Equality provision in Federal Constitution is not absolute, discrimination is permitted — Hafiz Hassan

NOVEMBER 5 — In the celebrated case of Datuk Haji Harun bin Haji Idris v Public Prosecutor [1977] 2 MLJ 155, one of the issues raised was that Section 418 of the Criminal Procedure Code (under the provisions of which the case was transferred from the subordinate court to the High Court for trial) was inconsistent with Article 8 of the Federal Constitution and therefore void by virtue of Article 4.

Lord President Suffian, the head of the judiciary, in dealing with the issue, laid down the principles of equality in the Malaysian context in this way:

1. The equality provision is not absolute. It does not mean that all laws must apply uniformly to all persons in all circumstances everywhere.

2. The equality provision is qualified. Specifically, discrimination is permitted within cl (5) of Article 8 and Article 153.

3. The prohibition or unequal treatment applies not only to the legislature but also to the executive — this is seen from the use of the word “public authority” in cl (4) and “practice” in clause (5)(b) of Article 8.

4. The prohibition applies to both substantive and procedural law.

5. Article 8 itself envisages that there may be lawful discrimination based on classification — thus Muslims as opposed to non-Muslims (para (b) of cl (5) of art 8); aborigines as opposed to others (para c)); residents in a particular State as opposed to residents elsewhere (para d)); and Malays and natives of Borneo as opposed to others who are not (art 153).

In the celebrated case of Datuk Haji Harun bin Haji Idris v Public Prosecutor [1977] 2 MLJ 155, one of the issues raised was that Section 418 of the Criminal Procedure Code (under the provisions of which the case was transferred from the subordinate court to the High Court for trial) was inconsistent with Article 8 of the Federal Constitution and therefore void by virtue of Article 4. — Reuters file pic

6. The first question we should ask is, is the law discriminatory, and that the answer should then be — if the law is not discriminatory, if for instance it obviously applies to everybody, it is good law, but if it is discriminatory, then because the prohibition of unequal treatment is not absolute but is either expressly allowed by the Constitution or is allowed by judicial interpretation we have to ask the further question, is it allowed? If it is, the law is good, and if it is not, the law is void.

7. Discriminatory law is good law if it’s based on “reasonable” or “permissible” classification... provided that:

(i) the classification is founded on an intelligible differentia which distinguishes persons that are grouped together from others left out of the group; and

(ii) 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.

8. Where there are two procedures existing side by side, the one that is more drastic and prejudicial is unconstitutional if there is in the law no guideline as to the class of cases in which either procedure is to be resorted to. But it is constitutional if the law contains provisions for appeal, so that a decision under it may be reviewed by a higher authority. The guideline may be found in the law itself; or it may be inferred from the objects and reasons of the bill, the preamble and surrounding circumstances, as well as from the provisions of the law itself. The fact that the executive may choose either procedure does not in itself affect the validity of the law.

9. In considering Article 8 there is a presumption that an impugned law is constitutional, a presumption stemming from the wide power of classification which the legislature must have in making laws operating differently as regards different groups of persons to give effect to its policy.

10. Mere minor differences between two procedures are not enough to invoke the inhibition of the equality clause.

In the case of Malaysian Bar & Anor v Government of Malaysia [1987] 2 MLJ 165, Lord President Salleh Abas expounded further the principles when he said:

“The requirement for equal protection of the law does not mean that all laws passed by a legislature must apply universally to all persons and that the law so passed cannot create differences as to the persons to whom they apply and the territorial limits within which they are in force.

“Individuals in any society differ in many respects such as, inter alia, age, ability, education, height, size, colour, wealth, occupation, race and religion. Any law made by a legislature must of necessity involve the making of a choice and differences as regards its application in terms of persons, time and territory.

“Since the legislature can create differences, the question is whether these differences are constitutional. The answer is this: if the basis of the difference has a reasonable connection with the object of the impugned legislation, the difference and therefore the law which contains such provision is constitutional and valid.

“If on the other hand there is no such relationship the difference is stigmatised as discriminatory and the impugned legislation is therefore unconstitutional and invalid. This is known as the doctrine of classification which has been judicially accepted as an integral part of the equal protection clause.”

If the above is too much to consume, just remember that the equality provision in Article 8 is not absolute, and that discrimination is permitted by clause (5).

* This is the personal opinion of the writer or publication and does not necessarily represent the views of Malay Mail.