BY SHAD SALEEM FARUQI
The view that the protection of the Constitution is restricted to the public sector is based on a bygone political ideology.
SOMETIMES trivial issues ignite tremendous debates.
If a laundromat owner running a public utility business that is licensed by a local authority excludes non-Muslim clients, is his discriminatory conduct counter to the uplifting message of our Constitution that “all persons are equal before the law”?
Is his conduct a violation of the provision that “except as expressly authorised … there shall be no discrimination … on the ground only of religion, race, descent, place of birth or gender…”?
Opinions are deeply divided.
Inapplicability of Constitution: Some scholars are of the view (and I respectfully disagree with them) that the shade of the Constitution applies only to “public law” situations involving the citizens’ relationship with public authorities.
It was said in Beatrice Fernandez v Sistem Penerbangan Malaysia that constitutional law deals with the contravention of individual rights by the legislature or the executive or its agencies and does not apply to the infringements of an individual’s right by another individual.
This means that purely contractual, commercial and domestic relationships – parent-child, school-pupil, employer-employee, and business-client relationships – are largely excluded from the Constitution’s sacred mandate.
Thus, in Teoh Eng Huat (1990) a parent can prevent his minor child from exercising her freedom of religion to convert.
Employment: In Beatrice Fernandez it was held that the guarantee of gender equality applies only to employment under a public authority, so that a flight stewardess with a private company can be sacked because she got pregnant contrary to a collective agreement.
No law was violated: In the USA’s Civil Rights Act and the United Kingdom’s Race Relations Act, discrimination in the private sector is banned if the business hires more than a certain number of employees or serves more than a certain number of clients.
Malaysia has virtually no anti-discrimination laws for the private sector. This means that till the law changes, private businesses are free to choose their customers irrespective of the Constitution’s promise of non-discrimination. It would be different if a law, like the Private Higher Educational Institutions Act 1996 does, were to explicitly mandate that membership of a private higher educational institute shall be open to all persons irrespective of sex, race, religion, nationality or class.
Broader perspective: The above restrictive view that the beneficence of the Constitution is restricted to the public sector is based on a bygone political ideology that Constitutions are drafted to protect citizens only against the tyranny of the state.
The reality today is that corporate power rivals and, in some instances, exceeds government power. Tyranny is tyranny, no matter what its source – public or private, offshore or onshore.
It was an error of jurisprudence for the judges in the Beatrice Fernandez case to hold that the guarantees of the Constitution apply only against public authorities. Many provisions of the chapter on fundamental liberties imply otherwise.
Article 5: This Article safeguards personal liberty. In both Malaysia and India, the writ of habeas corpus has been issued against parents detaining their adult daughters to prevent the offspring from exercising their life choices of marriage, residence and employment: Munusamy v Subramaniam; Rajmohan v Sulaiman.
Article 8(1): This provision is beautifully worded. “All persons are equal before the law and entitled to the equal protection of the law”. This is in contrast with India, where Article 14 says “the state shall not deny to any person equality before the law or the equal protection of the law”. In Malaysia, the provision is not confined to the state.
Article 8(2): This article bans discrimination in many areas. One of them is public employment. But there are other prohibitions which would conceivably cover the private sector as well, for example the administration of any law relating to the carrying on of any trade, business, profession or vocation.
It is noteworthy that the laundry businesses in Johor and Perlis were subject to a licensing requirement under a local authority law.
Other fundamental liberties: Freedom of association (as, for example, the right to unionise), freedom of religion and right to property are available against all persons and not just public authorities.
Suggestions: It is time to broaden our horizons and abandon the belief that human rights apply only against the state.
A person can be allowed to discriminate in the choice of his cook, driver or maid. But when it comes to supplying a public service where there is a public law element, the safeguards of constitutional and administrative law must apply.
Not the issue of public law or private law, but the criterion of reasonableness should be employed as was the case in Meor Atiqulrahman Ishak (2000). A school can prevent the wearing of serbans at school assemblies.
In Halimatussaadiah v Public Services Commission, the Govern-ment as an employer can impose a reasonable dress requirement on its employee, barring her from wearing purdah to office despite the claim of freedom of religion.
In addition, Parliament must enact a National Harmony Act to forbid race and religious discrimination in all sectors, save to the extent explicitly permitted by the Consti-tution. This will be in line with worldwide trends.
Emeritus Professor Dr Shad Saleem Faruqi is Tunku Abdul Rahman Professor of Law at Universiti Malaya.