Equality and equal protection

• Main Authors: Ramalingam, Chithra Latha, Ali Mohamed, Ashgar Ali, Panchalingam, Lahveenya, Manikam, Vijiaprabu
• Format: Book Chapter
• Language: English
• Published: LexisNexis Malaysia Sdn Bhd 2022
• Subjects: K3165 Constitutional Law
• Online Access: http://irep.iium.edu.my/103966/2/103966_Equality%20and%20Equal%20Protection.pdf; http://irep.iium.edu.my/103966/; https://store.lexisnexis.com.my/products/constitutional-law-in-malaysia-skuSKUMYCONSTILAWMY#:~:text=It%20covers%20topics%20such%20as,and%20emergency%20powers%2C%20constitutional%20interpretation
• Institution: Universiti Islam Antarabangsa Malaysia

Discrimination implies an unfair treatment of two or more persons or subjects on grounds such as race, gender, disability, age, religious belief, etc. The United Nations Universal Declaration of Human Rights 1948 provides that all human beings are born free and equal in dignity and rights. In Malaysia, the basic concept of equality before the law and equal protection of the law is contained in Article 8(1) of the Federal Constitution. Further, Article 8(2) prohibits discrimination against a person or class of persons unless there is a rational basis for such discrimination. The exclusion clause of Article 8(2) ‘Except as expressly authorised by this Constitution’, demonstrates that certain kinds of discrimination may be allowed under the express provisions of the Constitution. A person can be classified in many aspects which include on grounds of age, education, ability, and occupation, the varying needs of these persons often require separate treatment, and hence, the doctrine of classification is constitutional provided that the basis of the difference has a reasonable connection (nexus) with the object of the impugned legislation. Further, discrimination may be categorised into direct and indirect discrimination. Direct discrimination occurs when someone is treated less favourably than others, for example, in the context of employment, an employee has the qualification to do the job but was turned down because the prospective employee might want to start a family soon. Direct discrimination can also occur when someone is paid less than other employees for no good reason, selecting a particular worker for redundancy based on protected characteristics, failure to make reasonable adjustments for a disabled worker, sacking someone for making allegations of discrimination, or unfairly rejecting a request for flexible working from a new parent. Secondly, indirect discrimination occurs when certain rules or regulations put certain staff members at a disadvantage. For example, if the employer insists all workers should work on Sundays, this could be seen as discriminating against Christians who consider it a day of worship. Discrimination may also arise on the basis of gender namely, when women, for example, are treated less favourably or suffer detrimental treatment at the workplace as a result of unreasonable differential treatment between men and women. Having said the above, this chapter discusses equality and discrimination with reference to the above-mentioned Article of the Constitution.