JUNIOR COUNSEL’S SUBMISSION- EQUALITY

May I please this honorable court, as has already been stated, my name is …. and I appear as
the junior counsel on the behalf of the defendant, the Government of Malaysia.
My Lady, I have a submission to make which is the law passed by the Government of
Malaysia did not infringe on people’s rights to equality.
If it pleases Your Lordship, I will begin with my first submission.
My submission revolves around the issue whether the law passed by the Government of
Malaysia discriminates against Seroja’s private orphanage. First of all, I would like to refer to
Article 8 (1) in federal constitution stated that all persons are equal before the law and
entitled to the equal protection of the law. This means that there cannot be any special
favours for anybody regardless of their wealth and position when it come to law of the
country, otherwise it will be seen as discrimination.
However, I want to highlight it here that under certain circumstances, discrimination will not
always make a law a bad law. According to Ihering, the equal treatment under the law does
not imply that all people should be treated alike because people differ in their abilities,
personalities, culture and so on. For instance, it is not fair to treat a child in the same
manner as an adult when it comes to matter of voting or criminal culpability. The fact is,
there is no constitution proclaims that all persons must be treated alike, they just proclaim
that persons in like circumstances must be treated the same.
To strengthen this statement, we can refer to article 8 (5) which guaranteed a person in one
class to be treated the same as another person in the same class. The article does not
prohibit the legislature and executive bodies to distinguish and classify persons, and does
not prevent parliament from making a law based on classification. We should also take a
look at Article 8 (2) which stated that there shall be no discrimination against citizens on the
ground only of, I repeat, on the ground only of race, religion, descent, place of birth and
gender.
Applying the law with the current situation, the law passed by the government is not a form
of discrimination because for a certain condition, classification is a necessity. Seroja’s Private
Orphanage might regard this as unlawful, but people in different circumstances cannot be
treated the same. It means that if this law was made for private orphanages in Selangor, it
doesn’t mean that it should be applied in another state as well. This is in line with Article 8
(5) that provide provision for discrimination to be practiced in certain situation. Thus, it is
not stated in Article 8(2) that there should be no discrimination against citizens on the
ground of region or geographical position. Frankly speaking, there is no stated provision that
guaranteed people in all states to be treated alike under a law that passed by the
parliament specifically for a certain state. Therefore, the plaintiff’s claim on this matter is
found on no ground.
Next, based on the basis of Doctrine of Classification, a discriminatory law or policy is valid if
it is based on reasonable or permissible classification. Therefore, there must be a nexus
between the basis of classification and the object of the law. To understand this better, we
move to the case of Datuk Haji Harun bin Haji Idris v Public Prosecutor (1977). When the
learn judge sentence the appellant after convicted of bribery and corruption, he appealed
and argued that the section 418A of the Criminal Procedure Code (under the provisions of
which the case of the appellant had been transferred from the Subordinate Court to the
High Court for trial) was inconsistent with Article 8 and therefore unconstitutional and void
of Article 4.
The judges decided that the section 418A of the Criminal Procedure Code is not
discriminatory as the words ‘any particular case’ does not apply specifically to the case
against the accused, but to all criminal cases triable in Subordinate Court. The appellant
might regard the law as discriminatory but there was reasonable classification in it. It is
because Section 417 and 418A give provision to Attorney-General to exercise his power, and
under Section 418A, he will be expected to transfer cases with unusual differences and
importance to the High Court. Besides, it is obvious that the amendments to Sections 138,
147 and 148A is to expediate trials, and it is connected with the principle of administration
of justice that an alleged criminal should be placed on trial as soon as possible after the
commission of a crime. Therefore, this classification did have a nexus with the object of the
amendments.
Back to the case of Seroja’s Orphanage and the government, the objective of the law did
have a nexus with why it is only applied in Selangor. The law aims to make sure all the
children at every orphanage in Selangor will be taken care with responsibility, and to avoid
the issue of neglect and abuse like in the allegation to happen in the future. Since the
allegation started in Selangor, the Government of Malaysia classified that the law should be
applied only to orphanages in Selangor. This is because the orphanages from another state
must feel it unfair if the same law will be put upon them since they are unrelated to the
allegation. Therefore, the law is valid because it is based on reasonable classification. Thus,
Section 128 (1) and (2) of the Children Act 2001 give the government power to make
regulation that is necessary for the purpose of providing care and maintenance for children
in any center, so the law passed by the government is not based on their own’s will.
Lastly, we believe that the action of the government to regulate the law is not a form of
violation of human equality and I implore Your Lady to dismiss the case.
That is all my submission, thank you.