Transcript SASLAW Equality

Outline
 Introduction
 The conceptual challenge outlined
 A brief account of the different experiences of three
countries:
 USA
 India
 Malaysia
 Conclusion
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
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
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.”
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
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
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
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.
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, underpayment or unequal access to resources)
 Deprivation of ability to pursue own choices and fulfill
potential (Amartya Sen: capabilities theory). Need to
remove obstacles to ability to pursue choices and fulfill
potential.
Some insights from comparative
law
United States of America
India
Malaysia
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.
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 Company 401 US 424 (1971))
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 v DeStefano 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.
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.
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.
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.
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 v Bakke 438 US 265 (1978)
“diversity in the classroom is a compelling state interest”
 Grutter v Bollinger 539 US 306 (2003) – Univ of Michigan Law
School race-conscious admissions process that favoured “underrepresented 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
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 v Peña 515 US 200 (1995)
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”
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.”
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 v Champakam Dorairajan AIR
1951 SC 226)
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 may make 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
Thakur v 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).
Some lessons from comparative
law: India V
 Test under Article 14 is a rational connection or “nexus”
test. In Ram Krishna Dalmia v Justice SR Tendolkar AIR 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
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, Indra Sawhney v 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.
Some lessons from comparative
law: India VII
 Court in Indra Sawhney 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.
Some lessons from comparative
law: India VIII
 In Indra Sawhney, 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.
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 Indra Sawhney
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.
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.
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”.
 Pratap Bhanu 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.
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.
Some lessons from comparative
law: Malaysia II
 Malaysia is a constitutional monarchy
 The King (Yang Di Pertuan Agong) 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 Barisan Nasional (National Front) –
comprises UMNO, Malaysian Chinese Association and
Malaysian Indian Congress (amongst others). Main
opposition is the People’s Alliance.
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.
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 Orang Asli.
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
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
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
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”. (Datuk Haji Harun bin Haji Idris v Public
Prosecutor [1997] 2 Mal. LJ 154 at 165-6.)
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 v
Sistem Penerbangan 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.”
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.
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