Publication Type

Journal Article

Version

publishedVersion

Publication Date

7-2022

Abstract

Written constitutions often include generalized guarantees of equal protection which imply a proscription on unconstitutional differential treatment. This paper will examine what the analytical focus ought to be when evaluating challenges to executive action based on such rights, a particularly relevant issue given recent developments in Hong Kong’s and Singapore’s equal protection jurisprudence. These developments suggest that there are three possible analytical focal points, each of which takes a different perspective on the relevance of the executive’s purpose in utilizing differential treatment: (1) the connection between the chosen differentiation and the specific purpose of the challenged executive action; (2) the connection between the differentiation and the broad purpose for which power was conferred upon the authority to perform the challenged action; and (3) a generalized assessment of the action’s rationality independent of purpose. This paper will critically evaluate each of these possibilities. It will argue that a specific purpose approach (namely (1)) is to be preferred, and that such an approach should be substantiated through a structured proportionality framework. © 2022 School of Law, City University of Hong Kong.

Keywords

Equal protection, Executive action, Hong Kong, Judicial review, Singapore

Discipline

Comparative and Foreign Law | Public Law and Legal Theory

Research Areas

Public Law

Publication

Asia Pacific Law Review

Volume

30

Issue

2

First Page

203

Last Page

220

ISSN

1019-2557

Identifier

10.1080/10192557.2022.2073708

Publisher

City University of Hong Kong

Additional URL

https://doi.org/10.1080/10192557.2022.2073708

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