The relevance of purpose in constitutional equal protection challenges to executive action

• Main Author: CHNG, Wei Yao, Kenny
• Format: text
• Language: English
• Published: Institutional Knowledge at Singapore Management University 2022
• Subjects: Equal protection; Executive action; Hong Kong; Judicial review; Singapore; Comparative and Foreign Law; Public Law and Legal Theory
• Online Access: https://ink.library.smu.edu.sg/sol_research/4037; https://ink.library.smu.edu.sg/context/sol_research/article/5995/viewcontent/The_relevance_of_purpose_in_constitutional_equal_protection_challenges_to_executive_action.pdf
• Institution: Singapore Management University

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.