The Book of Prof Shad.docx

In the administration of any law relating to the

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in the administration of any law relating to the acquisition, holding or disposition of property, or in the establishing of any trade, business, profession, vocation or employment. The ban on discrimination is reinforced by a number of other clauses in the Constitution that forbid partiality. Articles 8(3) and (4): Under clauses (3) and (4) it is forbidden to discriminate against any one on the ground that he is the subject of a Ruler or because he is resident or is carrying on business outside the jurisdiction of a public authority. Article 136: This Article requires that all federal employees of whatever race shall be treated impartially. Reconciling this laudatory provision with Article 153’s special privileges, quotas and reservations for Malays and the natives of Sabah and Sarawak poses many legal and political challenges. The late Tun Suffian was able to straddle the gap between articles 136 and 153 by suggesting that at entry point, reservations and quotas are permissible under the “affirmative action” provisions of the Constitution. However, once in service, all public servants of whatever race should be treated impartially. Article 12(1): Article 12(1) confers equal rights in respect of education. There shall be no discrimination on grounds only of religion, race, descent or place of birth in the administration of public educational institutions; admission of pupils; charging of fees; financial aid from the public exchequer for pupils in public or private educational institutions. Article 12(2): This Article provides that every religious group has the right to establish and maintain institutions for the education of children in its own religion. No law regulating such institutions shall discriminate on ground of religion. Other grounds of discrimination: The cumulative effect of Articles 8, 12 and 136 is that there are nine enumerated grounds on which discrimination is forbidden by the Constitution. What if the discrimination is based on grounds not explicitly condemned in the Constitution? It is submitted that the overall scheme of the basic charter is that all discrimination – even if based on non-enumerated grounds – is unconstitutional except in two circumstances. First, if it is explicitly permitted by a clause of the 45
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Constitution. Second, if the courts have adjudged the differentiation to be based on a “reasonable classification”. A Constitution must be read as a whole and not piecemeal. Each provision must be silhouetted against the overall constitutional panorama. In interpreting the basic charter each clause must be read in the context of other clauses of the Constitution. Article 8(2) should not be seen as an overarching and overriding provision to limit the scope of the generic provisions of Article 8(1). The five prohibited grounds – religion, race, descent, place of birth or gender – do not constitute a comprehensive or exhaustive list of banned criteria of classification. The list is inclusive and not exclusive.
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