MTC012-INTRODUCTION TO LAW 1/LECTURE5 Pre-Law/UiTMKed/hn

LEGAL CONCEPTS - LAW AND EQUALITY

There is underlying moral idea that human beings are equal in some respect. In Islam it was
decreed that there is no difference between Arab and Non-Arab except one faith to Allah. Rules
are expressed to indicate this equality which human enjoy and since law operates with or through
rules, law thus embodies and expresses this idea of equality.

Article 1 of the Universal Declaration of Human Rights proclaims that “All Human beings are
born free and equal in dignity and rights.” Art. 7 of the same states that “All are equal before the
law and are entitled without any discrimination to equal protection of the law. All are entitled to
equal protection against any discrimination in violation of this Declaration and against any
incitement to such discrimination”.

In the recent decades, Malaysia has been taking a step ′further′. Article 8 of the Federal
Constitution, arguably one of the most prominent measures to promote equal opportunity for men
and women, in particular by removing existing inequalities which affect gender.

What sort of equality do we stand for? It is sometimes suggested that the libertarian version of
equality is legal equality—equality before the law. The answer, of course, is that we need to
specify: equality of what? equality in what respect? Our egalitarian opponents favor
socioeconomic equality—sometimes interpreted as equality of socioeconomic opportunity

John Locke, describes what is "equality" in the libertarian sense is: namely, a condition wherein
all the power and jurisdiction is reciprocal, no one having more than another, there being nothing
more evident than that creatures of the same species and rank, promiscuously born to all the same
advantages of nature, and the use of the same faculties, should also be equal one amongst another,
without subordination or subjection. . .

In short, the equality that Locke speaks of is equality in authority: the prohibition of any
"subordination or subjection" of one person to another. Since any interference by A with B’s
liberty constitutes a subordination or subjection of B to A, the right to liberty follows
straightforwardly from the equality of "power and jurisdiction."

As explained by Locke: [B]eing all equal and independent, no one ought to harm another in his
life, health, liberty or possessions. . . . And, being furnished with like faculties, sharing all in one
community of nature, there cannot be supposed any such subordination among us that may
authorise us to destroy one another, as if we were made for one another’s uses, as the inferior
ranks of creatures are for ours. Lockean equality involves not merely equality before legislators,
judges, and police, but, far more crucially, equality with legislators, judges, and police.

Grounds for discrimination and discriminatory practices

The list of prohibited grounds for discrimination previously provided for - including origin, sex,
family situation and membership of an ethnic group, nation or race - is now expanded to include
physical appearance (height, weight, attractiveness etc), surname, sexual orientation and age.

Martine Aubry (the French Minister for Employment and Solidarity until 17 October 2000)
states that 'all victims of discrimination, women, people with disabilities, foreigners and
immigrants, gay men and lesbians' must be given the message that their rights are respected'.
She labelled all forms of discrimination 'unacceptable violence'.

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General forms of discrimination

Direct discrimination is where one person is treated less favorably than another due solely (or
predominantly) to his or her identification with a certain disadvantaged group (racial, ethnic, etc).
For example, a woman who is not allowed to vote since only men may vote; or a Muslim person
who is not hired (even though he may be qualified) solely (or predominantly) because he is a
Muslim.

Indirect discrimination occurs when an apparently neutral provision would put persons belonging
to certain group(s) at a particular disadvantage. This can also be understood as the occurrence of
a disparate impact or effect upon a certain group due to otherwise neutral rules. One example
may be a shopkeeper who does not allow women wearing long skirts to enter the shop.

As no particular racial or ethnic group is named, the rule is facially neutral, but it may indirectly
discriminate against certain minority group members who tend to wear head scarves. Indirect
discrimination encompasses institutional racism that is built into the very structures, practices and
procedures of governments or businesses.

Discrimination may also take the form of harassment (unwanted conduct related to identity with a
certain group, having the “purpose or effect of violating the dignity of a person and of creating an
intimidating, hostile, degrading, humiliating or offensive environment.” – language from EU
Race Directive).

Harassment need not necessarily be directed at the victim, but may exist within an intimidating
environment. Instruction of another to discriminate also comprises discrimination, as does
victimization, where complainants of discrimination are made to suffer adverse subsequent
treatment in retribution for their complaint.

AFFIRMATIVE ACTION AND POSITIVE DISCRIMINATION

Equal treatment under the law does not imply that all people should be treated alike. People differ
in terms of abilities, personalities and culture. It would defy common sense to treat a child in the
same manner as an adult when it comes to matters of voting or criminal culpability.(Kevin YL
Tan And Thio Li Ann)

All the law requires is that like persons in like circumstances should be treated alike. This is what
is known as the doctrine of classification based on intelligible differentia (distinguishing mark)
which becomes the basis of affirmative action and positive discrimination.

One can defined the term “affirmative action” as attempt to make progress towards substantive
rather than merely formal equality for those groups that are currently underrepresented in
significant positions in society by explicitly taking into account certain defining characteristics
(e.g. race, gender...) which have been the basis for discrimination.

Slightly different view, which does not necessarily stick to previous discrimination as
precondition, is given by Rosenfeld, quoting Kent Greenwalt: “‘Affirmative action’ is a phrase
that refers to attempts to bring members of underrepresented groups, usually groups that have
suffered discrimination, into a higher degree of participation in some beneficial program. Some
affirmative action efforts include preferential treatment; others do not”.

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Affirmative action as an active concept thus can be generally understood as any action to create a
new, non-discriminatory situation of (factual) equality targeted on members of specific group
(segment of society) identified by certain characteristics. Affirmative action is usually regarded
as a remedy for past discrimination, and is employed mainly in areas such as employment,
education, or voting.

Affirmative action may thus entail dissemination of information, consciousness-raising, good

faith efforts to recruit women or minorities, special vocational & training programs, but also
preferences, or – in its most extreme form – reverse discrimination.

It is necessary to add that the term affirmative action is used in the U.S. contexts, as compared to
European region, which tends to use the terms “positive discrimination” or “positive action.” As
envisioned by the EU in gender context, “positive discrimination” broadly encompasses “all
measures which aim to counter the effects of past discrimination, to eliminate existing
discrimination and to promote equality of opportunity between women and men, particularly in
relation to types or levels of jobs where members of one sex are significantly under-represented”

Under the Council of Europe human rights protection scheme, Protocol No. 12 European
Convention on Human Rights offers a similar definition of positive action, in which “the
principle of non-discrimination does not prevent States Parties from taking measures in order to
promote full and effective equality, provided that there is an objective and reasonable
justification for those measures”.

For the purposes of our discussion, affirmative action and positive discrimination will be
considered to be roughly equivalent, both encompassing a whole range of practices (including
preferential treatment).

Origin Of Affirmative Action/Positive Discrimination

Affirmative action and positive discrimination programs have usually arisen in places with a
historical record of discrimination that has led to modern inequities in areas such as employment,
education or voting.

Some countries offer clear examples of overt discrimination, such as the histories of slavery in the
U.S. and apartheid in South Africa. In other countries, or with regards to non-racial groups (i.e.
women), historical discrimination might have taken more subtle, systemic forms, such as denial
of access to top-quality educational institutions which in turn allow for career opportunities and
political involvement.

In any case, whether overt or covert, practices having discriminatory effects may be found in
nearly every modern society. As global awareness of human and civil rights issues grows, due in
part to the recent emphasis on such rights by the UN and EU, countries are beginning to introduce
more substantive anti-discrimination measures into practice, sometimes allowing for affirmative
action.

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ANTI-DISCRIMINATION LAWS AND EQUAL OPPORTUNITY LEGISLATION

Positive discrimination/Affirmative Action is a conscious response to practices of discrimination,

exclusion and denial of rights. Malaysia have a long tradition of protective legislation for
working women and physically disabled, maternity leave and other similar “special treatment”
regimes. This is often so due to the so-called concept of welfare state.

A culture of “human rights” (particularly in the guise of the principle of non-discrimination) has
begun to grow via international treaties such as the International Covenant on Civil and Political
Rights, International Covenant on Economic, Social and Cultural Rights, International
Convention on the Elimination of All Forms of Racial Discrimination, Convention on the
Elimination of Discrimination against Women, Convention on the Rights of the Child, European
Convention on Human Rights and Basic Liberties, etc.

These treaties have been incorporated by many countries as their principles and standards are
integrated into national laws, prohibiting different types of discrimination, setting up monitoring
bodies, and creating systems of redress and reparation.

However, none of these international treaties mandates positive discrimination. If mentioned at

all, the positive discrimination is recognized as practice which does not breach the anti-
discrimination principle.

In USA, affirmative action policies in the United States grew out of a history of slavery and
racial discrimination. While early US politics upheld the traditional racist system of slavery, the
end of the Civil War in 1865 prompted Congress to pass the Fourteenth Amendment to the US
Constitution, which provided for equal treatment under the law of all US citizens.

Soon after, the Civil Rights Act of 1875 was passed, giving all citizens, regardless of race, equal
legal rights. Federal “freedmen” programs to benefit blacks were developed, such as assistance
for food, education, labor contracts, medical care and other protective and remedial measures.

These programs can be considered the predecessors to what later emerged as affirmative action,
since they specifically benefited a historically disadvantaged group, with no substantially
equivalent benefit being offered to whites .

In recognition of the problem of discrimination, President Franklin D. Roosevelt passed Executive

Order 8802, prohibiting federal employment discrimination on the basis of race, and calling for
employers to “provide for the full and equitable participation of all workers in the defense
industry without discrimination”.

Still, segregation and injustice existed in many areas, prompting American citizens to develop an
organized civil rights movement. They proceeded and experienced a victory in the 1954 US
Supreme Court case, Brown v. Board of Education, where the plaintiff challenged the Plessy v.
Ferguson legacy of “separate but equal” schools for black and white children. The U.S. Supreme
Court found the rule unconstitutional, thus outlawing racial segregation in education.

Civil rights activists continued to seek enforcement and expansion of equality, prompting
President John F. Kennedy to form the Equal Employment Opportunity Commission (EEOC), and
directing federally-contracted employers to “take affirmative action to ensure that applicants are
employed, and employees are treated during their employment, without regard to race, creed,
color or national origin.” The concept of “affirmative action” was thus born.

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However, affirmative action was a term and concept largely ignored until the passage of the Civil
Rights Act of 1964, which created a broad bar against discrimination in privately-owned facilities
open to the public (Title II), discrimination in federally funded programs (Title VI), and
discrimination by both private and public employers.

The support behind affirmative action peaked in 1965 with President Johnson’s issuance of
Executive Orde. The Order regulated affirmative action taken by government contractors in all
employment activities, and required employers to submit affirmative action plans analyzing the
demographics of their workforce and indicating proactive measures the employer would take to
ensure greater equality.

The intent of the order was to take “affirmative action” to create more equal representation of
minority groups in employment and education, to seek - as President Johnson remarked - not just
equality as a right and a theory but equality as a fact and equality as a result.

A debate about the merits of affirmative action has followed, in which supporters characterize it
as the creation of an equal opportunity of preference (similar to historically accepted opportunity-
granting affiliations such as workers’ unions or influential family connections), compensation for
past wrongs to minority groups, and an important tool for fighting systemic discrimination,
encouraging diversity, and providing minority role models.

However, opponents of affirmative action have criticized the policy as having a negative impact
on recipients (by portraying recipients of affirmative action benefits as competing under lower
standards), discouraging ambition among minority groups (due to the lower standards), and as
having a negative impact on whites (via so-called “reverse discrimination” and punishment of
generations not responsible for historical wrongs) and on society (by reinforcing racial
differences and creating racial competition and conflict).

Modern US affirmative action has evolve fully interpreted but somewhat limited concept. The
US Supreme Court has played a significant role in shaping affirmative action, through decisions
that have progressively erected significant challenges to affirmative action policies.

In November 2001, France adopts a new law to prevent discrimination at the workplace. The
legislation adds new prohibited grounds of discrimination (including age and sexual orientation),
adjusts the burden of proof in discrimination cases and makes it easier to bring court cases. The
relevant section of the Labour Code now reads: 'No person can be eliminated from a recruitment
process (...) due to their age, sex, lifestyle, sexual orientation, age, family situation, non-
membership, whether genuine or assumed, of an ethnic group, nation or race, political beliefs,
trade union activities, religious beliefs, physical appearance, surname, state of health or
disability.'

The definition of discriminatory practices provided by Article L. 122-45 of the Labour Code has
been broadened to cover an employee's entire career. From now on, the ban on discrimination
extends throughout a person's working life, covering: recruitment; access to a placement or in-
company training programme; pay; training; redeployment within a company; posting;
qualifications; job classification; promotion; transfer from one workplace to another; and renewal
of contract.

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Minority Rights and Human Rights

United Nations Charter of Universal Human Rights was promulgated in 1948 and subscribed to
by Malaysia. The charter viewed human rights as rights of individual human beings, and didn’t
refer to group or minority rights.

However, deliberations within the various organs of the UN increasingly came to be concerned
with the issues raised by the presence of large ethnic, social, linguistic and religious minorities
within its constituent nations. Therefore, in 1966 the UN Covenant on Civil and Political Rights
which contains an explicit, though cautious, mention of minority rights was introduced.

Its Article 27 reads: “In those States in which ethnic, religious or linguistic minorities exist,
persons belonging to such minorities shall not be denied the right, in community with the other
members of their group, to enjoy their own culture, to profess and practice their own religion, or
to use their own language.”

Twenty years later, the United Nations, "recognizing the need to ensure even more effective
implementation of international human rights instruments relating to the rights of persons
belonging to (national or) ethnic, religious or linguistic minorities,” prepared a new declaration,
which has yet to secure agreement on all its articles.

Its Article 1 reads: “(Persons belonging to) (national or) ethnic, linguistic and religious
minorities . . . have the right to respect for, and the promotion of, their ethnic, cultural, linguistic
and religious identity without any discrimination.” In their increasing concern with the fate of the
collectives identified as ‘minorities’, the nations of the world may be shifting away from their
original, more universal concern with the fate of the individual.

Such a shift is timely as the world is facing myriads of internal conflicts and civil wars which
have seen blatant persecutions of religious/ethnic minorities by majority communities.

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