26 APRIL, VOL 99 A LEGAL AWARENESS MAGAZINE EQUALITY ARTICLE 8 OF FEDERAL CONSTITUTION NO CHANGE CAN COME IF THOSE WHO ARE IMPACTED THE MOST BY DISCRIMINATION ARE NOT WILLING TO STAND UP FOR THEMSELVES NO CHANGE CAN COME IF THOSE WHO ARE IMPACTED THE MOST BY DISCRIMINATION ARE NOT WILLING TO STAND UP FOR THEMSELVES -ZAINAB SALBI
MEMBERS NUR ALEYA AISYAH BINTI MAT KHALID 2023827494 NUR SYAFIQAH WAFAA’ BINTI NORADON 2023635794 NURUL FARHANA BINTI BISARA SIRHAN 2023471034 AHMAD HARRIS SAFWAN BIN AINUL KAMAR 2023822116 MOHAMAD HAKIMEY BIN MOHD AMRI 2023659044 QYSTINE BINTI SALIM 2023860144 OF VERIDONIA
Equality refers to "the state of being equal." It is one of the values of a democratic society, therefore the battle for various types of equality, such as racial equality, gender equality, or equal opportunity between wealthy and poor, is frequently linked to progress toward the ideal of everyone being fully equal. Equality in society happens when everyone is treated fairly. Nobody encounters discrimination based on color, gender, age, sexual orientation, or handicap. Everyone has equal access to opportunities and resources necessary for success. There are many types of equality such as gender equality, racial equality and equal employment access equality. EQUALITY Discrimination refers to “any distinction, exclusion or preference made on the basis of race, colour, sex, religion, political opinion, national extraction or social origin, which has the effect of nullifying or impairing equality of opportunity or treatment in employment or occupation. ” — ILO Convention No. 111, Article 1 (1) (a). We can accomplish far more when everyone pitches in than we ever could working alone. Kindness and justice toward others can lead to amazing changes in our world. Equality promotes harmony and unity among people. The divisions and conflicts that might result from prejudice and inequality are lessened when everyone is treated fairly. It promotes unity among individuals, respect and can be resulted in a more inclusive society and peaceful community. Article 8(1) of the Federal Constitution: All person are equal before the law and entitled to the equal protection of the law. Civil and political rights (Article 3 to 21): There are provisions enunciating the right to liberty, prohibition of torture, prohibition of arbitrary arrest and detention, right to fair trial, freedom of thought and religion, freedom of opinion and expression, freedom of peaceful assembly, right to take part in the government, and right to democracy. LAW Article 8(2) of the Federal Constitution:Except as expressly authorized by this Constitution, there shall be no discrimination against citizens on the ground only of religion, race, descent, place of birth or gender in any law or in the appointment to any office or employment under a public authority or in the administration of any law relating to the acquisition, holding or disposition of property or the establishing or carrying on of any trade, business, profession, vocation or employment.
LEGAL ISSUE The law being used in the case of Noorfadilla binti Ahmad Saikin v Chayed bin Basirun & Ors [2011] MLJU 1001 is Article 1 and 11 of convention of The Convention on the Elimination of All Forms of Discrimination against Women (CEDAW) for the International Law. For the National law that governing equality is Article 8 of the Federal Constitutions . Based on the Article 8 (2) of the Federal Constitutions stated that “Except as expressly authorized by this Constitution, there shall be no discrimination against citizens on the ground only of religion, race, descent, place of birth or gender in any law or in the appointment under a public authority or in the administration of any law relating to the acquisition“. Next the law being used in the case is CEDAW. Article 1 of CEDAW defines "discrimination against women " as any distinction, exclusion or restriction made on the basis of sex which has the effect or purpose of impairing or nullifying the recognition, enjoyment or exercise by women, irrespective of their marital status, on a basis of equality of men and women, of human rights and fundamental freedoms in the political, economic, social, cultural, civil or any other field.". next is article 11 of CEDAW. Article 11 (1) (b) of CEDAW provides that state Parties shall take all appropriate measure to eliminate discrimination against women in the field of employment in order to ensure, on a basis of equality of men and women, the same rights, in particular the right to the same employment opportunity, including the application of the same criteria for selection in matters of employment. Applying to this case, a person has the right to get an equal opportunity as another person and there shall be any discrimination in terms of religion, race, descent, place of birth or gender as stated in Article 8(2) of the Federal Constitution. Returning to the case, as a citizen of Malaysia, she deserves to get an equal treatment like job opportunity as stated under the said constitution. BY applying the said article, the High Court’s judge found that defendants ' by revoking the placement memo because she was pregnant amounted to gender discrimination, as pregnancy discrimination falls within the scope of gender discrimination. The CEDAW is also applicable to her because she is a woman and the act the defendant shows as a form of gender discrimination on the basis of her pregnancy. Discrimination on the basis of pregnancy is a form of gender discrimination because of the basic biological fact that only women have the capacity to become pregnant. Even during the advertisement of the job it did not state that a pregnant woman could apply for GSTT. Thus, the act of the defendant shows that to contradict her rights to get a job opportunity because of her gender and her situation. Plaintiff apply the job at PPDHL as GSTT ( guru sandaran tidak terlatih). Plaintiff attend the interview on 2/1/2009. Before the interview she has been asked to fill the form. During the interview she has been asked many questions to see whether she is eligible for the jobs. She has not being asked about pregnancy. On 11/1/2009, she got a text and she has been accepted for the job. On 12/1/2009, plaintiff got posted to sekolah menengah kebangsaan tinggi kajang. Plaintiff also been asked to report the duty. Later, PPDHL asked if anyone pregnant, plaintiff and two others admitted says that they were pregnant. then , the officer withdrew the memo replacement to the plaintiff. The husband of the plaintiff wrote a number and e-mail to ministry requesting an explanation. On 17/2/2009, the ministry replied the circular says that pregnant women cannot be employment as GSTT because of the various reason such as health reason. 19/2/2009. Plaintiff wrote a letter to the defendant demanding that want to employed her as GSTT back throughout his solicitor. No written reply until these day. On 7/5/2009, plaintiff filed the summons against the defendant. NOORFADILLA BINTI AHMAD SAIKIN V. CHAYED BIN BASIRUN & ORS [2011] MLJU 1001 MATERIAL FACTS Whether this action of the defendants tantamounts to gender discrimination and therefore against Article 8 (2) of the Federal Constitution ? CASE ANALYSIS CONCLUSION To conclude, every person the right to access an equal opportunity without concern about theri gender, racial and regional and the restriction of a person’s freedom and equality on the basis of one’s condition without that person consent, literally as it violates Article 8(2) of the Federal Constitution because of the discrimination against pregnant women who apply a job as a “Guru Sandaran Tidak Terlatih” (GSTT) to Pejabat Pendidikan Daerah Hulu Langat (PPDHL). Then, her application was being revoked because the ministry doesn’t want to accept pregnant women as applicants to that job. Therefore, the court’s decision to classify Mr. Chayed’s act was a violation of a person ' s equality and freedom and was subjected to Article 8(2) of the Federal Constitution. COURT DECISION the judges held by virtue of Article 160 of the Federal Constitution, the defendants are public authorities and therefore agents of the Executive. So, the defendants' act of revoking and withdrawing the Placement Memo because the plaintiff was pregnant constitute a violation of Article 8 (2) of the Federal Constitution.
The law that is being used in the case of Samat bin Yamin v Public Prosecutor is First concerning equality and discrimination in Article 8 of the Federal Constitution. According to Article 8 of the Federal Constitution, no one should be treated unfairly or discriminated against based on their religion, race, descent, place of birth, or gender alone. Everyone should have equal rights and opportunities, and discrimination is not allowed unless specifically permitted by the Constitution. The next law that being used is section 13 (2) of the Security Offences (Special Measures) Act 2012, this argument is based on the fact that women charged and detained under the Security Offences (Special Measures) Act (SOSMA) are regarded as belonging to a different group than men prosecuted and held under the same statute. In this case, Samat argued that section 13 was unconstitutional as it discriminates against people in terms of its gender and health condition. This is because the women charged and detained under SOSMA are considered to be in different classification compared to men in charged and detained under the same act. Meanwhile, according to SFC section 13 (2) is sound law as long as it uphold the equality principle even in the case that the court rules the law is discriminatory because according to the learned SFC, it can be classified separately as they have unique characteristic and criteria. By applying this, people should be treated equally no matter what race, religion, place of birth, or gender they are. But back to the case, under Act 8 of FC has a detailed elaboration regarding discrimination where discriminatory is valid if it is permitted categorization which is also understandable and related to law’s aim. The judge had dismissed both of the appeals made by the plaintiff as his offenses were sections 26A and 26D of the Anti-Trafficking in Persons and AntiSmuggling of Migrants Act 2007 ('the Act'). Further elaboration, the applicant was suffering with medical illness such as heart problem, kidney problem, high cholesterol, low blood pressure, gout and knee osteoarthritis. But, this illnesses only happened to him during his incarceration. Therefore, it does not effect his situation or other prisoners while he is in jail while waiting for his trial. Thus, the decision that have been made by the judge stated that the appeal made by the plaintiff is dismissed as his action does not show any discriminatory according to the court. SAMAT BIN YAMIN V PUBLIC PROSECUTOR [2023] 4 MLJ 613 MATERIAL FACTS Following his arrest on June 16, 2020, the applicant in this case was charged under both sections 26A and 26D of the Anti-Trafficking in Persons and AntiSmuggling of Migrants Act 2007 ('the Act'), which offences are listed in Part IIIA of the Act, and as a result, the First Schedule of the Security Offences (Special Measures) Act 2012 (the SOSMA) applies. 1. 2. By virtue of s 13(1) of SOSMA, he was detained in prison pending his trial. Dissatisfied with his confinement, the applicant submitted an application for bail until his trial in the High Court of Klang, but the learned High Court judge denied it. 3. The exact same case was submitted by his current counsel before the Court of Appeal ('COA'), which was also dismissed after upholding the respondents' preliminary objections. 4. LEGAL ISSUE Whether it is fair for Parliament to completely deprive bail to a fit and healthy man charged with a security offence while granting privilege to a female charged with a security offence to apply and to be granted bail under section 13(2)? 1. 2. Whether the law is unconstitutional for being discriminatory CASE ANALYSIS APPLICATION In conclusion, what can we learn and apply from the principle of equality and the practice of non-discrimination from this case is that although Article 8 of the Federal Constitution stated that all persons are equal before the law and entitled to the equal protection of the law and there shall be no discrimination against citizens on the ground only of religion, race, descent, place of birth or gender, it is also not absolute and universal in application to everyone in all circumstances. For the applicant to argue s13 of SOSMA breached the doctrine of of proportionality as well as the principle of equality enshrined in Art 8 of the FC because it was discriminatory is not valid. This is because a law that discriminates is good law if it is based on reasonable or permissible classification. Although, s13 of SOSMA provided that bail shall not be granted to a person who had been charged with a security offence unless that person was below 18 years of age, a woman or a sick and infirm person, it is created with a reasonable reason. This is because women are more likely to suffer physical and psychological violence during an arrest, during questioning, and while incarcerated, women prosecuted under SOSMA are typically granted bail. As for sick and infirm person, It could not be that any illness would be a ground for granting bail. Furthermore, the goal and aim of s 13 of that SOSMA is to prevent individuals accused of crimes under it from escaping or tampering with evidence or witnesses. This proves that s 13(2) of SOSMA does not discriminate and violate the principle of equality guaranteed under Art 8 of the Federal Constitution, even if the court finds s 13(2) discriminatory, it is still good law because it does not violate the principle of equality under art 8 due to the reasonable classification of the persons which the applicant did not fulfilled. O COURT DECISION The applicant's notice of motion lacks merit and should thus be dismissed. The bail application has been dismissed