1.0 Introduction of the Research This research will be analysing and discussing the whole of Article 8 of Federal Constitution with specific reference to its applicable within the employment area. Although Malaysian Federal Constitution has confer the rights to equality for the citizen via the Article 8, there are still happened the scenario where some people were treated unfavourable and harshness or in the other words it can be said that there still occurred any kind of discrimination happened in Malaysia either we realised it or not. The form of the discriminations that were happened in Malaysia was either in the aspects of race, gender, religion and so on because of the differences of the employment sector. Thus, this research will be clarified why these kind of discrimination still occurs and will be analysed the application of Article 8 of Federal Constitution within the scope of the employment. 1.
1 Background of the Research As far as Article 8 of the Federal Constitution is concerned, there are wide scopes and areas which can be opened up to a discussion, however, due to the purpose of this research, this research will only focus on the checking of the application of Article 8 of Federal Constitution within the scope of the employment at the private sector. In order to ensure that this research will fulfil its objectives, there are several articles and journals written by the experts on this field discussing on the matter of equality in employment were taken into account by the researchers while preparing for this research. There are several issues arise from the discrimination occurs in employment such as in the Article 8 of the Federal Constitution only covers discrimination in public sector and does not include the discrimination of employment under a private sector. This can be seen when in that said Article stated except as expressly authorised by this Constitution, there shall be no discrimination against citizens on the ground only of religion, race, descent, gender or place of birth 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. Here, according to the Article 8(2) of the Federal Constitution, the private sector does not entitled to the equal protection of the law if there is discrimination happened as they are said to be bound by the collective agreement. Moreover, Article 8(2) of the Federal Constitution only covers the infringement of individual rights by a public authority but it does not extend to the private sector as private sector employee is being considered as different class of a person with public sector employee. Thus, it is clearly shown that the Federal Constitution could not protect the rights of the private sectors employee and the equality in the scope of the employment for private sector employee is not yet achieved by this country. There are also ways listed down by the researchers to encounter discrimination in employment such as the law need to be treated likely and entitled to the same protection of law regardless of what sectors are the employees come from.
Article 8 of the Federal Constitution actually was drafted to promote equality to all people regardless of the status of races, genders or religions. Here, it means that there shall be no discrimination happens at all in order to safeguard a citizen’s right as a human being. This has been beautifully worded in Article 8(1) of Federal Constitution where all persons are equal before the law and entitled to the equal protection of the law. This provision indicates that everyone deserves and entitled the equal rights and protection of the law. The discrimination that does not allowed in pursuant to Article 8(1) of Federal Constitution then was later being explained in the Article 8(2), (3) and (4) of Federal Constitution. In the Article 8(2) of Federal Constitution stated that except as expressly authorized 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.
In Article 8(3) of Federal Constitution stated that there shall be no discrimination in favour of any person on the ground that he is a subject of the Ruler of any State and according to Article 8(4) of Federal Constitution, it stated that no public authority shall discriminate against any person on the ground that he is resident or carrying on business in any part of the Federation outside the jurisdiction of the authority. From the listed provision above shows that there shall be no discrimination happened to any Malaysian citizen as there is a law that safeguard the citizen’s right. It also means that there should be no discrimination for the private sector employee to be guaranteed their rights according to Article 8(1) and (2) of Federal Constitution if there was discrimination happened especially if their fundamental rights had been breached. This kind of discrimination happen because the Federal Constitution via Article 8(2) does not expressly stated that such discrimination shall cover the private sector employee too. When there is a lacuna in the law, the inequality in the employment matters happened. Thus, there is a research needs to be conducted as to analyse back the application of Article 8 of Federal Constitution that promotes equality. Besides, this research is vital to ensure that there is no this kind of discrimination will occur again in Malaysia especially within the scope of employment at private sector.