The Book of Prof Shad.docx

Justice raja azlan shah as his majesty was then in

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Justice Raja Azlan Shah (as His Majesty was then), in enhancing the penalty for an offence committed by a Prince of a royal house, stated: “Article 8 of the Constitution… implies that there is only one kind of law in the country to which all citizens are amenable.” No arbitrariness: Article 8(1) applies to both legislative power as well as administrative discretion. In Tan Tek Seng v Suruhanjaya Perkhidmatan [1996] 1 MLJ 261, Article 8(1) was characterised as “all-pervading in effect”. Its provision can be used to challenge as discriminatory any unguided and unrestricted power. The court held that Article 8(1) “strikes at arbitrariness in state action and ensures fairness and equality of treatment”. Procedural fairness: Tan Tek Seng v Suruhanjaya Perkhidmatan also affirmed that Article 8(1) can be used to require public administrators to observe the duty of procedural fairness towards all citizens including the giving of reasons for an adverse decision. 30 Likewise In Hong Leong v Liew Fook Chuan [1996] 1MLJ 481 the court held that the equality clause of the Constitution can be used to require public administrators to observe the duty of procedural fairness towards all citizens. Adjudicators must give reasons for their decisions. Proportionality: Hong Leong also held that penalties imposed must be proportionate and not harsh and oppressive. Legal aid: In some common law countries like the USA and India the equality provision has been relied on to require legal aid for all unrepresented accused in criminal cases on the rationale that there can be no equal treatment if a trained public prosecutor is allowed to ensnare a hapless, unrepresented accused. Tenders: In India, the government’s tender exercises have been subjected to the judicial ruling that an arbitrary or unprincipled preference for one applicant over another offends the duty to treat everyone equally. Electoral laws: In electoral law, the rule of ‘one person, one vote’ rests on the principle that every person is to count for one and no one is to count for more than one. In the USA equality before the law requires that all electoral constituencies be approximately equal in population size. The traditional practice of permitting rural electoral districts to have smaller number of voters than urban districts was condemned as unconstitutional in Baker v Carr 369 U.S.186 (1962). 30 Hong Leong v Liew Fook Chuan [1996] 1 MLJ 481. 44
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Titles: In India and the USA as part of the commitment to egalitarianism, the State does not confer any titles or special ranks on its citizens. NON-DISCRIMINATION Article 8(2): To strengthen the ideal of equality before the law in Article 8(1), Article 8(2) forbids discrimination on five enumerated grounds in some specified areas of life. It lays down that “there shall be no discrimination against citizens on the ground only of religion, race, descent, place of birth or gender” in the following areas: in any law in the appointment to any office or employment under a public authority
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