INSTEAD of considering the calls to amend the Federal Constitution to limit the top leadership post to one particular race, the government must legislate a law to prevent discrimination.

What is discrimination? Discrimination is the process of making unfair or prejudicial distinctions between people based on race, class, gender, age, religion, physical attractiveness, or sexual orientation. Discrimination typically leads to groups being unfairly treated. It involves depriving people of opportunities or privileges that are available to others.

The effects of discrimination are severe on society, especially a multi-racial society such as Malaysia. If we allow discrimination to take place, it can give rise to unsatisfied feelings which eventually can lead to bitter conflict. Explaining why discrimination happens is complicated. The human brain naturally puts things in categories to make sense of the world. Young children quickly learn the difference between boys and girls, for instance. But the values we place on different categories are learned from our parents, our peers, and the observations we make about how the world works. Often, discrimination stems from fear and misunderstanding.

Discrimination is a serious issue that needs to be addressed through comprehensive and effective laws. We cannot simply insert the problem under an existing law that has its limitations in terms of implementation and enforcement. Thus, it would be much better if we could enact a specific law on such matters. Having such a law would make people take the issue seriously and permit the victim to lodge a report and take legal action.

The government should also take note of the recent 2023 Malaysian Discrimination Situation Survey conducted by the Architects of Diversity Malaysia, which found that only 45% of Malaysians are satisfied with government initiatives to address discrimination in the country. According to the survey, a majority of Malaysians have encountered some form of discrimination over the past 12 months.

The social reform group’s executive director, Jason Wee, said a survey found that 64% of Malaysians have experienced discrimination, primarily on social media (32%), while job hunting (30%) and at the workplace (29%). Malaysians experienced discrimination related to their socio-economic status (38%), age (33%), and ethnicity (32%).

Wee said 3,238 responses were recorded from across the country in the 2023 State of Discrimination Survey. The online survey obtained feedback from all the major races, with 1,469 respondents aged between 25 and 39. The survey found that Malays and Indians were more likely to report experiencing pay-related discrimination than the Chinese.

The highest law in the land, the Federal Constitution, prohibits discrimination. Article 8(1) says “All persons are equal before the law and entitled to the equal protection of the law.” Article 8(2) adds “Except as expressly authorised 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.”

The recent Employment (Amendment) Act 2022, which came into effect on January 1, also prohibits discrimination among workers. The amendments empower the director-general under section 69F of the Employment Act 1955 to inquire into and decide any dispute between an employee and his employer in respect of any matter relating to discrimination in employment and may also, pursuant to such decision, make an order.

An employer who fails to comply with any order of the director-general commits an offence and shall, on conviction, be liable to a fine not exceeding RM50,000. In the case of a continuing offence, the employer shall be liable to a daily fine not exceeding RM1,000 for each day the offence continues after conviction. However, the expression “discrimination” is neither defined nor made an offence. The amendments also do not provide any remedy if the director-general finds that a dispute between employer and employee relates to discrimination in employment.

It is pertinent to note that the amendments only extend to discrimination once the employment relationship is entered into and do not address discrimination as a basis for refusal of employment or non-employment. Employment Act 1955 is only applicable in Peninsular Malaysia and Labuan. Sabah and Sarawak have their own Labour Ordinance. 

Due to these reasons, it is crucial for us to enact a law to address and tackle the issue of discrimination in the country effectively. The government may refer to the approach taken Australia, Belgium, the UK and the US to address the issue through legislation. Discrimination should be seen as a serious public issue and must to be tackled seriously and effectively. – December 16, 2023.

* Muzaffar Syah Mallow is associate professor at the Faculty of Syariah and Law, Universiti Sains Islam Malaysia.