Rule to certain minimum of standards for instance

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Rule to certain minimum of standards for instance

Rule of law is 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 rights. (“The rule of law explained”, 2018)  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 conclude 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 people. (“The rule of law explained”, 2018)In Malaysia, the Federal Constitution embodies the application of rule of law and the principles of rule of law by A.V Dicey. Article 4 of the Federal Constitution 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. In Malaysia, Article 8 of the Federal Constitution governs the rights to equality.  Article 8(1) of the Federal Constitution states that all persons are equal before the law and entitled to the equal protection of the law. Article 8 can be recognized in the case of Public Prosecutor v  Tengku Mahmood Iskandar. 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 Article 8 of the Federal Constitution 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 equity rather than equality. Article 8 of the Federal Constitution 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  Federal Constitution is not absolute. This is due to the fact that there are various discrimination that are exempted from Article 8. All of these exceptions are provided under Article of 8(5) of the Federal Constitution.  The exceptions are such as provisions regulating personal law, provisions restricting employment in establishments established by certain religious groups , provisions protecting the well being of the aborigines , provisions prescribing residence in appointment or election for state offices , provisions in the state , and provisions restricting the enlistment in the Malay Regiment to the Malays.The phrase “except as expressly authorized by this Constitution … in Article 8(2) of the Federal Constitution implies that other provisions in the Constitution may sustain discrimination or inequality. Also Article 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 Idris, 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 Article 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 Article 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 & Anor, The terms and conditions of the appellant’s employment with Sistem Penerbangan Malaysia  were governed by a collective agreement, article 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 art. 8 of the Federal Constitution 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 ss. 37 and 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 citizen 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 society. (“What is the Equality Act? | Equality and Human Rights Commission”, 2018)  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 much more wider in governing the citizen’s rights to equality compare to Malaysia under Article 8 of the Federal Constitution. As Article  8 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 Article 8 of the Federal Constitution.  In  my point of view, the definition of discrimination under Article 8 of the Federal Constitution 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 2011 governed the citizen’s equality which are recognized by the International Covenant and also recognized by common law . (“NZLC – Report 37: Crown Liability and Judicial Immunity: A response to Baigent’s case and Harvey v Derrick – 2 Principles”, 2018) 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 treatment. Other 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 . (“NZLC – Report 37: Crown Liability and Judicial Immunity: A response to Baigent’s case and Harvey v Derrick – 2 Principles”, 2018)  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 this rights. (“10. Applying the statute to the Crown | The Legislation Design and Advisory Committee”, 2018)The exceptions is 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. This exceptions 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. (“10. Applying the statute to the Crown | The Legislation Design and Advisory Committee”, 2018)  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. (“NZLC – Report 37: Crown Liability and Judicial Immunity: A response to Baigent’s case and Harvey v Derrick – 2 Principles”, 2018) In relating to Article 8 of the Federal Constitution, Article 8 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. Article 8 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 Zealand’s citizen.In conclusion, Article 8 under the Federal Constitution 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 Article 8 . Furthermore, the interpretation of the word equality under Article 8 is very narrow compare to in UK and New Zealand.

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