The Legal system of a civic society is its very lifeblood. It permeates every corner; every aspect of the life of its citizen, forming a web where every action whether public or private invariably falls within its jurisdiction. It prescribes limitations, in which norms of behaviour can be regulated to produce a harmonious and predictable existence; it also prescribes rights and freedom in which the individual dignity of human existence can be balance against the ambitions of the able and powerful. In this sense, the legal system is both the sword and the shield of the society – towing the line of predictable behaviour when needed, casting down its wrath onto those who seek destruction and defending those who are in need when summoned. The wielders of the law need to tread the fine balance of applying the multifaceted functions of law to the fit the right circumstances.
Hence, for the legal system to perform its function fairly and appropriately it needs to be applied fairly to all of its subjects. This equitable application of laws to all is fundamental to the health of a legal system because the sword cannot be wielded only by the powerful and the shield cannot falter in defence against intrusion. Equality before the law is thus the most prominent feature of a legal system that manifests the rule of law. Most scholarly elucidation on the concept of the rule of law seemed to agree on this point, because a legal system that does not apply equally to all would undoubtedly be wielded by those who are powerful, against those who are not. This is not rule of law, this is rule by men.
But the law cannot isolate itself from the vicissitudes of reality, and men no matter how noble the aspiration may be, does not exist in the equilibrium of ability, aspiration or condition. Some were born less able than others, some were born into environments more conducive for adaptation, some chooses path that leads to irreconcilable differences and others were empowered for the very fact of their condition. How can the law reconcile the many facets of its function to suit the many facets of reality?
The key word here is objectivity. As Lord Bingham in the 6th Sir David William Lecture puts it:
“The laws of the land should apply equally to all, save to the extent that objective differences justify differentiation.”
What then are objective differences? Take for example a person born with a disability that binds her/him to a wheelchair for the rest of her/his life. Special provisions in the law that protects this person in areas like access to public transports, employment, economic opportunities, and public amenities are objective differences because a disability in such environments puts this person in a disadvantage that s/he cannot alleviate; On the other hand, if the law protects this person in guaranteeing higher pay grade, access to higher education, health care or land ownership, these would be non-objective differences as being bound to a wheelchair does not necessarily disadvantage the person in such areas.
Needless to say, differentiation in law based along racial and religious lines are mostly non-objective in nature. Much of the discussion on economic disparities in this country is flawed in to its very core because the subject matter that underlines the debate is drawn along the misconception of ‘race’. Take a common theme – that the economic participation of Malays being disproportionately low, such conclusion is drawn because certain sector of society were deemed ‘Malay’ while others were ‘lain-lain’. Now assume that race did not exist and the divide in Malaysia is drawn along religious lines, the same study would then return a different result, say maybe that economic participation of Non-Muslim becomes disproportionately high compare to the ratio of Muslims. Should we then provide special protection in access to economic opportunity for Muslims? To take it further, if the divide is drawn along urban/rural, height or eye colour, should we then provide special protection for the rural, the vertically challenged or the light colour eyed? This is absurdity of the highest order!
While such logic is blatant, it is most often lost in public discourse regarding our distinct kind of affirmative action. Critiques usually highlight implementation deficiencies, failing to review the merits, or lack thereof, of the impugned policy. In the words of Azmi Sharom taken from the preface to Farish Noor’s ‘What your teacher didn’t tell you’:
“We have a society which is supposedly so sensitive that people walk around like damned exposed nerves.”
Indeed, being sensitive in Malaysia is elevated to such a high moral benchmark that even our courts interpret ‘public order’ so narrowly as if Malaysians are savages ready to work themselves into a frenzy of blood thirst at any hint of discord. I beg to differ on such low opinion of my fellow countrymen. Elements of extremities exist in any society but when the legal institutions cater to such extremities, it sends a message of acquiescence towards such behaviour, skewering the moderation in our societal norms, damaging the collective psyche of the nation.
Such is the influence of the legal institution in a civic society where the boundaries between morality and legality are blurred. Whether it is appropriate to distinguish between the two becomes immaterial, because the legal system is a safety net where the subjectivity of morality can be organized through the objectivity of the law. But it is also this very fact that discriminatory laws inevitably instil in its subject the illusion that it is morally just to discriminate, warping instinctive notions of justice, reducing evil to a mere ‘implementation deficiency'.
Even those who support our kind of affirmative action cannot deny the psychological cost we continue to pay for our discriminatory laws. These race based protective policy turn legal provisions are not double edged swords; they are swords that strike at both the protected and the discriminated. On one hand, they damage the collective confidence of the protected, whether needed or not, serving as a painful reminder that their success will be perceived as harvested, instead of earned; on the other hand, it carves a deep ravine of dissatisfaction on the side of those discriminated, seeking solace only in self elevation.
Equality before the law is a concept distilled from the wealth of (and mostly painful) human experience in civilisation building and thus cannot and should not be taken for granted. It legitimises the usage of law as a social ordering mechanism and empowers the very dignity of which a human being, whatever her/his condition maybe must possess in order to be truly human.
