commission.32 There is no contractual relationship or breach of contract which

entitles the person to bring action.

Nonetheless, where a job advertisement stipulates race as a criteria the organization is in breach
of Article 5 and 8 of the constitution. A prospective worker may institute a claim against the
organization although he is not an employee of the organization. A prospective worker has a
right to be employed under Article 5. If employment is denied on the grounds of race, there is no
racial equality practiced in the organization and it is in breach of Article 8. It does not matter
whether the job advertisement is of public sector or private sector as this issue has been clarified
in Hong Leong Equipment Sdn Bhd v Liew Fook Chuan & Anor.

Article 8(2) reads “Except as expressly authorized by this constitution, there shall be no
discrimination …on the ground only of …race…in the carrying on of any employment. This
Article should not be read in isolation. This is because Article 153 reads that there shall be
reservation for Malays and natives of Sabah and Sarawak in the public service. Thus since the
opening words of Article 8(2) reads “Except as expressly authorized by this constitution…” the
Article must be read with reference to Article 153. This is a legitimate racial discrimination. In
fact, this is considered as positive discrimination. 33 Therefore if there is a job advertisement
which stipulates the Malays or the natives of Sabah and Sarawak in the as a race criteria, it
cannot be argued that it is in breach of Article 8. This is because Article 8 is subject to Article
153. Although there is racial inequality contained in the Article 153, it is allowed by Article 8.
Furthermore Article 153(2) reads “Notwithstanding anything in the constitution …” This
suggests that Article 153 is supreme over Article 8(2).

Nonetheless, Article 153 refers to public service and not private service. Public service is defined
in Article 132 which is the armed forces; the judicial and legal service; the general public service
of the Federation; the police force; the railway service; the joint public services mentioned in
Article 133; the public service of each state and the education service. Thus, if there is a job
advertisement in the private service which requires Malay or natives of Sabah or Sarawak, the
advertisement is in breach of Article 8(2).

Pertinent issues can arise in relation to certain public services which have been corporatised or
privatized. Although the public services have been corporatised or privatized, they still retain the
characteristics of public service. Corporatisation or privatization is simply a mode of carrying on
the services. Thus, they still do fall within the purview of Article 153. Nonetheless, government
link companies do not fall within the purview of public service. Thus such companies must be in
compliance with racial equality clause as provided in Article 8(2). Otherwise the companies can
be in breach of the Article.

A point to be noted is that the Employment Act 1955 and the Industrial Relations Act 1967 will
not apply to the situation set out above since the person is not an employee yet. The legislations

32
[1964] MLJ 12

33
M Aminuddin, Malaysian Industrial Relations and Employment Law, 3rd ed (Malaysia: McGraw-Hill, 1999) p
230

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will only apply from the moment a person has been employed. Nonetheless, there is no specific
provision in the above-mentioned legislations dealing with racial equality.

Rights in Employment

His lordship Gopal Sri Ram JCA in Tan Tek Seng v Suruhanjaya Perkhidmatan & Anor
interpreted the term “…life…” in Article 5 to include the right to seek and be engaged in lawful
and gainful employment. The issue is whether it is only restricted to cases of persons seeking for
employment. If that is the case, it seems that Article 5 does not deal with rights in employment
i.e. rights of persons who are already in employment. This means that Article 5 does not apply to
terms and conditions which discriminate employees on grounds of race. It will also not cover
employment practices and policies which discriminate any race. Thus, the application of Article
5 is restrictive. There is no legal basis that the Article should only apply to those who are seeking
employment and not to those who are already in employment.

The concern is why Article 5 should not apply to persons who are already in employment.
Article 5(1) reads “No person shall be deprived of his life…” If a person is already in
employment and there are terms and conditions, employment practices and policies which
discriminates certain races, it clearly shows that the person has been deprived of his life. This is
in the sense that he has been deprived of fair terms and conditions in his employment. Thus it is
submitted that Article 5 should also include that a person already in employment should not be
deprived of fair terms, conditions, practices and policies.

Additionally, Article 8 needs to be examined in relation to persons who are already in

employment. Article 8(2) reads “Except as expressly authorized by this constitution, there shall
be no discrimination …on the ground only of …race…in the carrying on of any employment.
Thus the Article ensures racial equality to those who are already in employment.

As regards employees in the public sector, Article 136 reads “All persons of whatever race in the
same grade in the service of the Federation shall, subject to the terms and conditions of their
employment, be treated impartially.” This article ensures that there is racial equality in the
treatment of employees in the public sector. Interestingly, the question in the uppermost mind is
why did the framers of the constitution only made provision for racial equality to those who are
in the public sector and not the total labour force generally. Perhaps, Article 5 and 8 were meant
to apply to employees in general whereas Article 136 was meant to apply specifically to those
employees in the same grade.

It should be noted that although special reservation is made for the Malays and natives of Sabah
and Sarawak under Article 153, once a person is employed, the terms and conditions shall be the
same to all employees of the same grade regardless of race. This will also include job promotion.
Nonetheless it is only applicable to those who are in the public sector. Those who are in private
sector will have to rely on Article 5 and 8(2).

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On Grounds of Race

The phrase “…on the grounds of race…” used in Article 8(1) is not defined in the constitution.
Neither is it explained in the ‘Interpretation’ in Article 160. It is also unclear as to whether the
phrase includes colour or ethnic. The House of Lords in Mandla v Dowell Lee34held that the term
race is narrower than the term ethnic. Hence if a particular person does fall within the purview of
race but does fall within the purview of ethnic, the person is not able to rely on Article 8(1). Thus,
there can be discrimination against a person on grounds of ethnic which results to inequality and
yet the constitution is not being breached by the business organization. Nonetheless it is hoped
that the court will apply a liberal approach to the term “…race…” to also include the term ethnic.
Alternatively, it is hoped that the legislature will include the term ethnic for clarity purposes. In
that case it will be easier for the courts to deal with such matters.

Article 8 reads “….there shall be no discrimination against citizens on the ground only
of …race…” It is unclear as to the true intention of having the word “…only…” in the said
Article. It seems that if there is discrimination on grounds of race and other matter, the
discrimination is allowed. On the other hand, if the discrimination is on the ground only of race,
it is not allowed. Thus, the term “…only…” has restricted the scope of Article 8. Rightfully the
term “…only…” should be removed by the legislature. Thus, as long there is discrimination
which involves race, it should be prohibited by Article 8.

Discrimination

The term discrimination is not defined in the constitution. Neither is it explained in the
‘Interpretation’ in Article 160. The term is interpreted as to treat differently because of
prejudice. 35 Thus it was aptly put as unequal treatment. 36 In cases where there is a clear
discrimination on grounds of race, it is not an issue. This is because discrimination can be found
in policies, procedures, rules or practices in a particular organization.

However, difficult issues can arise in cases where there is an indirect discrimination. For instance
a job advertisement indicates that one of the requirements is to be conversant in Mandarin or
Tamil. In this situation, it is a discrimination against those who do not speak those languages.
This is especially because these are not the national language or the compulsory languages in
Malaysia. Arguably if language proficiency is required given the nature of the job and the
working environment, it could be justified. The burden is on the employer to prove that the
discrimination is justified. However, in cases where it cannot be justified it is unclear whether
such discrimination falls within the purview of Article 8(2). This is because the Article refers to
discrimination on grounds of race which concerns direct discrimination. The Article does not
stipulate that there cannot be discrimination on the grounds of language.

34
[1983] 2 AC 548
35
E M Kirkpatrick, Chambers 20th Century Dictionary, (Edinburgh: Chambers, 1983)
R Benedictus & B Bercusson, Labour Law - Cases and Materials, (London: Sweet & Maxwell, 1987) p 191
36

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On the other hand, it can be argued that since such languages are only spoken by certain races, it
is discrimination against the other races which, a majority population of the respective race, do
not speak the said language. Therefore it is a breach of Article 8(2).

A further issue on this point is job advertisements which are particularly advertised in vernacular
media publication. The population reading Chinese or Tamil newspapers must have been the
population which is conversant with those languages. Again it can be seen that this is an indirect
discrimination against those who are not conversant in those languages.

That brings us to another issue of whether job advertisements in the Malay newspapers or job
advertisements which require proficiency in Malay language are considered as indirect
discrimination against the natives of Sabah and Sarawak, Chinese or the Indians. On this point
reference must be made to Article 152 which provides that the national language shall be the
Malay language. Thus, it is legal duty of all citizens in Malaysia to be conversant in the said
language. The fact that there is job advertisement in the Malay newspapers does not amount to
discrimination be it direct or indirect. This is because all citizens are expected to be proficient in
the language. If a particular person chooses not to buy Malay newspapers and instead he buys
vernacular newspapers, he cannot later argue of discrimination in cases where job advertisements
are only found in the Malays newspapers and not in the vernacular newspapers. He also cannot
argue that since the job advertisement requires proficiency in Malay language, it is
discrimination.

Public law v Private Law

A point to be noted is the observation made by his Lordship Abdul Malek Ahmad in Beatrix
Fernandez v Malaysian Airline System37 at the Federal Court that Article 8 can only be invoked
where a particular law or action of the executive is discriminatory. Further, constitutional law, as
a branch of public law, deals with the contravention of individual rights by the legislature or the
executive. Essentially constitutional law does not apply in cases where there have been
infringements of an individual’s legal right by another individual. The observation made by his
Lordship should also mean that Article 5 falls under constitutional law and thus under public law.

If the above observation is correct in law, it means that Article 5 and 8 cannot be used by any
person whether he is a prospective employee or current employee as against his prospective
employer or employer respectively. Thus, such a person is left without any recourse to justice.
Furthermore, as noted earlier, there is no specific legislation which deals with racial equality in
the labour force. Neither are there any specific provisions in the Employment Act 1955 and the
Industrial Relations Act 1967 which deal with racial discrimination. This means that there can be
racial discrimination. There are no rights available to citizens if there is racial discrimination by
another individual.

37
[2005] 3 MLJ 681

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Notably, Article 5 and 8 falls under Part II of the constitution titled Fundamental liberties.
Nonetheless the constitution does not explain the meaning of fundamental liberties in the
interpretation Article 160. It was also not explained in the Reid Commission which drafted the
Federal Constitution. Fundamental liberties under Part II are the most fundamental of all
fundamental rights.38 These fundamental rights are akin to human rights.39 Thus, the concern is
whether the framers of the constitution intended the Articles to only apply in areas of
constitutional law, particularly public law. Fundamental liberties must be available to all citizens
irrespective of who caused the discrimination. It could not have the intention of the framers of
the constitution that Part II shall only apply to those actions by the executive i.e. to those
employees in the public service.

If Article 8 should only apply to cases where there has been discrimination, by the legislature or
the executive, this needs further analysis. For instance, if a person belongs to public service and
he has been discriminated on the grounds of race, Article 8 should apply, holding such an action
unlawful based on the observation made by his Lordship. This is because the action is by the
executive. Nonetheless, if the action is by an employer in the private sector, arguably Article 8
should not apply. If such is the case, there is no equality between those who are in public service
with those who are in the private sector. Article 8 provides that all persons are equal before the
law. Clearly it seems that employees in the public service are not equal to those employees in the
private service. It is in this situation where Article 8 becomes crucial. Furthermore Article 8
provides that all persons are …entitled to the equal protection of the law. Again it seems that
only those who are in the public service are protected by the article.

Furthermore Article 136 provides that there shall be impartial treatment of federal employees.
The framers of the constitution intended the Article to only apply to employees in the public
sector. Article 5 and 8 does not employ the term “…federal employees…” In fact the term used
in Article 5 is “No person…” and in Article 8 is “All persons…” Such terms are used in a
general sense. There is no indication that the persons refer to those in the public service unlike
Article 136. Thus, it is respectfully submitted that the fundamental liberties should be available
to all citizens irrespective whether they are in the public sector or private sector as long as there
discrimination on the grounds of race. Essentially this will ensure there is racial equality in the
labour force.

Common Law Duty of Employer

Employment relationship is the relationship between the management and employees in an

organization.40 Thus, it is a trite law that the common law duties of employers are implied into
all contracts of employment. 41 The House of Lords in Scally v Southern Health and Social
Services Board 42 remarked that such terms are important for the business efficacy of an
employment relationship. The main reason such a term is implied is for fairness.43 One of the

38
A Harding, Law, Government and the Constitution in Malaysia, (London: Kluwer, 1996) p 209
39
A Bari, “Right to Life under the Federal Constitution and Environmental Issues” [1999] 1 MLJ lx
40
T C Huat, Employment Relations in Singapore, 3rd ed (Singapore: Prentice Hall, 2002) p 1
41
M Sargeant, Employment Law, 2nd ed (Harlow: Longman, 2003) p 92
42
[1991] IRLR 522 HL
43
A A Mohamed, “Implied Term of Trust and Confidence in Contract of employment” [2005] 3 MLJ xxi

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duties of employers relevant to this paper is to treat his employees with respect and trust. This
was first recognized in Lamb v Evans.44

Thus he should not be treated in an arbitrary or vindictive manner.45 Lord Steyn in Malik v Bank
of Credit and Commerce International SA, in liquidation 46 eloquently stated that it is the
obligation of the employer to ensure that his employees’ interests are not being unfairly and
improperly exploited. The employer should ensure that he does not act in a manner likely to
destroy the employment relationship.47

There have not been any cases under this heading which involve racial discrimination. Perhaps
this is because in the United Kingdom, there is a specific legislation which addresses racial
discrimination. Thus there is no real need of resorting to common law protection. However, an
issue concerning sexual harassment was brought under this heading in the case of Wood v
Freelander.48 Nevertheless in the context of Malaysia, the common law protection may serve to
be useful. This is because of the absence of specific legislation dealing with racial discrimination
and any provision in the Employment Act 1955 and the Industrial Relations Act 1967 dealing
with racial discrimination.

Sexual discrimination is similar to racial discrimination except that the grounds differ. Arguably
the duty of the employer to treat his employees with respect can include racial discrimination.
This is because the duty of the employer is to treat his employees with trust and respect. If in the
event there are any policies, procedures, rules or practices which favour certain races to the
disadvantage of another race, this is an instance where the employer is not showing respect to the
affected employees. The employer does not treat all his employees with equal respect. Thus there
is no racial equality in the organisation. In such a situation, the employer has breached the
implied term of the contract of employment. If it can be shown that the breach is fundamental,
the employee could resign and later bring an action for constructive dismissal. The employee
could make a claim by virtue of S. 20 Industrial Relations Act 1967 on the grounds that he has
been dismissed without just cause.

Legal Policies

The government issued the National Labour Policy in 1986 to accelerate economic growth and
enhance the quality of life of the labour force.49 One of the objectives is to create a harmonious
industrial relations climate so that the energies of the management and labour could be channeled
effectively. Thus, if there is no racial equality practiced by an organization, it will create a
disharmonious environment. This will further create conflict between the employees who are
aggrieved and the management. It could lead to major problems such as trade disputes i.e. strike,
picketing or lock-out.

44
[1893] 1 Ch 218
45
A Charles, A – Z Guide to Employment Practice, (Singapore: CCH Asia, 2004) p 133
46
[1997] IRLR 462 HL
47
I T Smith & J C Wood, Industrial Law, 4th ed (Butterworths: London, 1989) p 159
48
(1977)
49
C V Shian, Industrial Relations Skills for Managers, 2nd ed (Singapore: CCH, 2007) p 3

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Thus, it is hopeful that business organizations will bear in mind the policy as a benchmark to
ensure that there is consistent practice of racial equality in the organization not only to those who
are seeking employment but also to those who are already in employment.

Beginning 2008 all public-listed companies must disclose the race of their employees in their
annual reports. 50 This is part of measures for corporate social responsibility. The concept of
corporate social responsibility is initially seen as the responsibility discharged by a business
organization to the community. Nonetheless the concept has been extended to include good
labour practice. Furthermore its sets the stage for an age in need of greater transparency and
accountability by companies 51 This will be redefining the new business culture in Malaysia.
Furthermore this is to promote Malaysia’s multi-racial society.52 Tan Sri Nor Mohamed Yakcop
stated that business organizations should recruit people of all races.53

Comparative Approach

There is much pressure by developed countries and international bodies on developing countries
to ensure there is minimum protection afforded to employees.54 Nonetheless this is seen as a way
to reduce competition between developing countries and developed countries. In the legal regime
there must be adequate protection given to employees. Since laws of different countries differ,
reference is made to international law to determine the benchmark for employment rights.

International Labour Standards have an influence on the legislative framework of Malaysia since
Malaysia is a member of the International Labour Organisation (ILO). This is because
establishment of uniform labour standards is a matter of both justice and humanity.55 Thus, the
ILO established ‘International Labour Standards’ in order for these standards to have
international effect.56 One of the concerns of the standards is the freedom from discrimination in
employment and occupation. The discrimination includes race and therefore employers are
prohibited from discriminating employees on grounds of race. The General Conference of the
ILO meeting in its Twenty-sixth Session in Philadelphia provides that all human beings,
irrespective of race and creed have the right to pursue their material well-being in conditions of
freedom and dignity of economic security and equal opportunity [Part II (a)].

By virtue of Article 22 ILO Constitution, member states are required to make an annual report to
the ILO office on the measures which it has taken to give effect to the provisions of convention
to which it is a party. Malaysia being a member state of the ILO is obliged to do the same.

50
Moves to Promote Listed Firms’ Social Responsibility, (New Straits Times, September 8, 2007)
51
Creating a New Business Culture, (New Straits Times, September 10, 2007)
52
Ibid
53
Government Won’t Punish Firms over CSR Rule, (New Straits Times, September 10, 2007)
54
R W Rideout, “The Changing Face of Employment Protection” [1997]24 JMCL 1
55
N Valticos, “The International Labour Organization,”, The Effectiveness of International Decisions: Papers of a
Conference of the American Society of International law and the Proceedings of the Conference, Stephen M.
Schwebel, (Ed.), (1971), p 134
56
R August, International Business Law: Text, Cases and Readings, 4th ed (Pearson: New Jersey, 2004) p 430

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Nonetheless, it is yet to enact a specific legislation prohibiting direct and indirect racial
discrimination in the labour force. Arguably, there may not be a need to do so considering that
the Federal Constitution does deal with aspects of racial discrimination in the labour force.
Nonetheless, the concern is whether the protection afforded by the Articles of the Federal
Constitution is in tandem with the legal position under international law.

The basic international law is found in the Universal Declaration of Human Rights (UDHR).
Malaysia became a member of United Nations on 17th September 1957 and thus is bound by the
declaration.

Article 1 UDHR provides that all human beings are born free and equal in dignity and rights. No
human is superior or inferior. There is no equivalent article in the Federal Constitution. Further,
Article 2 UDHR provides that everyone is entitled to all the rights and freedoms set forth in this
Declaration, without distinction of any kind, such as race, colour or language. This means that
everyone has the right to be employed. Additionally, Article 3 UDHR provides that everyone has
the right to life, liberty and security of person. The term security includes employment security.
Moreover, Article 7 UDHR provides that all are equal before the law and are entitled without
any discrimination to equal protection of the law. This is equivalent to Article 8 of the Federal
constitution. Finally, Article 23(a) UDHR provides that everyone has the right to work.

The conjoined effect of the Articles is that there should not be any discrimination in the labour
force on grounds of race, creed, colour or language. Thus, race, creed, colour or language should
not be the determining factor in employing or advancing career prospects of a person. It should
be noted that the declaration concerns about discrimination on grounds of colour and language
which is not covered by the Federal Constitution. Thus, those job advertisements which, sets
Mandarin or Tamil language as a criteria for employment is in breach of the declaration. It will
be a case of direct discrimination. However those job advertisements in vernacular newspapers
will be considered as indirect discrimination on the grounds of language since only those who
are conversant in those languages will be able to read the newspapers...

Notably the declaration is not a treaty and thus it was felt that it is not legally binding. 57
Nonetheless the US court in De Sanchez v Banco Central de Nicaragua58 has considered it as
customary international law. Thus, it does have legal weight. Furthermore by virtue of the
adoption of The International Covenant on Economic, Social and cultural Rights on December
18, 1966, the UDHR is given the force of treaty law.

Nonetheless, it should be noted that the International Convention on Discrimination

(Employment and Occupation) 1958, International Convention on the Elimination of All Forms
of Racial Discrimination (CERD) 1965 and International Declaration on Race and Racial
Prejudice 1978 are yet to be ratified by Malaysia. Perhaps this is because Malaysia is in a legal
dilemma whether to ratify the said convention due to the presence of Article 153 which favours
the special position of the Malays and the natives of Sabah and Sarawak. Malaysia still being a

57
J L Kunz, “The United Nations Declaration of Human Rights” (1949) Vol 43 American Journal of International
Law 316
58
(1992) 88 ILR 76

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developing nation is obliged to safeguard the special position of the Malays and natives of Sabah
and Sarawak.

If Malaysia were to ratify the conventions, it would have to amend Article 153. Otherwise, it
would be in breach of the conventions. Given the present economic state of the Malays and the
natives of Sabah and Sarawak, Malaysia is not ready to amend Article 153. Thus the conventions
will be not be ratified at the present moment.

In the United Kingdom, there is a specific legislation looking into racial discrimination and
equality which is the Race Relations Act 1976. In fact it is a powerful influence to the fight to
eliminate discrimination on racial grounds.59 The Act was further amended in 2000. The Act also
prohibits segregation on the grounds of race. The term segregation is less harsh than
discrimination. In fact, the law relating to unlawful discrimination in employment has been
developed to a large extent due to force of European laws.60

There are also specific legislations dealing with racial equality in the labour force in Australia
and Canada which are Racial Discrimination Act 1975 and Racial Discrimination Act 1944
respectively.

CONCLUSION

In the world of regionalization, internationalization and globalization, business organizations are

competing with each other to enhance their market value. Organisations are competing with each
other to employ and retain the best employees. This is especially due to the emergence of human
capital. Nonetheless, there should not be a criteria or requirement of a certain race, creed, ethnic,
language or colour for employment purposes. If such criteria are allowed there is no racial
equality in the labour force. This will create a bigger damage that is racial hatred or eventually
racial xenophobia. On the other hand people are competing with each other to seek and be
engaged in a lawful employment. People are in search of better working conditions. Nonetheless
if race, creed, ethnic, language or colour is a criteria or requirements for employment purposes,
then it is not a level playing field. Fundamentally, it will hinder the due course of national
progress and development. Be that as it may the laws i.e. the Article of the Federal Constitution
should not be the cause of racial inequality in the labour force. The fundamental liberties as
enshrined in the constitution and as intended by founding fathers of the nation must truly
guarantee racial equality for everyone in the labour force. This is an uphill task but it can be
achieved as this will facilitate the country to advance to the assemblage of developed countries in
view of Vision 2020.

59
N M Selwyn, Law of Employment, 7th ed (Butterworths: London, 1991) p 127
60
A C Bell, Employment Law, 2nd ed (Sydney: Thomson, 2006) p 59

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