Constitutional equality and executive action – a comparative perspective to the comparator problem

Abstract

AbstractA 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.