No CrossRef data available.
Article contents
Constitutional equality and executive action – a comparative perspective to the comparator problem
Published online by Cambridge University Press: 16 September 2022
Abstract
A general right to equality is a common feature of written constitutions around the world. Interesting questions arise when one seeks to apply such rights to discrete executive acts. The subject of such acts has necessarily been singled out from a multitude of possibilities for the purposes of the act. To determine whether a differentiation has occurred such that like cases have not been treated alike, to what or whom should this subject be compared? The question of how one selects the proper comparator becomes especially significant when one notes that whether the equal protection guarantee is triggered at all depends on the answer to this question. This paper will study how courts in Hong Kong and Singapore have addressed these difficulties. It argues that three categories of approaches can be discerned in these jurisdictions: class-focused, policy-focused, and justification-focused approaches. It critically evaluates each approach, argues in favour of a justification-focused approach to constitutional equal protection in the context of discrete executive acts, and explores the implications of such an approach for the proper relationship between constitutional equality and administrative law.
- Type
- Research Article
- Information
- Copyright
- Copyright © The Author(s), 2022. Published by Cambridge University Press on behalf of The Society of Legal Scholars
Footnotes
†
Assistant Professor, Yong Pung How School of Law, Singapore Management University, Singapore. The author is deeply grateful to Professor David S Law, School of Law, University of Virginia, Professor Kevin YL Tan, Faculty of Law, National University of Singapore, Professor Kim Lane Scheppele, Princeton School of Public and International Affairs, Princeton University, Professor Niels Petersen, University of Münster, Associate Professor Cora Chan, Faculty of Law, University of Hong Kong, as well as the anonymous reviewers for their invaluable comments and advice on earlier drafts of this paper. The author is also grateful to the organisers and participants of the IACL-AIDC Junior Scholars Forum 2021, ICON-S Conference 2021, and the Society of Legal Scholars Conference 2021 for the opportunity to present earlier drafts of this paper and for the helpful comments. All mistakes and omissions remain the author's own.
References
1 Art 12(1) and 12(2) of the Constitution of the Republic of Singapore are examples of both types of rights respectively. Art 12(1): ‘All persons are equal before the law and entitled to the equal protection of the law’; Art 12(2): ‘Except as expressly authorised by this Constitution, there shall be no discrimination against citizens of Singapore on the ground only of religion, race, descent 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’.
2 See, for example, Williams, B Problems of the Self: Philosophical Papers 1956–1972 (Cambridge: Cambridge University Press 1973) p 230CrossRefGoogle Scholar.
3 See, for example, Allan, TRS ‘The rule of law as the rule of reason: consent and constitutionalism’ (1999) 115 (Apr) Law Quarterly Review 221Google Scholar. See also Westen, P ‘The empty idea of equality’ (1982) 95(3) Harvard Law Review 537CrossRefGoogle Scholar; Allan, TRS Constitutional Justice: A Liberal Theory of The Rule of Law (Oxford: Oxford University Press, 2005)Google Scholar; Allan, TRS The Sovereignty of Law: Freedom, Constitution, and Common Law (Oxford: Oxford University Press, 2013)CrossRefGoogle Scholar.
4 For example, Art 25 of the Hong Kong Basic Law, Art 12 of the Constitution of the Republic of Singapore, and s 15 of the Canadian Charter of Rights and Freedoms.
5 Petersen, N ‘The implicit taxonomy of the equality jurisprudence of the UN Human Rights Committee’ (2021) 34(2) Leiden Journal of International Law 421 at 422–423CrossRefGoogle Scholar; Fiss, OM ‘Groups and the equal protection clause’ (1976) 5(2) Philosophy & Public Affairs 107Google Scholar.
6 See, for example, Lim Meng Suang v Attorney-General [2015] 1 SLR 26 at [68]; Seidman, LM Constitutional Law: Equal Protection of the Laws (Foundation Press, 2003) p 5Google Scholar.
7 Jowell, J ‘Is equality a constitutional principle?’ (1994) 47(2) Current Legal Problems 1 at 7CrossRefGoogle Scholar.
8 Allan (1999), above n 3, at 231–232.
9 Lurie, G ‘Proportionality and the right to equality’ (2020) 21 German Law Journal 174 at 179CrossRefGoogle Scholar.
10 Seidman, above n 6, p 8.
11 Petersen, above n 5, at 422–423; Fiss, above n 5; Eisen, J ‘Grounding equality in social relations: suspect classification, analogous grounds and relational theory’ (2017) 42 Queen's Law Journal 41 at 89–90Google Scholar.
12 US Supreme Court jurisprudence articulating suspect classifications for the purposes of Fourteenth Amendment analysis is one example: see, for example, Korematsu v United States 323 US 214 (1944) and Nguyen v Immigration and Naturalization Service 533 US 53 (2001).
13 See, for example, Art 12(2) of the Constitution of the Republic of Singapore.
14 See, for example, Petersen, above n 5, at 423–424; Sunstein, CR ‘The anticaste principle’ (1994) 92(8) Michigan Law Review 2410CrossRefGoogle Scholar; Khaitan, T A Theory of Discrimination Law (Oxford: Oxford University Press, 2015)CrossRefGoogle Scholar.
15 Khaitan, above n 14, p 50.
16 This is not to say, however, that a general right to equality cannot be effectuated through equality as impermissible differentiation: see, for example, Korematsu v United States 323 US 214 (1944) and Nguyen v Immigration and Naturalization Service 533 US 53 (2001); R Singh ‘Equality: the neglected virtue’ (2004) 2 European Human Rights Law Review 141 at 147.
17 JL Neo ‘Equal protection and the reasonable classification test in Singapore: after Lim Meng Suang v Attorney-General’ (2016) (Mar) Singapore Journal of Legal Studies 95 at 95.
18 Westen, above n 3, at 540–545; Neo, above n 17, at 96–97.
19 Aronson, M et al. Judicial Review of Administrative Action and Government Liability (Thomson Reuters, 2017) p 383Google Scholar.
20 Syed Suhail bin Syed Zin v Attorney-General [2021] 5 SLR 452.
21 Ibid, at [35], [58].
22 It is worth noting, however, that the argument made in this paper does not necessarily require accepting the comparator intended by the executive. What it does require is for the intent of the differentiation to be taken into account in an assessment of the differentiation's justifiability – this will be elaborated upon in Part 2(c).
23 Hong Kong Basic Law, Art 25: ‘All Hong Kong residents shall be equal before the law’; Hong Kong Bill of Rights Ordinance, Art 1(2): ‘Men and women shall have an equal right to the enjoyment of all civil and political rights set forth in this Bill of Rights’.
24 Art 11 of the Hong Kong Basic Law; section 7 of the Hong Kong Bill of Rights Ordinance; Ng Ka Ling v Director of Immigration [1999] 1 HKLRD 315 [61]; QC, R Gordon and Mok, J SC Judicial Review in Hong Kong (LexisNexis, 2014) pp 160, 178Google Scholar.
25 Gordon and Mok, above n 24, p 181.
26 Gordon and Mok, above n 24, p 182.
27 Ibid, p 253.
28 Secretary for Justice v Yau Yuk Lung [2007] 3 HKLRD 903 at [19].
29 Ibid, at [20]; Gordon and Mok, above n 24, p 566; Cooray, A Constitutional Law in Hong Kong (Walters Kluwer, 2nd edn, 2017) p 234Google Scholar.
30 Fok Chun Wa v Hospital Authority [2012] HKEC 471 at [75]; Gordon and Mok, above n 24, p 215.
31 Fok Chun Wa v Hospital Authority [2012] HKEC 471 at [75].
32 Gordon and Mok, above n 24, p 213.
33 Fok Chun Wa v Hospital Authority [2008] HKCFI 1143; Fok Chun Wa v Hospital Authority [2010] HKCA 136.
34 Fok Chun Wa v Hospital Authority [2008] HKCFI 1143 at [94]; Fok Chun Wa v Hospital Authority [2010] HKCA 136 at [57]; see also Gordon and Mok, above n 24, p 214.
35 Fok Chun Wa v Hospital Authority [2010] HKCA 136 at [75].
36 Ibid, at [77].
37 Fok Chun Wa v Hospital Authority [2010] HKCA 136 at [77].
38 See also Dembele Salifou v Director of Immigration [2016] HKEC 922 at [58]–[63]; Choi King Fung v Hong Kong Housing Authority [2017] HKEC 549 at [106]; Infinger v Hong Kong Housing Authority [2020] 1 HKLRD 1188.
39 Art 12 of the Constitution of the Republic of Singapore.
40 Chng Suan Tze v Minister for Home Affairs [1988] 2 SLR(R) 525 at [86]; Colin Chan v Public Prosecutor [1994] 3 SLR(R) 209 at [50]; CS Keong ‘The courts and the “rule of law” in Singapore’ (2009) (Dec) Singapore Journal of Legal Studies 209 at 216.
41 Syed Suhail bin Syed Zin v Attorney-General [2021] 1 SLR 809.
42 Ibid, at [57].
43 Ibid, at [61]–[62].
44 Ibid.
45 Ibid, at [61].
46 The authoritative articulation of the reasonable classification test is set out in Lim Meng Suang v Attorney-General [2015] 1 SLR 26. The Singapore Court of Appeal in Tan Seng Kee v Attorney-General [2022] SGCA 16 at [300]–[329] has recently considered the relationship between Lim Meng Suang v Attorney-General and Syed Suhail bin Syed Zin v Attorney-General, but refrained from making a conclusive decision on this issue.
47 Syed Suhail bin Syed Zin v Attorney-General [2021] 1 SLR 809 at [77].
48 Ibid, at [35], [58].
49 QT v Director of Immigration [2017] HKCA 489.
50 Ibid, at [14].
51 Ibid.
52 Ibid, at [15].
53 Ibid, at [17]–[18].
54 Ibid, at [23]–[28].
55 Ibid, at [29]–[31].
56 Ibid, at [32]–[34].
57 Fok Chun Wa v Hospital Authority [2012] HKEC 471.
58 Ibid, at [57].
59 Ibid, at [58].
60 R (Carson) v Secretary of State for Works and Pensions [2006] 1 AC 173 at [31].
61 Fok Chun Wa v Hospital Authority [2012] HKEC 471 at [58].
62 Ibid, at [59].
63 Ibid, at [83].
64 Ibid, at [61].
65 Ibid, at [90]. The concept of a margin of appreciation applied here is a judicial creation in Hong Kong and can be characterised as an expression of judicial deference for reasons of institutional competence.
66 Ibid, at [90].
67 QT v Director of Immigration [2018] HKEC 1792.
68 Ibid, at [38].
69 Ibid, at [42].
70 Ibid, at [45].
71 Ibid, at [81].
72 Ibid, at [83].
73 See also Leung Chun Kwong v Secretary for Civil Service [2019] HKEC 1765 at [32]–[45].
74 Jowell, above n 7; C McCrudden ‘Equality and non-discrimination’ in D Feldman (ed) English Public Law (Oxford: Oxford University Press, 2004) p 605.
75 Mandalia v Secretary of State for the Home Department [2015] UKSC 59 at [29]–[31]; Craig, P Administrative Law (London: Sweet & Maxwell, 8th edn, 2016) pp 688–689Google Scholar.
76 Mandalia v Secretary of State for the Home Department [2015] UKSC 59 at [29]–[31]; Walumba Lumba (Congo) 1 and 2 v Secretary of State for the Home Department [2011] UKSC 12 at [35]. Note, however, R (on the application of Gallaher Group Ltd) v Competition and Markets Authority [2019] AC 96 at [24], which casts some doubt on such a doctrine of judicial review.
77 Elliott, M ‘Legitimate expectations: procedure, substance, policy and proportionality’ (2006) 65 Cambridge Law Journal 254 at 254–255CrossRefGoogle Scholar; Varuhas, JNE ‘In search of a doctrine: mapping the law of legitimate expectations’ in Groves, M and Weeks, G (eds) Legitimate Expectations in the Common Law World (Oxford: Hart Publishing, 2017) pp 29–30Google Scholar; Forsyth, C ‘Legitimate expectations revisited’ (2011) 16 Judicial Review 429 at 433CrossRefGoogle Scholar.
78 Allan, TRS ‘The constitutional foundations of judicial review: conceptual conundrum or interpretative inquiry?’ (2002) 61(1) Cambridge Law Journal 87CrossRefGoogle Scholar; Elliott, M The Constitutional Foundations of Judicial Review (North America: Hart Publishing, 2001)Google Scholar; Craig, P ‘Ultra vires and the foundations of judicial review’ (1998) 57 Cambridge Law Journal 63CrossRefGoogle Scholar.
79 Law Society of British Columbia v Trinity Western University [2018] 2 SCR 293.
80 Ibid, at [186].
81 Ibid, at [189].
82 Ibid; see also Chan, C ‘A preliminary framework for measuring deference in rights reasoning’ (2016) 14(4) International Journal of Constitutional Law 851 at 851CrossRefGoogle Scholar.
83 Law Society of British Columbia v Trinity Western University [2018] 2 SCR 293 at [193].
84 Syed Suhail bin Syed Zin v Attorney-General [2021] 1 SLR 809 at [57].
85 Williams, above n 2, p 230; Westen, above n 3.
86 Lurie, above n 9.
87 See QT v Director of Immigration [2018] HKEC 1792, however, for evidence of some conflation between the standard of review adopted for administrative law challenges and for challenges based on constitutional equal protection.
88 See M Teo ‘A case for proportionality review in Singaporean constitutional adjudication’ (2021) Singapore Journal of Legal Studies 174 for an argument in favour of proportionality review in Singapore.
89 Eberts, M and Stanton, K ‘The disappearance of the four equality rights and systemic discrimination from Canadian equality jurisprudence’ (2018) 38 National Journal of Constitutional Law 89 at 119Google Scholar.