The relevance of purpose in constitutional equal protection challenges to executive action. Issue 2 (3rd July 2022)

• Record Type: Journal Article
• Authors: Chng, Kenny
• Is Part Of: Asia Pacific law review. Volume 30:Issue 2(2022)
• Page Start: 203
• Page End: 220
• Publication Date: 2022-07-03
• Subjects: Equal protection -- executive action -- judicial review -- Hong Kong -- Singapore; Law -- Asia -- Periodicals; Law -- Oceania -- Periodicals; Law; Asia; Oceania; Recht; Periodicals; Electronic journals; 349.5
• DOI: 10.1080/10192557.2022.2073708
• Languages: English
• ISSNs: 1019-2557

Abstract

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.