4. WHAT IS EQUALITY
LITERALLY 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 justice
i.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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5. • 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
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6. EQUALITY 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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7. TYPESOF 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.
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8. EQUALITY& 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)
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9. EQUALITY 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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10. • 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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11. 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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12. • 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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13. • 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.”
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14. DOCTRINE 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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15. • Decided by per Suffian Hashim LP in Datuk Haji Harun bin
Idris v Public Prosecutor [1977] 2 MLJ 155, 165-166
Discriminatory 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
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16. FORMALvSUBSTANTIVEEQUALITY
FORMAL
• 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
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17. DISCRIMINATION
• 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
action
b) Negative discrimination
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18. POSITIVE 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.
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19. POSITIVEDISCRIMINATIONIN 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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20. • 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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22. NEGATIVE 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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23. GROUNDSFOR DISCRIMINATION
• Fenwick highlighted 4 grounds of discrimination:-
GENDER
RACE
DISABILITY
MARITAL
STATUS
PHYSICAL
APPEARANCE
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24. ANTI 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 Discrimination
3. Convention on the Elimination of Discrimination
against Women
4. Convention on the Rights of the Child
5. European Convention on Human Rights
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25. • 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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26. • 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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27. • 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.
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