By Syahredzan Johan*
The Star
28 Dec 2017
A constructive rather than a punitive approach would be more likely to achieve the goal of promoting equality.
Last month, I wrote about the need for the Government to take steps to enact laws to deal with unfair discrimination, in response to the controversial revelation that frontline staff working in certain hotels are forbidden to wear the headscarf (hijab).
The article also stated that although the Federal Constitution prohibits discrimination against citizens on grounds of race, descent, gender and place of birth, the prohibition is only limited to discrimination by a public body.
Those in the private sector, in the absence of legislation, would not have legal recourse if they are unfairly discriminated against.
However, unfair discrimination exists not only in employment, but also in other aspects outside the workplace, whether it be by public bodies, private corporations or individuals.
For example, the attempt by certain apartments and condominiums to prohibit parcel owners from renting out their parcels to Nigerians is unfair discrimination.
If legislation is to be considered, it must go beyond discrimination in employment. Any proposed law must define what constitutes discrimination that is “unfair”.
A definition must be specific enough to provide certainty, yet wide enough to recognize that a rigid definition would be unhelpful.
The anti-discrimination law must, at its core, aim to promote equality and non-discrimination, and not be primarily punitive in nature.
Sanctions may be needed to ensure compliance, but must not be the main object of the law.
The National Unity Consultative Council (NUCC) had some years ago proposed two draft bills to deal with unfair discrimination.
The bills, known as the National Harmony and Reconciliation Bill and the National Harmony and Reconciliation Commission Bill, were put up for public feedback but were not taken up by the Government.
The bills proposed a tribunal that would hear complaints of discrimination from the public.
It was thought that a tribunal would be a more appropriate forum to decide on such matters, as bringing the matter to court would subject it to procedure that would be adversarial in nature.
The aim of the tribunal would be reconciliation and achieving a result without the need for sanctions in the first instance. Sanctions would only be imposed if there was non-compliance to the decision of the tribunal.
It would also mean that there was greater access to justice, compared to the court system which might be costly. The tribunal would also be able to determine, with a certain degree of flexibility, whether a practice or policy was discriminatory, and if yes, whether it was unfair.
Those NUCC bills were far from perfect, but they at least offered a starting point for what anti-discrimination laws in this country might be like. Some of the proposals contained in those bills should be taken into consideration.
*Syahredzan Johan was involved in the drafting of the NUCC’s proposed bills. He is a partner of a legal firm in Kuala Lumpur with an interest in the laws that shape our country. He can be reached at http://syahredzan.johan@gmail.com. The views expressed here are entirely the writer’s own.
