CHAPTER 5 – ARTICLE 8;

EQUALITY
SEMESTER II 2013/2014
 A. Article 8(1)

All persons are equal before the law and

entitled to the equal protection of the
law
 (i) Two protections

(i) Equality before the law

– Everyone is subject to the same law

(ii) Equal protection of the law

– Everyone will receive equal treatment of
the law
 Case: PP V TENGKU MAHMOOD
ISKANDAR [1977] 2 MLJ 123
Facts: The accused shot & killed a man
and was convicted of culpable
homicide not amounting to murder for
which the maximum punishment was
imprisonment for 10 years or fine or
both. The learned judge sentenced
him to 6 months imprisonment and a
fine of RM6k, with a further 6 months’
imprisonment in default of payment.
• that the principles of equality
entrenched in art 8 entails the
imposition of punishment on an
accused person regardless of his
status
 Raja Azlan Shah J
• Art 8 implies that there is only one kind
of law in the country to which all
citizens are amenable.
• every citizen, irrespective of his official
or social status, is under the same
responsibility for every act done without
legal justification.
• This equality of all in the eyes of the law
minimizes tyranny
 High Court
• Held: in this case the sentences
imposed by the lower court did not
reflect the gravity of the offences and
therefore the sentences must be set
aside and a more suitable sentence
imposed on the respondent.
 (ii) Rational classification (intelligible
diffentia)
• Art 8(1) does not proclaim that all
persons must be treated alike, but
that persons in like circumstances
must be treated alike.
alike
• What constitutes circumstances that
could differentiate between persons or
classes of persons, is to be decided by
the court
Case: NADARAJAH V PP [2000] 4 MLJ
373
High Court
All equality before the law requires is that the
cases of all potential defendants to criminal
charges shall be given unbiased
consideration.
Art 8(1) does not forbid in punitive treatment
between one class of individuals and
another in relation to which there is some
difference in the circumstances of the
offence that has been committed.
 Case: PP V KHONG TENG KHEN
[1976] 2 MLJ 166
Federal Court
“The principle underlying art 8 is that a
law must operate alike on all persons
under the circumstances, not that it
must operate alike on all persons in
any circumstance…the law may
classify persons…the law may classify
offences into different categories…”
Case: DATUK HAJI HARUN BIN HAJI
IDRIS V PP [1977] 2 MLJ 155
Federal Court
Art 8 did not mean that all laws had to
‘apply uniformly to all persons in all
circumstances everywhere.
ESCAR [Essential (Security Cases)
(Amendment) Regulations 1975]
operated alike on all persons under like
circumstances (i.e. people who
committed security offences)
Ong Ah Chuan v PP [1981] 1 MLJ
64
Lord Diplock
•Art 8(1) of the Constitution does not
forbid discrimination in punitive
treatment between one class of
individuals and another class in relation
to which there is some difference in the
circumstances of the offence that has
been committed.
• The decision to identify the difference
in the circumstances of a particular
case and to act accordingly is that of
the Attorney General pursuant to art
145(3) of the Constitution and is not
subject to judicial review
 B. Article 8(2)

• General rule: no discrimination against citizen on the ground

of
(a) Religion
(b) Race
(c) Descend
(d) Place of birth
(e) Gender
(f) Appointment to any office
(g) Employment under public authority
(h) Administration of any law relating to property, trade,
business, profession, vocation or employment
• Exception: if permitted by the Constitution
Case: MERDEKA UNIVERSITY BERHAD V
GOVERNMENT OF MALAYSIA [1981] 2 MLJ
356

‘Art 8(2) refers to discrimination purely

and solely on account of all or any one
or more of the grounds mentioned in
that clause…language in any event is
not one of the prohibited grounds of
discrimination in art 8(2)”
• Art 8(2) allows persons accused of
like offences to be charged under
different statutes.
Case: JOHNSON TAN HAN SENG V PP
[1977] 2 MLJ
• The power laid for AG to choose under
which statute a person could be charged
with without contravening art 8.
• The offence of unlawful possession of
firearms might be charged under Arms
Act 1960 (max 7 y), or Firearms
(Increased Penalties) Act 1971 (max
14 y) or ISA (death penalty).
 The scope of article 8 (2)

• For employment purpose: only applicable to

public authority
• Private sector- mostly covered with
contractual relationship, thus falls outside
the ambit of article 8
• Federal court criticized this concept in the
case of KESATUAN KEBANGSAAN
WARTAWAN MALAYSIA V SYARIKAT
PEMANDANGAN SINAR [2001] 3 MLJ 705
 Case: KESATUAN KEBANGSAAN
WARTAWAN MALAYSIA V SYARIKAT
PEMANDANGAN SINAR [2001] 3 MLJ 705
Federal court
• To promote social justice requires
adherence to the principal of equality
of treatment before the law and non-
discrimination particularly in the field
of employment, whether in the public
or private sectors.
 ‘except expressly authorised by this
Constitution…’
• Express exception is allowed by :

(i)Article 8 itself [cross refer to article

8 (5)]
or
(ii) Must be read with other
constitutional provision
e.g. Article 149, 150, and 153
 C. Article 8(3)

• There shall be no discrimination in

favor of any person on the grounds
that he is a subject of the Ruler of any
state
• E.g: scholarship given to only persons
who was born in a particular state.
 D. Article 8(4)

• No public authority shall discriminate

against any person on the ground that
he is resident or carrying on business
in any part of the Federation outside
the jurisdiction of the authority
• E.g: obtaining permit to do business
• KT- Majlis Bandaraya KT (Jabatan
Perkhidmatan Perbandaran)
 E. Article 8(5)- Exception to the
general rule
Discrimination allowed with regards to:
(a)Personal law
(b)Restricting office or employment connected
with any religion
(c) Aboriginal peoples
(d)Residence in a state or qualification for
election or appointment to any authority or
voting for election
(e)Provisions in force before Merdeka Day
(f) Restricting enlistment in Malay Regiments to
Malays