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Friday, April 6, 2007

No Discrimination Please, We’re Malaysians

Equality? What’s that?

Perhaps it has been the years of abuse that has been permitted under the guise of the NEP or the devastating continued and divisive emphasis on race and ethnicity by our leaders and politicians. Whatever the cause, most Malaysians have become cynical about Unity and Equality.

The former has become nothing more than a political catchword heard more often as General Elections draw near. The latter is a word that even politicians fear to use, possibly fearing that they might be called upon to justify what they have said. I would think that any attempt to articulate Equality against the backdrop of contemporary Malaysia is akin to taking a stroll in a minefield.

Think about it. When did you last hear a politician say the word Equal when talking about Malaysians. I do not think I have ever heard it being said. I hear, all the time, “We are all Malaysians” or “This is for the good of all Malaysia”, or words to that effect. But never “We are all equal” or anything like that.

But why should that be the case? The law does not support discrimination.

What Is The Law?

The Constitution is built on a foundation of non-discrimination. Each citizen is guaranteed basic rights, including the right to equality (Article 8). This particular right is structured around two central pillars: the right to equality before the law and the right to the equal protection of the law. It is put this way in the Constitution:

8. Equality.

(1) All persons are equal before the law and entitled to the equal protection of the law.

(2) Except as expressly authorised 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.”

The provision means what it says. There shall be no discrimination on the ground only of religion or race or gender (amongst other things). That means every one of us is entitled to say that we want our place in the sun, to quote the Raja Muda of Perak. We have an equal right to define ourselves by our own religions, race, and gender. We are all guaranteed an equal right to avail ourselves of the law, the principles of which are equally applicable to all of us. After all, we are all guaranteed an equal right to participate in representative government through the right to vote.

What About The Special Status Of Malays/Natives Of Sabah & Sarawak?

My first posting on this blog explained the impact of Article 153 of the Constitution, the provision providing for special status for the natives of Sabah and Sarawak and the Malays ("A Matter Of Protection, Not Privilege"). It bears repeating: the provision allows for limited preferential treatment for the purpose of protection. The provision does not bestow privileges on the communities identified nor does it create a privileged class.

What About Islam?

What about Islam then, some might ask. The Constitution does not in any way provide that Islam is to be preferred to other religions. To the contrary, the Constitution declares that all religions may be practiced in peace and harmony (Article 3(1)).

Similarly, the Constitution does not provide that Islamic law is to be applied in preference to civil law. Instead, the Constitution envisages that in matters of public and private law, secular law is to be applied. Islamic law is to be applied only in respect of matters of Islamic personal law and to persons professing the religion of Islam. As to what that personal law is, it is for the relevant legislative body to enact law to provide for it.

The question then is whether the existence of an Islamic law system for the application of muslim personal law discriminatory i.e. in violation of Article 8? The answer is no as Muslims are legitimately treated as a class or category distinct from others. This is contemplated by the Constitution which envisages the application of Islamic personal law to Muslims. Constitutional theory permits what is referred to as ‘rational classification’ where it is necessary to view individuals as belonging to a class. This permits a difference of treatment between members of that class and non-members. In this case the distinctive feature of members of the class in issue is the professing of the religion of Islam.

It follows that Islamic personal law cannot be applied to non-Muslims. Civil law applies. Further, all members of the non-muslim class are to be treated equally and have equal protection before the law in so far as personal law considerations are concerned. Subjecting non-Muslims to Islamic personal law would be in violation of Article 8. It would be discriminatory.

In all other aspects save for where Article 153 is applicable, all Malaysians are to be treated equally.

Where Does That Leave Us?

With the right to insist on equality of treatment. Such insistence is in no way a challenge to the special status of the Malays as contemplated under the Constitution. Equality of treatment can co-exist with measures aimed at providing protection to the Malays. Equality cannot however co-exist with a 'privilege' system. In the same way, Unity cannot co-exist with a 'privilege mindset'. Continuing to delude ourselves will only be to the detriment of the nation. All of us will be affected, Malay and non-Malay.

Isn’t it time for us to start insisting that our politicians start using the E word?



Jazzi said...

Thanks yet again for your enlightening articles about the law of Malaysia. Will link/copy+paste this on my blog if you don't mind. =). If only all Malaysians were properly taught our rights..

Anonymous said...

Your views are so clearly articulated . If a layman can understand the issues and principles involved, why is it that our so called "learned" judges can't?...or is it that they chose not to.

Anonymous said...

.."Islamic law is to be applied only in respect of matters of Islamic personal law and to persons professing the religion of Islam."...

What about people that are born into Islam but looking for a way out? Does secular law provide justice for this scenario?

Anonymous said...

its hard swimming up the mainstream bro..even harder screwing yourself upstream..dont shake the national tree when you could only harvest the rotten fruits of your hard labour...carry on being a good defender but dont waste your time on national issues that is too deeply rooted for the will be pelted down by rotten fruits. my tuppence worth to my friend..

NAUT NAUT said...

Its an eye opener for me on personal laws. At least you are not joining the screwed upstream. The pest will eventually will bring down the whole tree if not addressed accordingly.

NAUT NAUT said...

Thanks for the eye-opener on Islamic personal law. At least you are not joining the screwed mainstream. The pest that caused rotten fruit will make the whole tree rotten and eventually bring the tree if not addressed accordingly.