EQUALITY

ARTICLE 8

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 Art 8(1) FC

All person are equal before

the law and entitled to the
equal protection of the law.
Available to
citizen and non
citizen

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Equal Before the Law - Equal
Protection Under the Law
– A8 consists of a number of related aspects;
• equal treatment, equal protection and prohibition
against discrimination.
“Equal before the
law”
The principle under
which each
individual is subject
to the same laws,
with no individual or
group having special
legal privileges.
• Dimensions:
 Absence of privileges
 Equal punishment – if accused of like offences
 No arbitrariness- in the exercise of legislative power and
administrative discretion
 Procedural fairness
 Proportionate penalty
 Legal aid
PP v Khong Teng Khen [1976] 2 MLJ 166

Suffian LP ruled that:

• The underlying principle of Article 8 is that “ a law must
operate alike on all persons under like circumstances, not
simply that it must operate alike on all persons in any
circumstances.”
• Article 8 essentially means that “a person in one class should
be treated the same as another person in the same class.”
 PP v Tengku Mahmood Iskandar [1973] 1
MLJ 128
• Justice Raja Azlan Shah (as His Majesty was then), in
enhancing the penalty for an offence committed by a Prince
of a royal house, stated:
– “Article 8 of the Constitution…implies that there is only one kind of
law in the country to which all citizens are amenable.”
 Hong Leong v Liew Fook Chuan [1996] 1
MLJ 481
• Equality clause of the Constitution can be used to require
public administrators to observe the duty of procedural
fairness towards all citizens. Adjudicators must give reasons
for their decisions.
To strengthen the ideal of equality before the law in Article 8(1),
Article 8(2) forbids discrimination on five
enumerated grounds in some specified areas of
life.
1. Religion – in any law or;
– in the appointment to any office or
2. Race employment under a public
authority or;
3. Descent
– in the administration of any law
4. Place of birth relating to the acquisition, holding
or disposition of property or
5. Gender
– the establishing or carrying on of
citizen any trade, business, profession,
only! vocation or employment
 How about
qualifications,
seniority,
residence???
 Article 8(3) & (4)
• It is forbidden to discriminate against anyone
on the ground that:
– (3) he is subject of a Ruler
– (4) he is carrying on business outside the
jurisdiction of a public authority
Constitutionally Permissible Exceptions
ARTICLE 8(5) Expressly exempted various kinds of
discrimination such as;
1.Provisions under personal law
2.Provisions restricting employment in establishments
established by certain religious groups
3.Provisions to protect the well-being of the aborigines of
the Malay Peninsula
4.Provisions prescribing residence in appointment or
election for state offices
5.Provisions in the State Constitution which has already
existed before 1957 (Merdeka Day)
6.Provisions for the enlistment in the Malay Regiment to
Malays 12
• Other provisions….
 Article 145 (3) & (3A)- Power of Attorney General
 Privileges and Immunities
 Official Religion
 Gender bias- eg in citizenship laws, personal laws and laws
relating to the natives of Sabah and Sarawak
The right of equality under Article 8
is not absolute, it is qualified in
2 ways:
1. by express constitutional
provisions; and
2. by judicial interpretation
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1. Express Constitutional Provisions
• The basis of this type of exception is the phrase at the beginning of
clause (2) “except as expressly authorised by this constitution”
• The FC contains numerous provisions providing for this power but
still valid
• Examples;
- Article 8(5) contains a list of ‘valid’ discrimination
- Article 153- special position of the Malays and the Natives of
Sabah and Sarawak
- Article 181 gives privileges to the rulers
- Various provisions give special position to Islam – Article 3,
Article 11, Article 12
*All these are valid no matters how discriminatory people
think they are unless amended 15
 B v. Comptroller of Inland Revenue
[1974] 2 MLJ 110
• Involving section 72 of the Income Tax Act. A specific
provision relating to tax on the income of Hindu joint families
• The provision is such that you can argue that it is unfair for
the Hindus
• The argument is that it is invalid because it is discriminatory in
nature
• The Federal Court rejected his claim on the argument that
Article 8(5) expressly allows discrimination in the area of
personal law

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 2. Judicial Interpretation
• The judges in the process of interpreting the actual provision,
provide exceptions (also called as Common Law Exceptions)
• In principle, the judges had decided that equality is not
absolute, equality is equal justice
 PP v Su Liang Yu [1976] 2 MLJ 128
• Section 418A was challenged as unconstitutional. But the
challenges failed. The courts were reluctant to question an
Act of Parliament.

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 Reasonableness of Discrimination
• The doctrine that judges had introduced to qualify
equality is known as the doctrine of reasonable
classification/rational classification/doctrine of
classification
• This doctrine is used by judges in determining the
reasonableness of discrimination
• This is when the executive or the legislature
differentiate between groups of persons on a ground
other than one prohibited by Article 8 (2).
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• 2 requirements:
1- Intelligible Differentia
2- Nexus
• ID- the basis of the discrimination must be clear and
rational
• N- link or connection. There must be a direct link
between the discriminatory subject matter with the
object sought to be achieved by the discrimination
• E.g. to discriminate the Bumis and non Bumis in Criminal
law-no nexus

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• Professor M.P. Jain: Classification to be reasonable should fulfill two
tests:

1- It should not be arbitrary. It should be based on intelligible differentia

which distinguishes persons or things grouped together in the class
from others left out of it.

2- The differentia adopted as the basis of classification must have a

rational relationship to the object sought to be achieved by the statute
in question.
• The governing principles of law on Article 8 of the Federal Constitution was succinctly laid
down in the case of Datuk Haji Harun bin Haji Idris v Public Prosecutor [1977] 2 MLJ 155
 Suffian LP in referring to the Indian Supreme Court case of Shri Ram Krishna Dalmia v Shri
Justice SR Tendolkar & Ors [1958] AIR 538, held that a law that discriminates is good law if
it is based on reasonable or permissible classification. Two conditions must be satisfied,
that is:

(a) the classification is founded on an intelligible differentia which distinguishes persons

that are grouped together from others left out of the group; and
(b) 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. What is necessary is that there must
be a nexus between the basis of classification and the object of the law in question.
• According to cases, different judges apply the same doctrine
may reach different decision (the requirements are
subjective)
• PP v Tengku Mahmood Iskandar [1973] 1 MLJ
128
- The High Court substituted a more severe sentence for a
lesser one imposed by the court.
- In enhancing the penalty for an offence committed by a Prince
of a royal house, Justice Raja Azlan Shah stated: Article 8 of
the Constitution…implies that there is only one kind of law in
the country to which all citizens are amenable.

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Datuk Harun Idris v PP [1976] 2 MLJ 116
- This case involved Section 418A of CPC which allowed the AG to transfer
the case from the lower court to the higher court.
- He argued that such a power such a power is unconstitutional being
contrary to Article 8 (discriminatory)
- Disadvantage to him-heavier sentence-lost one level of appeal
- In deciding this case, the court further elaborated the doctrine of
reasonable classification stressing the requirement of the discrimination
- There must be an objective sought to be achieved and there must be link
between the discrimination and the objective
- The court held: S418A is constitutional on the reason that cases which
come before the court are not the same. This particular case involved a
public figure and attracted a public attention. Therefore it is more suitable
to heard in the High Court.
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cont.
• After that, a new provision A145 (3A) was inserted-wide power to AG
Johnson Tan Han Seng v PP [1977] 2 MLJ 66
• Multiplicity of statutes to cover the same offence is not unconstitutional
provided that the law provides some rational criterion to guide the AG’s
discretion on which law is to be invoked in what circumstances.
Malaysian Bar Council v Govt of Malaysia [1987] 2 MLJ
165
• The case involved an amendment to S46(1)(a) of the Legal Professions Act
• According to this amendment, the membership of the Bar Council, the
state bar committee and the committee of the bar council are limited to
lawyers of not less than 7 years standing
• The Bar Council felt that this was discriminatory
• Harun Hashim J: the amendment is invalid as far as it applies to the
committee of the bar council but valid for the other committees
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cont.
• Bar council appealed and govt also appealed
• Went up to the Supreme Court, decided in majority 2:1: the
amendment was valid for all levels.
• Held: the bar council is the higher legal body. Therefore it is in
the interest of the public that it is governed by senior
members
• Tun Salleh Abbas dissented. He argued that the amendment is
unconstitutional at all levels. It is unreasonable to
discriminate junior judges. The classification is arbitrary and
without sufficient nexus with the objective of the amendment
of the law.
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cont.
Merdeka University Bhd v Govt of Malaysia [1981] 2 MLJ
356
- The literal approach was taken by the courts in this case where Abdoolcader
J held that the plaintiff, a corporate body could not invoke equality
provision as it was not a citizen.
- The challenge arose out of the govt’s rejection of an application to establish
a private university using Chinese language
Ahmad Tajudin Ishak v Suruhanjaya Pelabuhan Pulau
Pinang [1997] 1 MLJ 241
- It was held that discrimination per se is not actionable. In order to succeed
the plaintiff must prove that the alleged discrimination was both unfair and
resulted in harm or injury.
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MATERNITY PROTECTION & GENDER
DISCRIMINATION UNDER ARTICLE 8(2) OF THE
FEDERAL CONSTITUTION
Beatrice A/P At Fernandez v Sistem
Penerbangan Malaysia [2005] 3 MLJ 681
- Issue: whether the terms & conditions under a collective
agreement which required stewardess in Malaysia Airline, the
national carrier, to resign on becoming pregnant
- The Court applied a literal approach & held: the Constitution
only dealt with infringements of rights committed by the
Legislature & Executive

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- A collective agreement which was between an employer & a
trade union of workmen was not ‘law’ within the scope of
Article 8
- Article 8 recognizes that all persons by nature, attainment,
circumstances and the varying needs of different classes of
persons often require separate treatment.

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• Federal Court:
 Article 8(2) of the Federal Constitution can only apply in cases where
discrimination occurs between the nation's executives, or its agencies and
not discrimination between a private individual against another private
individual.
 The job requirements of flight stewardesses are quite different from that of
women in other occupations including the other categories of women
employees in the same collective agreement. There are occupational benefits
peculiar to the job which are not available in other occupations. Likewise,
there are special conditions applicable peculiarly in this occupation, which
the first respondent as the employer was entitled to impose.
 AirAsia Bhd v Rafizah Shima bt Mohamed Aris [2014] 5 MLJ
• The respondent had signed an agreement with the appellant which contained a clause (‘cl
5.1 (4)’) forbidding her from getting pregnant during the duration of a four year aircraft
maintenance engineering training programme she was chosen to undergo. The clause
provided that if she did get pregnant it would be a repudiation of the agreement. The
appellant terminated both the agreement and her employment when it found the
respondent became pregnant during the final year of the course.
• The appellant obtained judgment for agreed liquidated damages of RM92,000 against the
respondent in the sessions court but the same was set aside on appeal. The respondent
applied to the High Court to declare void cl 5.1(4) for being, inter alia, in breach of arts 8 and
11 of the Federal Constitution, the United Nations Universal Declaration of Human Rights
and the Convention on the Elimination of All Forms of Discrimination against Women.
• The High Court allowed the respondent’s application.
• Court of Appeal allowed the appeal and set aside the decision of the High Court and held:
• (1) Clause 5.1(4) of the agreement did not discriminate against the rights of women. All
clauses in the agreement, especially cl 5.1(4), did not restrain marriage and/or prohibit
pregnancy if the respondent had completed the training programme in the manner
stipulated in the agreement.
• (2) CEDAW did not have the force of law in Malaysia because the same was not enacted
into any local legislation. For a treaty to be operative and enforceable in Malaysia, it
required legislation by Parliament. Without express incorporation into domestic law by an
act of Parliament following ratification of CEDAW, the provisions of the international
obligations in CEDAW did not have any binding effect. Ratification alone did not make the
provisions of treaties applicable for municipal law. Also, in Malaysia, the Federal
Constitution was silent as to the primacy of international law or municipal law or vice
versa. If there was a conflict, the general rule was that the statute would prevail.
• (3) The High Court erred in law and facts in not following the
Federal Court’s decision in Beatrice’s case. It was clear the
agreement between the appellant and the respondent was a
lawful contract between private parties. Beatrice’s case
essentially stipulated that constitutional law, as a branch of
public law, only addressed the contravention of an individual’s
rights by a public authority. High Court judges must observe
judicial precedents in the interest of finality and certainty in
the law and for orderly development of legal rules.
 Norfadilla binti Ahmad Saikin v Chayed bin Basirun & Ors [2016] MLJU 1191
• a case of breach of an employment contract brought forth on the basis of gender discrimination.
• the Plaintiff was an applicant for a position as a Guru Sandaran Tak Terlatih ("GSTT"). The Plaintiff
was called for an interview, of which it entails she was called to collect a Placement Notice and
attend a briefing. The Plaintiff did not divulge her state of pregnancy to the interviewer and neither
did the interviewer query the Plaintiff of any pregnancy. The Plaintiff attended the briefing to collect
the Placement Notice and during the briefing, the attendees were asked to come forth if any of
them were in the state of pregnancy. The Plaintiff with two others came forth and consequently had
their Placement Notices retracted. Over a course of time, the Plaintiff exchange correspondences
requesting for a reinstatement, to which all was denied by the Defendants.
• The Plaintiff file an Originating Summons against the Defendants for a declaration that the
Defendants' decision to retract the GSTT position was unlawful and infringes her constitutional
rights enumerated in Article 8(2) of the Federal Constitution and also claimed for compensation as
well as damages.
• Issue: on the proper quantum of damages and compensation to be awarded to the Plaintiff (appeal
by the defendants)
• High Court:
 this case is between the Executive or its agencies and a private individual,
thus the protection against discrimination applies in this case.
 although the Plaintiff is entitled to general damages for the infringement of
her constitutional rights, the massive amount which was assessed and
awarded by the learned Deputy Registrar is clearly unjustifiable, excessive
and allows profits to the Plaintiff's benefit.
 the Court reverses the decision of the learned Deputy Registrar and orders
that the general damages allowable to be reduced to the amount of
RM30,000.00 for the deprivation of the Plaintiff's constitutional rights, and
all of the Plaintiff's emotional and mental distress as well as hardships.
• Despite its great potential, art 8(2) may also suffer from the same limitations of art 8(1) as seen in the Beatrice Fernandez
case if it does not apply to private agreements and if the determination of 'discrimination' is to be made subject to the
reasonable classification or formal equality approach.
• In analyzing the scope of art 8(2), even in cases that have come before the courts, the interpretation of the right to non-
discrimination has not been consistent.
• The High Court decision in Noorfadilla that CEDAW could be referred to in 'clarifying' the meaning of discrimination under art
8(2) of the Federal Constitution, was a progressive development.
• However, it was not followed by the Court of Appeal in Rafizah Shima.
• The decision means that until CEDAW is incorporated into local law by way of legislation, women's human rights remain a
limited state obligation, as CEDAW is deemed to apply only in respect of Malaysia's international and not domestic
obligations.
• Despite the guarantee of a fundamental right to non-discrimination on the ground of gender under the Federal Constitution,
women workers may not get the protection they seek in relation to pregnancy or maternity discrimination at the workplace.
• Further, other forms of gender based discrimination may also not be challenged in the courts, unless the public law element
is satisfied.
• The restrictive interpretation of the right to non-discrimination and women's human rights by the higher courts therefore
remains as a matter of grave concern.
(Dr Jashpal Kaur Bhatt, 2017)
Other cases
Muhamad Juzaili bin Mohd Khamis & Others v State
Government of Negeri Sembilan & Others [2014] MLJU 1063
• Facts: The three transgenders are Muhamad Juzaili Mohamad Khamis, 26, Syukor Jani, 28, and Wan Fairol
Wan Ismail, 30. In their judicial review, the three who are bridal make-up artists claimed that Section 66 of
the Syariah Offences Enactment of Negeri Sembilan did not apply to them as Gender Identity Disorder
sufferers.

• The HC of Seremban had dismissed the application for judicial review.

• COA: In allowing the appeal the judges declared that section 66 of the Syariah Criminal Enactment 1992
(Negeri Sembilan) ("section 66") is void by reason of being inconsistent with the following Articles of the
Federal Constitution, namely, - Art. 5(1); Art. 8(1); Art. 8(2); Art. 9(2); and Art. 10(1)(a).

• FC: The Respondent argument that the legislation on Islamic Law passed by the state legislature must
comply with the provisions on fundamental liberties in Art.5(1); Art. 8(1); Art. 8(2); Art. 9(2); and Art.
10(1)(a) is an argument that directly questions the legislative powers of the state legislature.
• The Respondent had failed to follow the specific procedure as laid down in clauses (3) and (4) of the Article
4 of the FC. The learned judges of the Court of Appeal as well as the High Court were in grave error in
entertaining the Respondent’s application to question the validity/constitutionality of section 66 by way of
judicial review.
 Khairuddin bin Abu Hassan lwn Kerajaan Malaysia dan satu lagi [2017] 7 MLJ 713
• The applicant was accused for an attempt to sabotage under s 124L Penal Code. Based on
the criminal motion filed by the applicant, the High Court judge ruled that a criminal
charge on the applicant was not classified as a charge under the provisions of the Security
Offences (Special Measures) Act 2012.
• The public prosecutor subsequently appealed against the decision and at the same time,
the applicant filed the present action claiming that the second respondent had breached
s 50(2) and (2A) of the Courts of Judicature Act 1964 for placing reliance on s 50(3) of the
Act in filing the appeal. The applicant stated that s 50(3) of the Act placed the
respondents at a better stage than the applicant in the process of adducing the criminal
appeal, therefore, it violated the provisions of art 8 of the Federal Constitution
• The issue for determination was whether s 50(2) and (3) of the Act was in contrary to art
8(1) of the Constitution.
The High Court dismissed the applicant’s application and held:

 It is not possible in all circumstances that the law is enforced

equally to everyone. It is not true that it violated art 8(1) of
the Constitution. Based on the principle of ‘intelligible
differentia’, the purpose of which is said to be selected and
unequal under art 145(3) of the Constitution cannot be said to
be contrary to art 8 of the Constitution as well as s 50(3) of
the Act.
 Lim Guan Eng v Public Prosecutor and another appeal [2018]
1 MLJ 433
• Court of Appeal: Section 62 of the MACC Act 2009, when
viewed together with the current s 51A of the CPC,
discriminated unfairly and unreasonably against the
appellants as compared to the prosecution. Section 62 of the
Act was unconstitutional vis a vis arts 5(1) and 8(1) of the FC.
This was further fortified when viewed from the principle of
‘equality of arms’
• Equality of Arms- The right to a fair trial entails protecting the
‘equality of arms’ principle, an inherent element of the due process of
law in both civil and criminal proceedings. Strict compliance with this
principle is required at all stages of the proceedings in order to afford
both parties (especially the weaker litigant) a reasonable opportunity
to present their case under conditions of equality. Indeed, at the core
of the concept of ‘equality of arms’ as elaborated in domestic and
international case law, is the idea that both parties should be treated
in a manner ensuring that they have a procedurally equal position to
make their case during the whole course of the trial.
• Federal Court: Section 62 was constitutional and therefore set
aside the ruling made by the Court of Appeal which ruled the
section read together with Section 51A of the Criminal
Procedure Code was ultra vires of Article 5(1) read together
with Article 8(1) of the Federal Constitution.
• According to the Federal Court, Section 62 does not preclude
the defence from tendering additional documents during trial
as provided under the Evidence Act.
Suffian LP in Datuk Haji Harun bin Haji Idris v Public Prosecutor [1977] 2 MLJ 155 laid several
principles pertaining to equality under Article 8.
1. Equality provision is not absolute
2. Equality provision is qualified and exemplified by Article 8(5) and Article 153.
3. The prohibition on unequal treatment applies not only to the legislature but also to the
executive
4. The prohibition applies to both substantive and procedural laws
5. Article 8 envisages that there may be lawful discrimination as specified by Article 8(5)
6. Whether the law is discriminatory – to look for exceptions allowed by the constitution
or the judiciary
7. Doctrine of classification subject to the above sixth principles.
8. In cases where the law is silent the procedures that are more drastic and prejudicial are
constitutional
9. An impugned law is constitutional