The Book of Prof Shad.docx

Behind the beautiful dream of egalitarianism the

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Behind the beautiful dream of egalitarianism, the brutal reality is that enslavement of fellow beings and nations, persecution of religious minorities, de-humanisation of sections of society on ground of their “inferior” caste or culture, denial of rights to women, discrimination on grounds of race, religion, gender, wealth, caste and birth have blighted human civilisation for as long as we can remember. Even today many of the above atrocities are continuing in subtle forms in many parts of the world. No nation has an entirely clean record though some, because of their mastery of the media and their stranglehold over international institutions, are able to camouflage repressive, racist and exploitive policies under acceptable guises. Though inequalities are a fact of life, the law, especially constitutional law, cannot pander to existentialist realities. Understandably, it hitches itself to stars. It pegs its provision on ideals distilled from philosophy or morality. Almost all modern constitutional instruments contain equal protection clauses. The Universal Declaration of Human Rights in Article 7 and the Malaysian Constitution in Article 8(1) declare that “all persons are equal before the law and entitled to the equal protection of the law”. Article 8(2) enjoins that except as expressly authorised by this Constitution, there shall be no discrimination against citizens on the ground only of religion, race, sex, descent or place of birth. In Article 8(3) discrimination against the subjects of a Ruler, in Article 8(4) differentiation on ground of residence and in Article 136 unequal treatment of public servants on the ground of race are forbidden. EQUAL PROTECTION UNDER THE LAW Article 8(1) enshrines the general ideal of equality before the law and declares that “all persons are equal before the law and entitled to the equal protection of the law.” This great ideal consists of a number of related aspects – equal treatment, equal protection and prohibition against discrimination. Article 8(1) is a generic provision whose impact on the administrative and legislative processes of the country has not yet been fully explored. It remains one of the least utilised provisions of the Constitution though it was meant to be a catalyst for constitutional development. Among other things, it has the following dimensions: 43
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Absence of privileges: Article 8(1) requires absence of any special privileges in favour of the rich and the powerful. It mandates equal subjection of all classes to the ordinary law of the land. Equal justice to all is its dominant theme. All persons in like circumstances should be treated alike. Equal punishment: Every citizen, irrespective of his official or social status, is under the same responsibility for every act done contrary to the law. Equal punishments should be imposed on persons accused of like offences regardless of their status. In PP v Tengku Mahmood Iskandar [1973] 1MLJ 128
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