The Book of Prof Shad.docx

47 privileges and immunities despite the promise of

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Privileges and immunities: Despite the promise of equality in Article 8(1), the Constitution is replete with exceptions. There are provisions that confer privileges on Malays and natives of Sabah and Sarawak. These provisions are built on the philosophy of affirmative action. Legal parity between those who are inherently unequal tends to favour the strong over the weak. It perpetuates an unjust status quo. In recognition of the need to create a level playing field, the law of many states, notably India and Malaysia, incorporates provisions for protective discrimination. John Rawls refers to affirmative action policies as “just inequality”. MPs and the government, judges and diplomats enjoy immunities. The Crown enjoys some prerogatives. The state passes laws to favour itself over private litigants. Special courts and procedures abound. The Malay Rulers have lost their immunity but suits against them are subject to three special rules – permission of the AG, provision for a Special Court and the power of the Majlis Raja-Raja to nominate two out of five judges on the Special Court. The provisions for Malay reservation land; electoral rules that give weightage to rural constituencies; and the special powers of Sabah and Sarawak in the federal set-up are obvious exceptions to the ideal of equality before the law. Official religion: A crucial pre-Merdeka compromise between the Malays and the non-Malays was that the religion of Islam would be given a special exalted position in the Constitution. The rules relating to an official religion in Article 3, while analogous to similar provisions in many other Constitutions, have obvious implications for preferential state support for Islam over other religions. Article 11(4) permits the States to control or regulate propagation of any religious doctrine or belief among persons professing the religion of Islam. Gender bias: Bias against women is evident in citizenship laws, personal laws and the laws relating to the natives of Sabah and Sarawak . Private sector: In Beatrice a/p A T Fernandez v Sistem Penerbangan Malaysia [2005] 3 MLJ 681 it was held that the private sector is not bound by the constitutional rules for equal treatment. A flight stewardess’ employment was terminated because she became pregnant and did not resign as was required by the collective agreement. The court held, most unconvincingly, that “constitutional law - which deals with the contravention of individual rights by the Legislature or the Executive or its agencies – does not extend its substantive or procedural provisions to infringements of an individual’s legal right by another individual. Further, the reference to the ‘law’ in art 8 of the Federal Constitution does not include a collective agreement”. The learned judges’ view that constitutional law does not concern itself with private rights is not correct. Many constitutional provisions like those in Articles 5, 6, 11, 12 and 13 apply to the private sector as well.
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