First and foremost, rule of law is one
of a branch of Constitutionalism. Rule of law embodies the basic principles of
equal treatment of all people before the law, fairness, and both
constitutionalism and actual that guarantees basic human rights1.
The rule of law implies that the supremacy of law and that all laws must
conform to certain minimum of standards for instance protection of civil
liberties. Thus, it can be concluded that rule of law requires laws to respects
certain inalienable rights. Professor A.V Dicey developed concept of rule of
law that comprises three concepts of principles. Firstly, no one should be
punished except for a conduct which represents a clear breach of law. Secondly,
irrespective of ranks and status all are equal before the law. Thirdly, rights
and freedoms are best protected under Common Law rather than Bills of Rights.
Generally, rule of law is the principle that no one is above the law and treated
equally among citizens and laws are made to maintain law and order in our
society and provide a harmony environment for the sake of progression of people2.
In Malaysia, the FC embodies the application of rule of
law and the principles of rule of law by A.V Dicey. Art 4 of FC is the basis of Malaysian rule of law where the purpose
of the constitution is to establish rule of law. The second principle laid down
by A.V Dicey which was equality before the law irrespective of ranks and status.
This principle states that all the people irrespective of their ranks and
status in the society, all are bound by law and are equal before the law. The
law here refers to the law that was administered by the ordinary law courts.
This principle includes the government and the government must give their
respect to the law. In simplest words, no one is above the law including the
government. Everyone must be governed by law and all people is subjected to be
equal before the law.
For this, Art 8 of FC governs the rights to equality. Art 8(1) of FC states that all persons are equal before the law and
entitled to the equal protection of the law. Art 8 can be recognized in the case of Public Prosecutor v Tengku Mahmood Iskandar3.
In this case, the High Court, having regard to the gravity of the offence,
substituted a more severe sentence for a lesser one imposed by a lower court,
which had taken into account the status of the accused as a Prince of the ruling
house of the state of Johor. The High Court stated that the decision of the
lower court had conflicted with the provisions of Art 8 of FC which says that all persons are equal before the law.
That 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.
It can be said that the Malaysian
Constitution is more towards equity4
rather than equality. Art 8 of FC is
available to everyone and not only to the citizen of Malaysia. However, the issue here is that the rights provided
under Article of 8 of the Federal Constitution is not absolute. This is
due to the fact that there are various discrimination that are exempted from Art 8. All of these exceptions are
provided under Art of 8(5) of the.
The exceptions are as follows: a) provisions regulating personal law such as
Islamic laws; b) provisions restricting employment in establishments
established by certain religious groups, for example, Administration of Religious
Institution such as mosque; c) provisions protecting the wellbeing of the
aborigines, for example, Malay privileges under Art 152 and 153; d)
provisions prescribing residence in appointment or election for state offices,
for example, local authority; e)
provisions in the state constitution which has already existed before 1957; and
f) provisions restricting the enlistment in the Malay Regiment to the Malays.
The phrase “except as expressly authorized
by this Constitution in Arti 8(2) of
the FC implies that other provisions
in the Constitution may sustain discrimination or inequality. Also, Art 8(3) provides that there shall be
no discrimination in favor of any person on the ground that he is subject of
the Ruler of the State. Article 8(4) also
states that no public authority shall be discriminate against any person on the
ground that he is part of the Federation outside the jurisdiction of the
authority. In the case of PP v Datuk
Haji Harun bin Haji Idris5,
equality provision is not absolute. It does not mean that all laws must apply
uniformly to all persons in all circumstances everywhere. Article 8 is also
qualified by permitted discrimination e.g. Article
8(5) and Article 153. The
prohibition on unequal treatment applies not only to the legislature but also
to the executive as can be seen from the words ‘public authority’ in Art 8(4) and ‘practice’ in Article 8(5)(b). This prohibition
applies both to substantive and procedural laws. In addition, Article 8
envisages that there may be lawful discrimination as specified by Art 8(5) such as Muslim as opposed to
non-Muslims, residents in particular states as opposed to others and Malays and
natives of Borneo as opposed to others. The question to ask is whether the law
is discriminatory. If it is not, for e.g. it applies to everybody, it is a good
law. But if it is discriminatory, then one should see whether such
discrimination falls within the exceptions allowed by the Constitution or by
judicial interpretation. If it is, then it is good law. In this case, the judge
failed to define equality however, the judge gave a list of criteria to
equality as mentioned above.
Also, in the case of Beatrice Fernandez v Sistem Penerbangan
Malaysia & Anor6,
The terms and conditions of
the appellant’s employment with Sistem Penerbangan Malaysia were governed by a
collective agreement, Art 2(3) of
which provided that she must resign from her position as a flight-stewardess or
be terminated if ever she should become pregnant. As it transpired, the
appellant did become pregnant in the course of her employment, and the Airline,
upon her refusal to submit her resignation, terminated her services. Aggrieved,
the appellant brought an action in the High Court praying for, inter alia, a
declaration that: (i) the collective agreement was ultra vires to Art 8 of FC and, therefore, void; and
(ii) the termination of the appellant’s services was in contravention of S.14(3) of the Industrial Relations Act 1967 an S.37 and S.40 of the Employment Act 1955 and, therefore, void.
The learned judge rejected the appellant’s action and she appealed to the Court
of Appeal. The federal court held that Art. 8 only dealt with infringement of
rights committed by the legislative or executive.
Similarly, in United Kingdom it
also embodies rule of law. However, in United Kingdom, the citizens are
governed by Equality Act which came
into force on 1 October 2010. The Equality Act provides a legal framework to
protect the rights of individuals and advance equality of opportunity for all. The
Act simplifies, strengthens and harmonizes the current legislation to provide
Britain with a new discrimination law which protects individuals from unfair
treatment and promotes a fair and more equal society7.
The nine main pieces of legislation that
have merged are as follow: The Equal Pay
Act 1970; the Sex Discrimination Act 1975; the Race Relations Act 1976; the
Disability Discrimination Act 1995; the Employment Equality (Religion or
Belief) Regulations 2003; the Employment Equality (Sexual Orientation)
Regulations 2003; the Employment
Equality (Age) Regulations 2006; the Equality Act 2006, Part 2; and the
Equality Act (Sexual Orientation) Regulations 2007. The Equality Act protects people from
discrimination in society including workplace.
It can be said that the Equality Act 2010 in United Kingdom is more
wider in governing the citizen’s rights to equality compare to Malaysia under
Article 8 of the Federal Constitution. As Article only covers discrimination
against citizen on the ground of religion, race, descent, place of birth or
gender. While the Equality Act covers employment discrimination, sexual
discrimination, equal pay act and also sexual orientation. All these 4 was not
covered in Art 8 of FC. In my point of view, the definition of
discrimination under Art 8 of FC is
narrow compare to the definition of discrimination under Equality Act in United Kingdom. The types of discrimination that
was covered under Article 8 of the
Federal Constitution is very little and very general and it did not cover
other types of discrimination other than religion, race, descent, place of
birth or gender while the Equality Act covers many types of discrimination not
only religion, race and etc.
As in New Zealand, the Bills of Rights Act governed the
citizen’s equality which are recognized by the International Covenant and also
recognized by common law. Example of the rights are such as not to be deprived
of life; not to be subjected to torture or cruel treatment; not to be subjected
to medical or scientific experimentation; and to refuse to undergo medical
rights are expressed by the Bill of
Rights Act, for an instance, the right not to be subject to unreasonable
search and seizure, and the right not to be arbitrarily arrested or detained.
In New Zealand, all natural and legal persons this includes the Crown are equal
before the law and all are subject to it. However, there are exceptions to
The exceptions are such as that
certain public functions must be performed and in this case the Crown is has
additional powers that is not enjoyed and it does not benefit the citizen.
However, these additional powers must be performed according to the law. These
exceptions are given to the Crown in New Zealand can be related to the case of PP V Datuk Haji Harun bin Haji Idris,
where in this case the judge stated that not all laws applies uniformly to all
people. Thus, this shows that the government officials or any public authority
that have powers or influence in the society may get exempted from the laws or
in a simple way of saying, these people have immunity towards the law. This
same goes to the Crowns in New Zealand and also the Queen and also the
Parliament in UK as these group of people have immunity towards law.
The Bill of Rights Act also
includes rights of freedom of expression, which is subject to the controls of
the Defamation Act 1992, the right not to be subject to unreasonable search and
seizure and also the right not to be arbitrarily arrested or detained. The
Bills of Rights Act in New Zealand is specific with the words equality and it
does not have much exceptions to the rights of equality to the citizen except
that the Crown is given an additional powers so that certain public functions
can be performed and these powers are subjected to law. In addition, the Crown
has no immunity or power over the citizen except to the extent of necessary to
allow it’s public functions to be performed. In relating to Art 8 of FC, it is not absolute as it
has many exceptions to it in order for the citizen to use their rights to
equality under Article 8 and the fundamental liberties of a person can only be
apply when a private person is against the government. Art 8 of FC is subjected to many exceptions for a person to
exercise their rights, it’s like the Malaysia citizen is constraint by so many
exceptions till they don’t really have the rights of equality in the country or
the society. While under the Bills of
Rights Act in New Zealand, the Act has a only few exceptions but all these
exceptions does not seem to constraint the rights to equality for the New
In conclusion, Art 8 of FC is not absolute as the fundamental liberties can only
be apply when a private person is against the government, the application is
very narrow and the rights to equality is subjected to many exceptions stated
under Art 8. Furthermore, the
interpretation of the word equality under Article 8 is very narrow compare to
in UK and New Zealand.
(2018). The rule of law explained. online Available at:
(2018). The rule of law explained. online Available at:
4 Equity: the
quality of being fair and impartial
1997 2MLJ 155
6 2004 4 CLJ 403
(2018). What is the Equality Act? | Equality and Human Rights Commission.