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Comparative Perspectives on Equality The Toughest and most Tantalising of Rights

Comparative Perspectives on Equality The Toughest and most Tantalising of Rights. Kate O’Regan Judge of the Constitutional Court (1994 – 2009). Outline. Introduction The conceptual challenge outlined A brief account of the different experiences of three countries: USA India Malaysia

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Comparative Perspectives on Equality The Toughest and most Tantalising of Rights

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  1. Comparative Perspectives on EqualityThe Toughest and most Tantalising of Rights Kate O’Regan Judge of the Constitutional Court (1994 – 2009)

  2. Outline • Introduction • The conceptual challenge outlined • A brief account of the different experiences of three countries: • USA • India • Malaysia • Conclusion

  3. Equality: The challenge “Equality is not only the Leviathan of Rights; it is also a Tantalus. It promises more than it can ever deliver.” Beverley McLachlin, Chief Justice of Canada Difficult conceptually: what do we mean by equality Difficult to use comparative law, because different historical, socio-economic and historical contexts result in different approaches to equality, as well as different constitutional and legislative texts

  4. Equality: ancient but modern Although idea of equality is ancient, stretching back to Aristotle “Persons who are equal should have assigned to them equal things”, or “like should be treated alike, and unlike should be treated differently”, its use as a legal right is modern Direct reliance on equality only really developed in 20th Century

  5. Different conceptions of equality: Formal Equality I The principle of formal equality rests on the idea of equal treatment. Very powerful conception where there has been a history of unequal treatment: eg. Race, gender, sexual orientation But where patterns of inequality and exclusion run deep, equal treatment will fail to address that inequality Anatole France “ ...the majestic equality of the law which forbids the rich as well as the poor to sleep under bridges, to beg in the streets, and to steal bread.”

  6. Different conceptions of equality: Formal Equality II How do we decide when people are alike? Errors often made. Throughout 19th Century and early 20th Century, courts across the world rejected the idea that black people were alike to white people and that women were alike to men Equal Treatment is rooted in consistency, not any substantive commitment to how people should be treated: no difference between treating people equally badly and equally well. Can result in levelling down. (“Graveyard equality”) eg. Jackson Mississippi swimming pools case

  7. Different conceptions of equality: Formal Equality III Equal treatment tends to require a comparator, where patterns of disadvantage and exclusion are deep, often hard to find a comparator Equal treatment also tends to be weak on issues of intersectionality of inequality: where a person has been the subject of more than one ground of discrimination, formal equality is weak: eg. Race and gender or disability and race

  8. Different conceptions of equality: Formal Equality IV Different levels of scrutiny employed by courts in considering whether different treatment is acceptable Sometimes a weak level of scrutiny: rationality -- that the reason for the distinction drawn is related to the purpose for which it is drawn; Sometimes a higher level of scrutiny: proportionality – that purpose of differentiation must be sufficient to outweigh harmful effect of different treatment

  9. Different conceptions of equality:Substantive Equality I • Different conceptions of substantive equality: but the focus is not equal treatment, but disadvantage (thus a focus on impact or effect) • Four goals of Substantive Equality (according to Fredman): • Break cycle of disadvantage (asymmetrical); • Promote respect for dignity and worth; • Accommodate (celebrate) difference; and • Promote participation and inclusion.

  10. Different conceptions of equality:Substantive Equality II • What do we mean by disadvantage: • Material disadvantage, ie related to distributional inequality (eg. Under-representation in jobs, under-payment or unequal access to resources) • Deprivation of ability to pursue own choices and fulfill potential (AmartyaSen: capabilities theory). Need to remove obstacles to ability to pursue choices and fulfill potential.

  11. Some insights from comparative law United States of America India Malaysia

  12. Some lessons from comparative law: the USA I The USA has two key equality principles that operate across the federation: 14th Amendment; and the Civil Rights Act, most relevant for this discussion is Title VII (deals with employment) but other chapters of the Act as well. Fourteenth Amendment provides that no state shall deny to any person within its jurisdiction the equal protection of the laws. Title VII protects individuals against employment discrimination on the basis of race, colour, national origin, sex and religion.

  13. Some lessons from comparative law: the USA II Key difference in jurisprudence under Fourteenth Amendment and Title VII is that Fourteenth Amendment prohibits intentional discriminatory treatment, whereas Title VII prohibits intentional discrimination as well as practices which are “facially neutral” but have a disparate impact on certain groups where the facially neutral practice is not related to the needs of the business or employer. (Griggs v Duke Power Company401 US 424 (1971))

  14. Some lessons from comparative law: the USA III The tension between the intentional discrimination approach and the disparate impact approach was discussed in Ricci et al vDeStefano et al 129 S Ct. 268 (2009) Fire-fighters in New Haven sat a test for promotion. No African-American candidates and only 2 Hispanic candidates proved eligible (in a city where population is 60% Hispanic and African-American). New Haven withdrew test. White fire-fighters challenged.

  15. Some lessons from comparative law: the USA IV The trial court and the Second Circuit upheld lawfulness of withdrawal Supreme Court held that the City could not withdraw test unless it could show there was a “strong basis in evidence” that it would have lost a disparate impact challenge. Scalia J: court’s resolution of dispute “postpones evil day” on which Court will have to confront question whether disparate impact provisions of Title VII are consistent with Fourteenth Amendment. “The war between disparate impact and equal treatment” will be waged sooner or later.

  16. Some lessons from comparative law: the USA V Under the Fourteenth Amendment, the Court determines whether there is a rational connection between the discriminatory rule or practice and the purpose sought to be achieved by the rule or practice. In the case of racial discrimination, including affirmative action, the Court subjects the rule or practice to “strict scrutiny”. In the case of gender discrimination, to intermediate scrutiny. And in other cases to a deferential form of merits review, which merely requires some connection between means and ends.

  17. Some lessons from comparative law: the USA VI The American model of “rationality review” of discriminatory rules and practices has been widely adopted around the world as we shall see. The model of “disparate impact” informed the development of the concept of substantive equality which has been so influential in Canada and South Africa but has been less widely adopted in other parts of the world.

  18. Some lessons from comparative law: USA VII • The issue of affirmative action in US public tertiary educational institutions has found its way to the US Supreme Court on several occasions since the 1970s • Regents of the University of California vBakke438 US 265 (1978) “diversity in the classroom is a compelling state interest” • Grutterv Bollinger 539 US 306 (2003) –Univ of Michigan Law School race-conscious admissions process that favoured “under-represented minority groups” was upheld as university argued diversity was essential to its educational mission • Fisher v University of Texas 570 US – (2013) Race conscious programmes subject to strict scrutiny and university must show diversity needed for educational mission, and programmes is narrowly tailored to produce diversity

  19. Some lessons from comparative law: USA VIII Race-based affirmative action programmes in government contracting have also been the subject of litigation in the USA All three tiers of government in the USA (federal, state and local) have in varying ways introduced affirmative action criteria in procurement (both in relation to ownership of contracting companies and employment practices) The Supreme Court has consistently subjected such programmes to the strict scrutiny accorded race under the Fourteenth Amendment Adarand Constructors vPeña515 US 200 (1995)

  20. Some lessons from comparative law: India I Article 14 of Constitution: “The state shall not deny to any person equality before the laws or the equal protection of the laws ...”. Article 15 prohibits discrimination on grounds of religion, race, caste, sex or place of birth. Article 16 affirms equality of opportunity in public employment Article 17 abolishes untouchability “in any form” and articulates the goal of “transcending caste”

  21. Some lessons from comparative law: India II Article 16(4) contains a provision stating that: “Nothing ... shall prevent the State from making any provision for the reservation of appointments or posts in favour of any backward class of citizens, which in the opinion of the State, is not adequately represented in the services under the State.”

  22. Some lessons from comparative law: India III Article 29(2) provides that no-one may be denied entry to an educational institution maintained with state funds on the grounds of religion, race, caste or language. Article 15(4), which was introduced in the 1950s, provides that the State may, notwithstanding Article 29(2), make special provision for the advancement of “any socially and educationally backward classes of citizens or for the Scheduled Castes or the Scheduled Tribes”. Introduced after an early case concluded that reservation in engineering and medical colleges was not authorised by Constitution (State of Madras vChampakamDorairajanAIR 1951 SC 226)

  23. Some lessons from comparative law: India IV Article 15(5) extends the scope Article 15(4) to private educational institutions. It was introduced in 2005 and provides that the State maymake special provision for the advancement of “any socially and educationally backward classes of citizens or for the Scheduled Castes or the Scheduled Tribes insofar as such special provisions relate to their admission to educational institutions including private educational institutions ...” Provision challenged as unconstitutional in case of AK Thakurv Union of India (2007) 4 SCC 361 – court did not decide issue but upheld Article 15(4) – (reservations for Other Backward Classes in public educational institutions).

  24. Some lessons from comparative law: India V Test under Article 14 is a rational connection or “nexus” test. In Ram Krishna Dalmiav Justice SR TendolkarAIR 1958 SC 538, Supreme Court held that the question is – “whether a reasonable basis for the classification exists and its relationship to the object sought to be achieved by the law.” There has been some discussion of whether the test should become more rigorous, and include a strict scrutiny approach similar to the approach in the USA but so far such an approach has not been adopted

  25. Some lessons from comparative law: India VI Language of Article 16(4) (and to some extent 15(4)) which speaks of “socially and educationally backward classes of citizens” as well as the Schedule Castes and Scheduled Tribes has given rise to litigation In a leading case in 1990s, IndraSawhneyv Union of India AIR 1993 SC 477, court held that the reservation provisions (Article 15(5) and 16(4)) are not exceptions but articulations of a commitment to substantive equality.

  26. Some lessons from comparative law: India VII Court in IndraSawhney also endorsed use of “caste” as dominant criterion in application of Article 16(4) and as starting point for determination of backwardness under Article 15(4) The Court also introduced a 50% cap on reservations in public employment (under Article 16(4)). It has been argued that this rule reflects an asymmetric approach to caste, so caste may be used as a criterion for benign discrimination but not for invidious discrimination.

  27. Some lessons from comparative law: India VIII In IndraSawhney, too, the Court held that the reservation in public employment provided for in Article 16(4) only applied to entry-level positions and not promotion. Parliament responded by enacting Article 16(4)(a) of the Constitution to permit promotional reservations.

  28. Some lessons from comparative law: India IX The term “Other Backward Classes” used in Articles 16(4), 15(4) and(5) is vague, and it is not entirely clear how to determine whether a person is a member of such a class. Generally, Scheduled Castes and Tribes are much more easily applied and understood Development of “creamy layer” doctrine in IndraSawhney attempted to address problem of relative advantage within groups who are beneficiaries of reservations. The Court held “creamy layer” doctrine only applies to “Other Backward Classes” and not Scheduled Castes and Tribes.

  29. Some lessons from comparative law: India X Commentators note that there is a difficulty with using an immutable aspect of identity (such as caste membership) for reservations, rather than a criterion such as economic disadvantage. Risk is that it will lead to institutionalisation. Recently Congress-led government has sought to institute reservations on basis of religion, although the measure was struck down by the Andhra Pradesh High Court. Proposed quota carved out 4.5% for religious minorities in public employment and educational institutions, as a sub-quota within the 27% allocated for reservations.

  30. Some lessons from comparative law: India XI Some commentators have argued that effect of reservations has been to “solidify” rather than undermine identities like caste, and has fostered the idea of caste solidarity and undermined the project of “national citizenship”. PratapBhanu Mehta has argued that democracy in India has been based on a series of “hostile pacts” that have focussed political mobilization on access to state power, rather than on holding the exercise of state power accountable.

  31. Some lessons from comparative law: Malaysia I A population of 28 million inhabitants Ethnically and religiously diverse Ethnic Malays and natives of Sabah and Sarawak (loosely referred to as the Bumiputera) constitute 66% of population People of Chinese descent constitute 25% People of Indian descent constitute 10% 61% population adherents of Islam 20% population are Buddhist, 10% Christian and 6% Hindu.

  32. Some lessons from comparative law: Malaysia II Malaysia is a constitutional monarchy The King (Yang Di PertuanAgong) is head of government and selected every five years from amongst the hereditary rulers of the nine states of peninsular Malaysia Malaysia gained independence from Britain in 1957 and has been ruled by the same coalition ever since: Alliance Party which became BarisanNasional (National Front) – comprises UMNO, Malaysian Chinese Association and Malaysian Indian Congress (amongst others). Main opposition is the People’s Alliance.

  33. Some lessons from comparative law: Malaysia III Article 8 of Federal Constitution of Malaysia provides that all persons are equal before the law and entitled to equal protection of the law and, except as expressly authorised by the Constitution, there shall be no discrimination on the grounds of religion, race, descent, place or birth or gender in any law, or in any appointment to office or public employment. Article 8(5) provides that Article 8 does not prohibit any provision for the protection, wellbeing or advancement of the aboriginal peoples of the Malay peninsula or the reservations of a reasonable proportion of suitable positions in the public service.

  34. Some lessons from comparative law: Malaysia IV Article 153 of the Constitution provides that it shall be the responsibility of the monarch “to safeguard the special position of Malays ... and to ensure the reservation for Malays ... of such proportion as he may deem reasonable of positions in the public service .. and of scholarships, exhibitions and other similar educational or training privileges ... and when any permit or licence for the operation of any trade or business is required by federal law, then, of such permits and licences.” See also Article 89 of the Constitution which relates to land reservations for Bumiputera No similar protection for the original inhabitants, the OrangAsli.

  35. Some lessons from comparative law: Malaysia V The King can, and has, determined quotas for Bumiputera participation in land ownership, employment, both public and private sector, the grant of business licences and permits, and education (both school and tertiary). Although has roots into the colonial period, has been implemented vigorously since 1969

  36. Some lessons from comparative law: Malaysia VI The Sedition Act, 1948, provides that questioning any matter protected in Article 153 of the Federal Constitution will constitute a “seditious tendency”. Any person who commits a seditious tendency commits an offence and is liable on first offence to imprisonment for three years. There is significant contestation about how successful the Bumiputera reservations have been. Although there has been growth in the Bumiputera middle class there has allso been growth in inequality within the Bumiputera community

  37. Some lessons from comparative law: Malaysia VII Issues have become increasingly politicsed Emergence of political movement, the Coalition for Clean and Fair Elections, or, Bersih, (Malay for “clean” or “wash”) in 2007, led to Bersih 2.0 in 2011 and a mass rally Bersih 3.0 April 2012 just before most recent elections

  38. Some lessons from comparative law: Malaysia VIII Article 8 is narrow in that it contains a closed list of prohibited grounds of discrimination and a closed list of areas in which the prohibition applies. In deciding whether a law is in breach of Article 8, the Court commences with a presumption of constitutionality “stemming from the wide power of classification which the legislature must have in making laws”. (DatukHajiHarun bin HajiIdrisv Public Prosecutor [1997] 2 Mal. LJ 154 at 165-6.)

  39. Some lessons from comparative law: Malaysia IX Most of cases apply a rational connection or nexus model as in India. Most cases deal with issue of equality before law. Few cases on discrimination. See Beatrice a/p AT Fernandez vSistemPenerbangan Malaysia and Another 2005 (3) MLJ 681 (FC). Collective agreement between airline and union provided that pregnant air stewardesses would resign or else be dismissed. Air stewardess challenged her dismissal unsuccessfully. Court held no contravention because an aeroplane is not a “conducive place for pregant women to be.”

  40. Some lessons from comparative law: Malaysia X Very little jurisprudence on Article 153. May well be because of the effective prohibition of “discussion” or challenge to Article 153 in Sedition Act. Ongoing use of Article 153 to protect the Bumiputera became an issue in most recent election in Malaysia and ruling coalition indicated that it was considering a reduction in the extent of reservations for Bumiputera. Just in the last week, however, the coalition government has indicated it is unlikely to implement this election promise.

  41. Concluding remarks Difficult to measure how successful equality laws are What is clear is that deep patterns of social and economic disadvantage are persistent Moreover, it is also clear that programmes of “affirmative action” or “reservations” often do not reach deep into the most disadvantaged people High levels of political contestation and litigation (with exception of Malaysia) Tantalus

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