Four models of equality in Common Law Asia

Abstract

Almost every modern constitution contains a general equal protection clause that seeks to guard against arbitrary or discriminatory state practices. In most western democracies, this constitutional guarantee of equality is judicially understood to embody a substantive ideal - courts are required to identify prima facie prohibited bases of legislative differentiations and where they do exist, the onus is on the government to demonstrate how these differentiations are justifiable. Unfortunately, within common law Asia, many territorial courts do not uphold this substantive model of equality. Neither are they homogenous nor consistent in upholding a particular model of equality. In fact, a survey of the constitutional practices of Malaysia, Singapore and Hong Kong reveals four judicial approaches to equality. First, we may observe a formal model of equality where the courts merely require equal treatment for all persons who are situated within the same legislative category. This is merely a principle for consistency. Second, a corollary of the formal principle, we may find the rational connection model. This model provides that a statutory provision would be deemed arbitrary if the legislative distinctions do not have a rational connection to the object sought to be achieved by the law in question. Third, the “forbidden personal characteristics” model is in essence the substantive model of equality commonly applied in the West – courts seek to identify prima facie forbidden grounds of statutory differentiations based on an individual’s personal traits (i.e. personal characteristics for which individuals have been historically subjected to stereotype and/or prejudice) that requires State justification. Finally, the “fundamental rights” model of equality assumes that all legislative differentiations that affect an individual’s exercise of her fundamental rights are prima facie discriminatory unless justified. In this Paper, I shall argue that the the “forbidden personal characteristics” model of equality serves as the only logical and meaningful constitutional standard of equality for courts in these Asian jurisdictions to apply.