KUALA LUMPUR, Nov 15 ― Enacting a law against employment discrimination will not contradict constitutional provisions that provide for Bumiputera quotas for positions in public service, lawyers said.
Lawyer Surendra Ananth noted that the Federal Constitution’s Article 153 ― which covers the special position of Malays and Sabah and Sarawak’s natives ― is limited to only the public sector in terms of the workplace, and already provides for the equality that a workplace discrimination law would push for.
“I don't think there would be a contradiction of Article 153. As far as workplace is concerned, Article 153 refers expressly to public services only. Further, Article 153 inherently provides for the safeguard of equality and non-discrimination,” he said, citing Article 153(5) which expressly said that nothing in Article 153 would diminish Article 136.
“Article 136 guarantees that persons of all races in the public services shall be treated impartially,” the Malaysian Bar’s constitutional law committee’s deputy co-chair told Malay Mail Online yesterday.
Surendra also did not think Article 153 can be “read so widely”, pointing out that the White Papers leading to the Federal Constitution showed the framers' intention for the the special position of the Malays to be reviewed every 15 years and to ultimately create an equal playing field for all citizens regardless of race and religion.
Surendra felt that individuals and the private sector, especially large corporate bodies such as government-linked companies (GLCs) and private firms that have power over people's lives, should also be required to uphold fundamental liberties, including the right to equality under Article 8 of the Constitution.
“To this end, I think the public should be allowed to initiate actions against such private or semi-private bodies for violation of basic rights, including the right to be treated equally,” he said.
Lawyer Syahredzan Johan supported the idea of having a law prohibiting workplace discrimination, noting that the Federal Constitution itself prohibits discrimination through Article 8(2) but was previously ruled by the country's highest court to be limited only to situations when a person's rights is infringed by the government.
He referred to the Federal Court's 2005 decision in Beatrice Fernandez v MAS, saying: “What this means is that an individual cannot rely on constitutional provisions when the infringement is by another individual (or private company).”
Anti-discrimination laws between individuals or companies should be created due to the 2005 ruling, Syahredzan said, also noting: “As for Article 153, the proposed legislation can for example 'carve out' areas which fall squarely within the quota of Article 153 for Malays and natives of Sabah and Sarawak.”
Lawyer Nizam Bashir said that any law that seeks to prohibit workplace discrimination based on religion, race, gender and disability “needs to be tailored to meet the unique features” of the Federal Constitution, referring specifically to the Federal Constitution's Article 153, as well as the permitted exceptions to Article 8’s guarantee of equality such as in Article 8(2) and Article 8(5).
Article 8(2) allows discrimination if expressly authorised by the Constitution, while Article 8(5) among other things allows the restriction of employment in a religious institution to persons professing that religion; and laws to reserve the reservation to aborigines of a reasonable proportion of suitable positions in the public service.
While leaving it to those drafting a workplace discrimination law to accommodate these “unique features”, he suggested it could state that it is “not intended to invalidate the exceptions to equality set out in relevant Articles like Article 8(2)”.
Nizam also noted that the Federal Court's 2005 view that the private sector is not bound by the constitutional rules for equal treatment was reiterated as recently as October 2017 by the country's fifth Chief, Justice Tun Abdul Hamid Mohamad, in his column in PAS publication Harakahdaily.
Counterproductive to impose equality on Malaysians?
Lawyer Fahri Azzat noted that Article 153 is about protecting the interests of the Malays and natives of Sabah and Sarawak and balancing it against the interest of the other communities, saying: “I fail to see how this has to do with that law about anti-discrimination for employment on those grounds cited.”
He said that having a law against workplace discrimination in Malaysia's present context would be “rather hypocritical and ultimately futile”, as well as cause further uncertainty in the business environment.
“We have a plethora of government policies, bodies and acts that blatantly discriminate on race and religion. So we have active, daily and persistent discrimination in the public sphere,” he said, without elaborating.
Fahri added that those frustrated with discrimination in the public sphere would also impose discriminatory practices in the private sphere.
“If such a law comes to be passed, we will have the irony if not hypocrisy of private companies not being able to discriminate on race and religion but government being able to do so. It will create further tension and anxiety in society and would not make setting up and running a business cheaper, or more efficient or easier,” he said, adding that employers would have more to comply with and also incur cost.
Fahri argued that instead of imposing a law akin to “We Have to Be Nice to Each Other Act 2017” and that seeks to control behaviour, it should be left to society to work out and regulate behaviour.
He explained that a law imposing fairness and non-discrimination would only be a short-term measure that does not address the resentment or objections to such a policy which would be left to fester, as compared to mature discussion on this matter that would in the long run benefit society.
Surendra cautioned against imposing affirmative action or policies in the private sector, saying however that it may be sufficient for now for fundamental liberties to be extended to private actors through “judicial activism” by judges in their court rulings.
“Ideally, society needs to be educated to reach a level of maturity to understand that all persons are equal. It is only when there is a market that businesses which operate on discrimination exist. Forcing laws on society might have [a] counterproductive effect,” he said.
While believing that an anti-discrimination law is necessary, Syahredzan said he would prefer it to cover “unfair” discrimination in other areas instead of covering only the workplace.
“The important element here is 'fairness'; some types of discrimination is justified and fair. Also, the focus should not be on sanctions and penalties, but on encouraging equality and non-discrimination, and trying to facilitate a resolution,” he said.
The four were asked to comment on PKR MP Rafizi Ramli's proposal on Monday for a Fair Work and Career Opportunity Act, where workplace discrimination would be penalised and with a commission to ensure employers nationwide do not engage in discriminatory practices. He did not specify if his proposal was for the private sector only, or also for the public sector.
The National Unity Consultative Council had previously proposed two anti-discrimination draft Bills, with the National Harmony and Reconciliation Bill requiring both the government to promote equality and to bar unfair discrimination based on religion, race, descent, birthplace, gender or disability, Syahredzan said.
Syahredzan, who helped draft these Bills, said complaints of unfair discrimination were supposed to be inquired into by a commission created under the National Harmony and Reconciliation Commission Bill and to be dealt with by a tribunal that could reprimand and issue orders.