The Book of Prof Shad.docx

On several occasions state action has been challenged

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On several occasions, state action has been challenged on the ground that it violated the equality provision of Article 8(1) even though no prohibited ground in Article 8(2) was involved. In Datuk Haji Harun v PP [1976] 2 MLJ 116 section 418A of the Criminal Procedure Code, which allows the Attorney General to transfer criminal cases from the subordinate to the superior courts, was held by the High Court to violate the equal treatment clause of Article 8. 31 In PP v Tunku Mahmood Iskandar [1977] 2 MLJ 123 the status of the accused as a member of a royal house was held to be irrelevant in the imposition of criminal penalties for culpable homicide. In Malaysian Bar v Government [1987] 2 MLJ 165 discrimination against lawyers of less than seven years’ standing; and in Government v Menon [1990] 1 MLJ 277 differential rates of pensions for those residing locally or abroad were challenged even though ‘seniority’ and ‘residence’ are not forbidden grounds for differentiation. In both cases the challenges were upheld; the laws were declared unconstitutional. Sadly, on appeal both cases were overruled on the ground that the differentiation was reasonable. It follows that all laws and administrative actions in the public sector must be read in the context of the general rule of equality laid down in Article 8(1). The result is as follows: (a) Any legislative or executive action discriminating on grounds of race, religion, descent, place of birth or gender is illegal unless it is saved by some explicit constitutional provision like Article 8(5)(a) which relates to matters of personal law or Article 153 which permits privileges for Malays and the natives of Sabah and Sarawak, and (b) Any law or executive action discriminating on grounds other than the prohibited grounds may be declared illegal if the courts decide that the classification resorted to was irrational or unreasonable. Thus, if a road transport law imposes a higher licensing fee on elderly applicants, there is very little doubt that such a law will violate Article 8(1) although discrimination on the ground of age is not expressly prohibited by Article 8(2). CONSTITUTIONALLY PERMISSIBLE EXCEPTIONS 31 On appeal it was held that Section 418A CPC is saved because Article 145(3) grants power to the AG to transfer cases from one court to another. See [1977] 2 MLJ 155. 46
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No legal rule can be absolute and unbending. In a living legal system many departures have to be permitted to cater to the exigencies of a complex social and political life. Article 8(5): This Article states that the equality provisions of the Constitution do not outlaw the existence of separate personal laws for the various communities. This provision is in keeping with freedom of religion guaranteed by Article 11. Article 8(5) also provides a number of other exceptions.
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