ALL ANIMALS ARE EQUAL

Introduction

“Four legs good, two legs bad.” ― George Orwell

Many of us are familiar with the famous sentence from George Orwell's novel Animal Farm: "All animals are equal, but some animals are more equal than others." To put it simply, it suggests that the word "equal" is a relative rather than an absolute term: there can be varying degrees of "equal-ness”, just as there can be varying degrees of, to name a few, brightness, effectiveness, or fondness.

In this context, Article 8(1) of our Federal Constitution states that all persons are equal before the law and are entitled to equal protection under the law. Furthermore, Article 8(2) expressly prohibits discrimination based on, among other things, religion, race, descent, place of birth, or gender. In light of this, can we confidently claim that we are not in the same situation as the animals at Manor Farm?

Like Circumstances

The answer is yes and no. For that, we should first refer to the case of Public Prosecutor v Khong Teng Khen & Anor.[1] In that case, Suffian LP stated so:

“…The principle underlying Article 8 is that a law must operate alike on all persons under like circumstances, not simply that it must operate alike on all persons in any circumstance, nor that it "must be general in character and universal in application and that the State is no longer to have the power of distinguishing and classifying persons … for the purpose of legislation"…”

In other words, the only thing guaranteed by Article 8(1) is that a person is treated the same as another person in the same circumstance. A child, for example, must be tried in the same way as another child, though he may be tried differently than an adult.

Permitted Discrimination

It is thus clear that the concept of equality enshrined in Article 8 is not absolute. In fact, discrimination is permitted by our Federal Constitution itself! Article 8(5), a constitutional exception to Articles 8(1) and (2), states that the following are not prohibited or invalidated by these two clauses:

1. any provision regulating personal law;

2. any provision or practice restricting office or employment connected with religious affairs to persons professing that religion;

3. any provision for the protection, well-being, or advancement of the Malay Peninsula's aboriginal peoples, or the reservation of a reasonable proportion of suitable positions in the public service to aborigines;

4. any provision requiring residence in a State or part of a State as a qualification for election or appointment to any authority having jurisdiction only in that State or part of that State, or for voting in such an election;

5. any provision of a State Constitution being or corresponding to a provision in force immediately before Merdeka Day; and

6. any provision restricting enlistment in the Malay Regiment.

Moreover, Article 153 of the Federal Constitution expressly permits the reservation of quotas for Malays as well as Sabah and Sarawak natives in certain aspects such as public service, scholarships, exhibitions, educational or training privileges, and permit or licence for services. All of this clearly shows that discrimination is not always illegal if it is permissible under our Federal Constitution.

Reasonable Classification

Furthermore, in light of the previous discussion of the Khong Teng Khen case, it is correct to say that Article 8(1) itself envisages lawful discrimination based on classification.[2] In Public Prosecutor v Datuk Harun bin Haji Idris & Ors, Abdoolcader J (as His Lordship then was) put it succinctly:[3]

“…The general basic principle culled from the authorities and judicially determined, succinctly put, is that Article 8(1) permits reasonable classification founded on intelligible differentia having a rational relation or nexus with the policy or object sought to be achieved by the statute or statutory provision in question…”

Accordingly, classification-based discrimination can be considered reasonable and lawful if:

1. it is founded on an intelligible differentia, i.e., a real and substantive attribute that distinguishes a group from the rest; and

2. it has a rational relation or nexus with the policy or object sought to be achieved by the statute.

As a result, it can be further deduced that the classification must be based on a genuine and substantial distinction. It must not be arbitrary, artificial, or ambiguous. All that is required is a "link" between the classification basis and the legislatively desired object.

For example, classifying lawyers into those who are members of Parliament and those who are not, was considered to be a reasonable way of ensuring that the Bar Council's governance was not in the hands of those with political inclinations. As a result, in Sivarasa Rasiah v Badan Peguam Malaysia & Anor,[4] a provision prohibiting a member of Parliament from serving on the Bar Council was found to be “lawful” discrimination.

Conclusion

To summarise, it is not incorrect to conclude that the equality provision under our Federal Constitution is, in fact, qualified. While admitting that some classes of people may be entitled to preferential treatment is undoubtedly a bitter pill to swallow, it should be emphasised that such preferential treatment shall be based on a reasonable and lawful basis. In fact, determining whether a particular classification was rational or not requires looking at the object and intent of the law in question.[5] As a result, the burden is on the person who challenges the classification to show that it lacks any reasonable basis and is essentially arbitrary.[6]

So, are we all equal? Or are we just another herd of animals in a different animal farm? Well, I guess you already have an answer.

Disclaimer:

This article does not and is not intended to constitute legal advice; instead, all information, content, and materials available in this article are for general informational purposes only. The author makes no representation as to the correctness or completeness of any information contained in this article, and the author shall not be liable for any errors or omissions contained in this article. The author assumes no liability for any losses, injuries, or damages resulting from the viewing or use of any information contained in this article.

[1] [1976] 2 MLJ 166, FC, 170. [2] The principle of reasonable classification applies only to Article 8(1) and does not apply to validate any discrimination based on the items listed down in Article 8(2): see Noorfadilla bt Ahmad Saikin v Chayed bin Basirun & Ors [2012] 1 MLJ 832, HC. [3] [1976] 2 MLJ 116, HC, 117. [4] [2010] 2 MLJ 333, FC. [5] Majlis Agama Islam Wilayah Persekutuan v Victoria Jayaseele Martin and another appeal [2016] 2 MLJ 309, FC. [6] Lindley v National Carbonic Gas Co [1911] 220 US 61. Salleh Abas LP referred to it in his dissenting judgment in Malaysian Bar & Anor v Government of Malaysia [1987] 2 MLJ 165, SC.