The Book of Prof Shad.docx

However the symbolic effect of the amendment is

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always implicit in Article 8(1). However, the symbolic effect of the amendment is considerable. It makes explicit what was merely implicit in the law up to now. It strengthens the principle in Article 8(1). What impact it will have on the legal, political and social landscape of the country remains to be seen. Praise for the amendment must be balanced by a sense of realism and an awareness of the possible hurdles in the way of gender equality. Private sector: The constitutional protection afforded by Article 8 appears to be against state action only. Private sector employment may be unaffected by the requirement of equality. 33 [1982] 2 MLJ 243 34 [1990] 1 MLJ 277 50
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Personal laws: Under Article 8(5) the equality clauses do not invalidate or prohibit any provision regulating personal law. Multiplicity of grounds: Discrimination solely on account of gender is unconstitutional but if the discrimination is based on gender plus other grounds, the constitutional guarantee in Article 8(2) cannot be invoked. Thus, maleness may be a genuine occupational qualification for the job of a security guard for a male hostel. It is noteworthy that the amended Article 8(2) reads: “There shall be no discrimination against citizens on the ground only of religion, race, descent, place of birth or gender…” Work of equal value: It is not enough to get equal pay for equal work. Protection should extend to equal pay for work of equal worth. A nursing job, dominated by women, tends to pay lesser than the post of a excavator operator where men predominate. Paradigms will have to shift to determine what jobs are of comparable worth. No magic wand: Gender bias cannot be removed by recourse to the law alone. The Constitution can confer legal and formal equality. Social and functional equality are more difficult. Deep-seated cultural values, socio-economic imperatives, psychological and biological factors and traditions as old as society have to be modified. In this area there are no destinations, only uncertain journeys. The battle has to be waged at many fronts. Equal rights versus separate rights: In a male dominated society, an equal treatment approach only benefits women who meet male norms. Feminists have to decide whether separate rights are better than equal rights. A large amount of feminist literature is suspicious of the liberal notion of equality. “Equality as what?” it asks. CONCLUSION Article 8 has a vast, civilising potential for requiring humane and fair treatment in all aspects of government. In real life, however, the equal protection ideal faces many treacherous problems and contradictions. Formal, legal equality is of little use unless the citizen has the socio-economic means to make use of the constitutional grant. For the ideal of equality to have any meaning requires massive affirmative action on the part of an activist state to create the socio-economic prerequisites on which legal equality can thrive.
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