The Book of Prof Shad.docx

It was held in datuk haji harun bin haji idris v pp

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It was held in Datuk Haji Harun bin Haji Idris v PP [1976] 2 MLJ 116 at 118 that Article 8 does not require that persons accused of like offences be charged under the same statute. In Johnson Tan Han Seng v PP [1977] 2 MLJ 16 Suffian LP held that Article 8 must be read subject to Article 145 (3). The Attorney General has the discretion not to charge all three accused persons under the same statute. Similarly in Teh Cheng Poh v PP [1979] 1 MLJ 50 the Privy Council held that “all that equality before the law requires, is that the cases of all potential defendants to criminal charges shall be given unbiased considerations by the prosecuting authority and that decisions whether or not to prosecute in a particular case for a 32 Public Prosecutor v Khong Teng Khen [1976] 2 MLJ 166 at 170. 49
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particular offence should not be dictated by some irrelevant consideration…”. In PP v Khong Teng Khen it was held that Article 8 does not require that a law must operate alike on all persons or that it must be general in character and universal in application. All that Article 8 guarantees is that a person in one class should be treated the same as another person in the same class. Parliament is permitted to indulge in legislative classification of citizens according to their age, income, profession etc. However, the classification must not be based on prohibited grounds and must meet judicial standards of reasonableness. In a refreshing new approach the court in Harmenderpall Singh a/l Jagara Singh v PP [2005] 2MLJ 542 held that section 41(5) of the Road Transport Act 1987 discriminates against reckless and dangerous drivers in cases where a third party died by subjecting such drivers to a deprivation of a right to be heard before their licences are suspended. However, such deprivation of right to be heard was not applied where the third party was only seriously injured under s 42. The dissimilarity in circumstances between s 41 and 42 (i.e. death) was arbitrary and unreasonable in relation to the social object sought to be achieved which was to protect third parties from risks and not death alone in the case of reckless and dangerous driving. In the last 50 years judicial standards of reasonableness have not always been high. In decisions like Merdeka University Berhad 33 , Malaysian Bar v Government and Government v Menon 34 the courts showed great reluctance to subject the legislative will to the imperatives of the Constitution. Obviously many judges are still steeped in the British tradition of parliamentary supremacy which has no relevance here. SEX BIAS AND THE CONSTITUTION Women’s rights are part of the broader mosaic of human rights. Any strides towards the ideal of sex equality must be celebrated and supported. And overwhelming support there indeed is for the 2001 amendment to Article 8 of the Federal Constitution to explicitly ban gender discrimination. It is submitted that the amendment to Article 8(2) did not lay down anything new. Gender equality was always implicit in Article 8(1). However, the symbolic effect of the amendment is considerable. It makes
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