In 1776 the American Declaration of Independence stated as an evident truth that ‘all men are created equal’. In 1789 the French Revolution proclaimed in the Declaration of the Rights of Man and of the Citizen that ‘[m]en are born and remain free and equal in rights’. Since then, equality has been a fundamental principle of constitutionalism. Paradoxically, equality is at the same time the most generally accepted principle and a highly controversial one.
There is general agreement that all humans are endowed with the same basic human rights and dignity. Differentiation of rights, and especially political rights, is therefore no longer considered acceptable—yet it took some time to reach this consensus. Women, for example, were excluded from political participation for a long time after the revolutionary declarations of the late eighteenth century. Indeed, Olympe de Gouges went to the guillotine for demanding equal rights for women during the French Revolution. And, although some Western states of the United States, New Zealand, Australia, and Scandinavia initiated female suffrage in the late nineteenth century, it was only in the twentieth century that women were generally enfranchised, with Switzerland as a latecomer among democratic republics in 1971. Similarly, both French and American revolutionaries condoned slavery despite their universal rights rhetoric, and it was only with the demise of the South African apartheid system in 1994 that race disappeared as a means to exclude people from the enjoyment of equal political status.
Today, in constitutionalist democracies, there is general agreement that all citizens enjoy equal political rights, and that all men and women enjoy human rights equally. But beyond that general consensus, controversy starts. The question to what extent the state should further equality is hotly disputed. While egalitarians favour public action to reduce inequalities, libertarians deny the state any right to interfere with an unequal distribution of resources brought about by market forces, and many shades of opinion exist between these positions. There is also political dispute as to whether public action should address only equality of opportunity or also of outcome, and whether it should aim at ensuring adequate basic living conditions for all or include redistribution of resources.1 These differences are legitimate subjects for political debate and constitutional texts that guarantee equality do not solve them. But in many countries, constitutional guarantees help to frame the debate.
In the eighteenth and nineteenth centuries, the demand for equality was a revolutionary one directed against existing laws that treated people differently according to their social status or religion. Once the aim of an equal political status of all male citizens was in principle— though not in practice, and with notable exceptions—reached, the constitutional tenet of equality changed focus. Equality became regularly equated with the rule of law and asked administration and courts for the equal application of the law. In principle, it was not directed against the lawmaker. The fact that general laws applied to everybody and were the product of parliaments elected by the empowered body politic was generally considered an adequate protection of equality. In other words, the constitutional equality principle guaranteed equality before the law but not equal protection under the law.
The guarantee of an equal application of the law remains an important aspect of constitutional equality provisions (see below) but increasingly the control of the lawmaker itself has become the main constitutional issue. This shift was of course possible only after judicial review of legislative action spread around the constitutional world. Starting in the United States and increasingly, especially after World War II, in other countries, the lawmaker came under scrutiny as to whether its products met constitutional equality standards. In many constitutional democracies today, an equal protection clause is in practice one of the most important vehicles for judicial review.
The concepts of equal protection under law and non-discrimination are closely related. Jurisprudentially, however, they approach equality questions from very different angles. Discrimination is, in principle, forbidden and can be justified only under exceptional circumstances, if at all. The programme for scrutiny of legal provisions runs parallel to that of freedom rights—a law that discriminates with reference to a suspect distinction is prima facie forbidden and needs justification.
A general claim for equal treatment meets with much more difficulty. It is by nature vague and open-ended. Every law by necessity treats those cases it covers differently from those it does not. In the words of Ralf Dahrendorf: ‘all men are equal before the law but they are no longer equal after it’ (Dahrendorf, 169–70). Therefore, a general constitutional guarantee of equal protection can become a powerful tool for judicial control of the lawmaker in the hands of an activist court. Notably, courts that use it extensively are regularly accused of overstep-ping into the competence of the democratic lawmaker.2
Despite diverse approaches to apprehending equality and non-discrimination, three basic models dominate the domestic constitutional landscape: (1) constitutions containing only general equality provisions; (2) constitutions with only non-discrimination provisions; and (3) constitutions with general equality provisions and either general discrimination prohibitions or discrimination prohibitions on the basis of particular characteristics.3 We note, however, that while these frameworks provide a useful heuristic method for describing constitutional approaches to equality discrimination, the lines drawn are not always as distinct as presented herein.
Equality provisions like those contained in the Italian Constitution (‘All citizens have equal social status and are equal before the law, without regard to their sex, race, language, religion, political opinions, and personal or social conditions’)4 and the very similar one in Canada (‘Every individual is equal before and under the law and has the right to the equal protection and equal benefit of the law without discrimination … based on race, national or ethnic origin, colour, religion, sex, age, or mental or physical disability’)5 provide a good illustration. Semantically, they can be understood as mere prohibitions of discrimination. This is the case in Canada where the Canadian Supreme Court limits equal protection to ‘discrete and insular minorities’ who have suffered disadvantage due to a ‘personal characteristic’.6 In Italy, on the other hand, in addition to the discrimination accorded to specific characteristics, the provision has been interpreted as a general equality rule on the basis of which the rationality of laws is scrutinized (Groppi, 11).
Furthermore, these different textual solutions do not necessarily lead to the same consequences. A general equal protection provision might be construed narrowly so that it covers only cases that are treated as non-discrimination, and narrowly worded non-discrimination provisions can be extended by analogy.
One model of constitutional protection is a general equal protection provision, which must then be interpreted and applied by courts. Countries with such provisions include Argentina,7 Brazil,8 China,9 Greece,10 Luxembourg,11 Morocco,12 and Vietnam.13
A well-known example arises under the US Constitution, which provides a general equal protection mandate that is in turn juridically differentiated into sub-sections, ranging from rational basis to strict scrutiny. The Fourteenth Amendment to the Constitution, adopted in 1868 to effectuate the abolition of slavery, prohibited American states from abridging ‘privileges or immunities’ of US citizens, depriving any person of life, liberty, or property without due process of law, and from denying ‘any person within its jurisdiction the equal protection of the laws’. Traditionally, courts employ a rationality test under equal protection review. That test will uphold governmental action if any differential treatment could rationally be conceived to serve legitimate state interest. However, when the state employs a suspect classification (e.g., race or ethnicity) or creates distinctions in fundamental rights (such as voting or freedom of expression) those actions are subject to strict scrutiny. In that event, courts will uphold only government actions employing classifications that can be demonstrated as necessary for achieving a compelling state interest. An intermediate standard of review applies to gender-based claims where government classifications will only be upheld if they both serve an important state objective and are substantially related to achieving those objectives. This approach has been influential not only in countries that follow this model but also in those that combine a general equal protection clause with specific non-discrimination provisions.
In France, a general equality rule has for a long time been recognized as a general principle of law by the Conseil d’État in administrative law. However, it was not until 1971, when the Conseil Constitutionnel recognized the Declaration of the Rights of Man and of the Citizen of 1789 as a standard for judicial review, that the equality principle contained in Article 6 of the Declaration gained a constitutional status.14 Generally, the Conseil will accept any rational justification for different treatment.15
Some countries do not have a general equality clause but instead feature protection against discrimination or specific cases of unequal treatment.16 The Constitutions of Denmark and Norway, for example, restrict themselves to outlawing differential treatment that was historically important.17 This does not force the conclusion that equality is not a constitutional value. Notably, the first case of judicial review in Denmark—the famous Tvind case— addressed the denial of legal benefits for private schools to one specifically named school, with the High Court deducing the unconstitutionality of this practice from the separation-of-powers principle.18
General prohibitions of discrimination lead to very much the same questions as are seen with general equal protection clauses: they require a differentiated approach to different classes of discrimination cases (see Chapters 23 and 24).
Since the advent of World War II, a third model has increasingly become prevalent in constitutional protection. This scheme combines a general equal protection mandate with either a general non-discrimination prohibition or a discrimination proscription against enumerated classes of individuals.
Relatively few countries bolster a general equality provision with a general non-discrimination clause. These include Afghanistan,19 Belarus,20 Belgium,21 Costa Rica,22 Latvia,23 Lebanon,24 Paraguay,25 Poland,26 and Romania.27 Much more common are countries that combine a general equality clause with identity-specific non-discrimination protection. These include Albania,28 Algeria,29 Bahrain,30 Bulgaria,31 Canada,32 Eritrea,33 Estonia,34 Germany,35 Iraq,36 Kenya,37 Lithuania,38 Madagascar,39 Namibia,40 Nepal,41 Netherlands,42 Oman,43 Qatar,44 Serbia,45 South Korea,46 Switzerland,47 Turkey,48 and Timor Leste.49
The reasons for the popularity of this model are similar to those informing the development of case law in which courts differentiate between different levels of scrutiny for a general equal protection clause and a general non-discrimination clause; namely, that some forms of unequal treatment have historically been more egregious than others and therefore require closer scrutiny. Within countries that have only a general equal protection clause, the task of differentiating within identity classifications falls to judges while in this model the differentiation is already decreed by the constitution itself.
That this model has become more widespread after World War II has its main reason in increased sensibility regarding discrimination, especially in the fields of race relations and gender. In Germany, which introduced this scheme in advance of most countries, in 1949, the history of prosecution of under Nazi dictatorship was obviously influential.50 The newly minted Federal Republic acted to replace the general equality provision of the last democratic regime, the Weimar Republic,51 with a differentiated system in which a general equality provision that proclaims ‘[a]ll humans are equal before the law’52 is followed by a extensive list of forbidden discriminations arising from a person’s ‘sex, parentage, race, language, home-land and origin, his faith, or his religious or political opinions’.53
A second reason for the popularity of the general equality plus non-discrimination model, especially in newer constitutions, is international law. Four human rights conventions—the Convention on the Elimination of All Forms of Racial Discrimination,54 the Convention on the Elimination of All Forms of Discrimination against Women,55 the International Convention on the Protection of the Rights of All Migrant Workers and Members of their Families,56 and the Convention on the Rights of Persons with Disabilities57 —specifically address discrimination against vulnerable persons and groups. General human rights conventions also outlaw discrimination.58 International human rights law increasingly influences the drafting of constitutions (Bryde, s 191 ff). Therefore it appears natural that when countries draft constitutions they will insert a general equality clause and also highlight those discriminations that are under international opprobrium (id). In the constitutional reform of Switzerland, to note one such example, the constitution drafters explicitly give concordance with the international obligations as the main reason for bolstering the general equality rule with non-discrimination provisions.59 In Europe, the influence of European Union law is also important. With articles 19 TFEU and 21 ChHREU, the European Union has the internationally most comprehensive catalogue of forbidden distinctions.60
The relationship between a constitution’s general equal protection clause and its specific non-discrimination provisions presents a central question for comparative analysis. Significantly, the Turkish Constitution itself draws a clear distinction between the legal reach of the prohibition of discrimination and the general equality rule contained in Article 10.61 While the prohibition of discrimination binds all branches of government, the general order to treat people equally applies only to the administrative application of laws and is therefore of special importance for the exercise of administrative discretion.62 However, most countries that provide both general equality and non-discrimination provisions also bind the legislature, which makes it necessary to clarify the relationship between these two different approaches to equality (see Chapter 30).
In countries that have only a general equal protection provision, case law regularly tends to be developed (as is the case of the United States, above) that creates different standards of scrutiny for different classes of unequal treatment. In countries that combine a general equal protection clause with a prohibition of enumerated discriminations, this task is not left to the courts but in principle undertaken by the constitution itself. One might expect that under such a model the need for a differentiated system of different standards or tests in the framework of the general equality provision does not arise because the constitution has enumerated those classifications that require strict scrutiny and all other equality problems could be treated under a liberal standard allowing for judicial restraint. But this is not necessarily the case. General equal protection clauses are generally vague and cover many different situations such that even where the constitution has regulated some situations specifically, there may still be a need for a differentiated approach.
In Germany, both approaches have been adopted by the Federal Constitutional Court at different times. In the first decades of the Federal Republic, the non-discrimination provisions of Article 3 II and III, especially with relation to gender, and Article 6 V, relating to children born out of wedlock, came to be applied more and more strictly (Currie, 322; Baer, 262). By contrast, under the general equality clause of Article 3 I, lawmakers enjoyed great discretion: only unequal treatment that had no sensible reason at all and was therefore deemed to be arbitrary (willkürlich) was forbidden.63 In a way—and this appears indeed as one possible (‘originalist’) interpretation of a constitution combining a general equality clause with a heightened protection of specific vulnerable groups—an argumentum e contrario was used in which only those interests the constitution itself defined in need of special protection enjoyed such protection.
Increasingly, the Federal Constitutional Court came to recognize that in the huge field of equality claims not covered by specific non-discrimination prohibitions, there was need for differentiation. In response, it developed a system of different tests for different equality problems within the framework of the general equality rule similar to those used by countries that have only a general equality rule. Today it explicitly holds that the general equality clause is used with different standards, from mere capriciousness to a strict proportionality test similar to the one used for non-discrimination provisions.64 This is especially true for vulnerable groups in a similar condition to those protected by explicit provisions (e.g., transsexuals, sexual orientation), in which case the Court applies a similar standard of strict scrutiny.65 Stricter scrutiny is also applied if the distinction employed by the lawmaker affects the enjoyment of other fundamental rights.66
In contrast, Canada has taken a single approach toward judicial interpretation of equal protection. When applying the Constitution, and especially Part 1 containing the Canadian Charter of Rights and Freedom, which was designed to protect citizens from illicit government action, the Canadian Supreme Court limits equal protection to ‘discrete and insular minorities’ who have suffered disadvantage due to a ‘personal characteristic’. Thus, gender and race are examined under the same standard. At the same time, there is some evidence that an increasingly strict application of a general equality rule is not uncommon. For example, the jurisprudence of the Indian Supreme Court has applied Article 14 of the Constitution as a judicial tool against all forms of unreasonable policies (Jain, 929).
This new approach, too, can be generalized, as a possible model for countries with a combination of general equality rule and specific non-discrimination rules, where the latter are not used as an argumentum e contrario but rather as an inspiration. This may be particularly true in countries where disability is identified as either a protected group in constitutional texts67 or, inter alia, in those countries where ratification of the Convention on the Rights of Persons with Disabilities incorporates the treaty into domestic jurisprudence. (Ecuador is one such example.68) People/Persons with disabilities, perhaps more so than other vulnerable population groups, forces a closer examination of the linkage between equality and non-discrimination (Stein), or put another way, the necessity of equality measures to make meaningful prohibitions on discriminatory conduct (Stein & Stein, 1209). This is due to the historic socio-economic exclusion of the group, as noted by the Committee on Economic and Social Rights,69 as well as the historic inattention to disability in international human rights law and attendant national-level protection, as noted by the Office of the United Nations High Commissioner on Human Rights (Quinn, 23).
By the same token, recent attention to disability as a protected group creates prospects for creative jurisprudence utilizing social rights to leverage non-discrimination mandates (Stein & Lord). This can be seen clearly in the realm of employment, where bans on discrimination against disabled persons yield little results without concurrent equity measures such as vocational training, jobs set-asides, or affirmative action. More challenging issues involve the balancing of equality and redistribution when courts are asked to draw lines between the right of disabled persons not to be involuntarily institutionalized into social-care settings against their right to live in the community,70 or to delineate the scope of state obligations for facilitating the legal capacity of persons with disabilities to vote, even as those courts overturn state disenfranchisement based on disability status.71 Recently, the European Court of Human Rights evaded resolving either of those issues72 presumably in deference to state constitutional or high courts. Hence, an opportunity exists for creative jurisprudence.
Amongst the various countries whose constitutions contain general equality clauses along with non-discrimination prohibitions for specific vulnerable population groups, South Africa’s jurisprudence is especially opportune for precipitating integration of equality and equity measures on behalf of persons with disabilities.73 This is due to the convergence of the self-avowed character of the South African Constitutional Court as progressive in the general field of social rights where it utilizes dignity to lever state obligations, the potential of the UN Conventions on the Rights of Persons with Disabilities, which South Africa has ratified, and the transformative imperative contained in its Constitution.74 Given the impoverished situation of persons with disabilities in South Africa relative to the non-disabled population, one could well imagine the Constitutional Court not only banning exclusion in terms of access to public accommodations (including court buildings), but likewise requiring the provision of health care, clean water and sanitation, and government-sponsored employment as a means of ensuring social integration.
In the political and philosophical discussion about the principle of equality, the distribution of resources and the equality of living conditions take a prominent role.75 In constitutional law, the question to what extent the state is constitutionally obliged to provide people with basic, comparable, or even equal living conditions is regularly treated not as a subject of general equality provisions but is instead referred to as specific guarantees of social rights or general social justice principles. Nevertheless, equality and social rights are closely related. In constitutional practice, equality provisions have an important role in controlling social security and welfare regulations. Even though the state is generally considered to have great discretion in how generous it is in advancing social benefits, once it has decided to do so it has to respect equality in distributing benefits (see Chapter 29).
This discretionary dynamic is most obvious for the treatment of groups protected by specific non-discrimination provisions. Both the International Convention on the Elimination of All Forms of Racial Discrimination and the International Covenant on Economic, Social and Cultural Rights protect the enjoyment of social rights from discriminatory policies.76 But the importance of equality rules goes much beyond this hard case. For those courts that use the general equality provision extensively for a rationality control of the lawmaker (e.g., Austria, Germany, Italy), social security law has been (next to tax law) the foremost area in which to ensure some kind of rationality in rather complex systems.
The linkage between equality and social rights is even stronger where the constitution itself guarantees the equal enjoyment of some rights, especially health and education or access to basic resources like clean water and sanitation. Thus, the Polish Constitution guarantees equal access to health care as well as to education.77 Similarly, the Constitution of Brazil provides that: ‘Health is the right of all persons and the duty of the state and is guaranteed by means of social and economic policies aimed at reducing the risk of illness and other hazards and at universal and equal access to all actions and services for the promotion, protection and recovery of health.’78 Brazil’s Constitution also contains a guarantee of equal access to education, stating that ‘Education which is the right of all persons and the duty of the State and of the family, shall be promoted and encouraged with the cooperation of society, aiming at full development of the individual, his or her preparation to exercise citizenship, and his or her qualification for work.’79 But even without such explicit provisions, courts have ordered equality in the provision of health80 or access to water.81
For those branches of government entrusted with the enforcement of the law—courts and administrative agencies—a constitutional order to guarantee equality before the law is to a large extent identical with the rule of law (i.e., the obligation to provide equality under law is by definition complied with if the law is applied correctly to everybody).
It is different, however, where an administrative agency enjoys discretion. In this case, constitutional equality provisions become one of the most important principles for controlling the exercise of administrative discretion. The classic US case is Yick Wo v Hopkins, wherein a law so ‘fair on its face’ was administered in an anti-Chinese bias ‘with an evil eye and an unequal hand’.82 The Indian Supreme Court, too, developed extensive case law under Article 14 of the constitution to ensure that the article protects ‘not only against arbitrary laws but also against the arbitrary application of laws’ (Jain, 970).
By the same token, the fact that equal protection under law is guaranteed by correctly applying the law leads to the question of whether any judgment that is wrong in fact or law is also a violation of the constitution. In theory this question can be answered in the affirmative, but in practice it creates no specific constitutional issue in countries with an integrated court structure. There, the superior courts will quash judgments they think wrong without invoking the constitution.
A different circumstance attends in those countries where constitutional control is vested in a specialized constitutional court apart from the ordinary courts and where, in addition, the violation of constitutional rights by other courts can be challenged in the constitutional courts with a constitutional complaint or similar procedure. In this situation, the definition of any wrong judgment as a violation of the constitutional equality provision could easily defeat the relationship between ordinary courts and constitutional courts envisaged by the constitution, and also allow the constitutional court to acquire generalized supervisory control over other courts.
In Germany, where the combination of a specialized Constitutional Court and a constitutional complaints procedure was introduced in 1951, earlier than in other countries, the proper boundary between the spheres of jurisdictions has been one of the ongoing and (unresolved) debates. The Constitutional Court made clear in 1964 that it was not going to control the correctness of the other courts’ judgments83 and so did not take advantage of the theoretical possibility to define any miscarriage of justice as a violation of the equality provision. But the Federal Constitutional Court made an important exception, against much critique.84 If decisions of other courts are not just wrong—but so wrong that they are considered arbitrary—the Court will interpret this as a violation of Article 3(1).85 In a recent judgment, the Court went one step further, holding that a certain line of jurisprudence was so contradictory to the letter of the law and legislative intent that it violated Article 3(1).86
Open and direct racial discrimination by legislation has disappeared with the end of the apartheid system. But indirect social discrimination against minorities (or excluded majorities) unfortunately remains a problem in many parts of the world. Official discrimination in relation to ethnicity or gender has disappeared from the law in most countries, at least in constitutionalist democracies. This does not mean that the fight against social discrimination has become less important. Therefore, the horizontal application of non-discrimination provisions (i.e., their application in the relationship of private parties) is a vital part of any non-discrimination strategy. (See Chapter 14.)
The horizontal application of general equality provisions, on the other hand, would interfere with basic freedoms. Unlike the state, the private citizen is not required to treat all other members of society alike. This does not mean, however, that horizontal application of general equality provisions is completely excluded. On the one hand, we have seen that apart from specific non-discrimination provisions, hard discrimination questions can arise in the framework of a general equality provision. For these, a horizontal application is as relevant as the accepted non-discrimination laws with relation to race or gender.
More generally, in some constitutional systems, powerful social actors who control the lives of other members of society are held to standards comparable to those applied to state actors. Labour law is the classic example. In Germany, the labour courts have developed from the constitutional equality principle a labour-law equality principle that binds employers and the contracting parties of collective bargaining agreements in their treatment of employees.87 (Similarly, the providers of basic services like water or electricity have been required by courts to provide equal access to their customers.)
1 A good discussion of the different positions in this debate is given by Gosepath.
2 Sherry 89–99 (discussing judicial activism and the Equal Protection Clause).
3 We consciously use the term ‘general’ rather than ‘universal’ to more accurately capture the fact that some states predicate equality protection on citizenship or residency rather than personhood.
4 Art 3 Costituzione (It.), translated in Italy—Constitution, INTERNATIONAL CONSTITUTIONAL LAW COUNTRIES, http://www.servat.unibe.ch/icl/it00000_.html (last visited Mar. 26, 2012). Unless otherwise indicated, all translated quotations from national constitutions cited in this Chapter are taken from this source, which allows readers to locate the identified nation’s constitutions.
5 Constitution Act, 1982, being Schedule B to the Canada Act, 1982, c. 15 (UK).
6 Law v Canada (Minister of Employment and Immigration) [1999] S.C.R. 497 (Can).
7 Argentina Sec 16 (‘All its inhabitants are equal before the law’).
8 Brazil art 5 (‘All persons are equal before the law, without any distinction whatsoever’).
9 China art 33 § 2 (2004) (‘All citizens of the People’s Republic of China are equal before the law’).
10 2001 Syntagma [Syn.][Constitution] 2 (Greece), translated in The Constitution of Greece, Centre for European Constitutional Law, http://www.cecl.gr/RigasNetwork/databank/Constitutions/Greece.html (‘All Greeks are equal before the law’).
11 Luxembourg art 11(2) (‘Luxembourgers are equal before the law’); id art 11(1) (‘There is no distinction of orders in the State’).
12 Morocco 1996 (‘The law is the supreme expression of the will of the nation. All individuals or entities … are equal before it’).
13 Vietnam Art 52 (1992) (‘All citizens are equal before the law’).
14 Conseil Constitutionnel [CC][Constitutional Court] decision No 73-51DC, Dec 27, 1973, Rec 25 (Fr).
15 Conseil Constitutionnel [CC][Constitutional Court] decision No 83-164DC, Dec 29, 1983, Rec 67 (Fr).
16 For example, Sweden 2:15 (‘No Act of law or other statutory instrument may entail the discrimination of any citizen because he belongs to a minority on grounds of race, skin color, or ethnic origin’).
17 Danmarks Riges Grundlov [Constitution] June 5, 1953, §§ 4, 6, 66, 67, 68, 70 (Denmark) (pertaining to religion); id at §§ 11, 83, 84 (pertaining to aristocratic privileges); id at 44, 70-80 (protecting the rights of minorities and liberty generally); Kongeriket Norges Grunnlov [Constitution] May 17, 1814, art 95 (Norway) (‘No dispensations, protections from civil arrest, moratoriums or redresses may be granted after the new general code has entered into force’); id at art 101 (regarding professional monopolies); id. at art 110a (‘It is the responsibility of the authorities of the State to create conditions enabling the Sami people to preserve and develop its language, culture and way of life’); id at arts 2, 4, 16 (regarding religious equality); id at arts 108, 109 (pertaining to aristocratic privileges); id at arts 53, 96, 97, 99, 100, 101, 102, 13, 104 (regarding the rights of minorities and liberty generally).
18 Ugeskrift for Retsvaesen [UfR] 1999, p. 841 (Den); Jensen, 492.
19 Afghanistan Jan 26, 2004, art 22 (‘The citizens of Afghanistan—whether man or woman—have equal rights and duties before the law’); id (‘Any kind of discrimination and privilege between the citizens of Afghanistan are prohibited’).
20 Belarus, Mar 1, 1994, art 22 (‘All shall be equal before the law and entitled, without discrimination, to equal protection of their rights and legitimate interests’).
21 Belgium 1994 art 10 (‘Belgians are equal before the law’); id at art 11 (‘Enjoyment of the rights and freedoms recognized for Belgians must be provided without discrimination’).
22 Costa Rica, Oct 5, 2005, art 33 (‘All persons are equal before the law and there shall be no discrimination against human dignity’).
23 Latvia 2003, art 91 (‘All human beings in Latvia shall be equal before the law and the courts. Human rights shall be realized without discrimination of any kind’).
24 Lebanon, Sept 21, 1990, art 7 (‘All Lebanese are equal before the law. They equally enjoy civil and political rights and equally are bound by public obligations and duties without any distinction’).
25 Paraguay, June 20, 1992, art 46 (‘All residents of the Republic are equal as far as dignity and rights are concerned. No discrimination is permitted’).
26 Poland, Apr 2, 1997, art 32(1) (‘All persons shall be equal before the law. All persons shall have the right to equal treatment by public authorities’); id at art 32(2) (‘No one shall be discriminated against in political, social or economic life for any reason whatsoever’).
27 Romania, Nov 21, 1991, art 16(1) (‘Citizens are equal before the law and public authorities, without any privilege or discrimination’).
28 Albania, Aug 4, 1998, art 18(1) (‘All are equal before the law’); id at 18(2) (enumerating gender, race, religion, ethnicity, language, political, religious or philosophical beliefs, economic condition, education, social status, or ancestry).
29 Algeria, Nov 28, 1996, art 29 (‘All citizens are equal before the law. No discrimination shall prevail because of bind, race, sex, opinion or any other personal or social condition or circumstance’).
30 Bahrain, Feb 14 2002, art 18 (‘People are equal in human dignity, and citizens are equal before the law in public rights and duties. There shall be no discrimination among them on the basis of sex, origin, language, religion or creed’).
31 Bulgaria, July 13, 1991, art 6(2) (‘All citizens shall be equal before the law. There shall be no privileges or restriction of rights on the grounds of race, national or social origin, ethnic self-identity, sex, origin, religion, education, opinion, political affiliation, personal or social status, or property status’).
32 Constitution Act, supra note 16 (‘Every individual is equal before and under the law and has the right to the equal protection and equal benefit of the law without discrimination and, in particular, without discrimination based on race, national or ethnic origin, colour, religion, sex, age or mental or physical disability’).
33 Eritrea, May 23, 1997, art 14(1), translated in The Constitution for Eritrea, International Labour Organization, http://www.ilo.org/wcmsp5/groups/…/---ed…/wcms_126648.pdf (‘All persons are equal before the law’); id. at art. 14(2) (enumerating race, ethnic origin, language, colour, sex, religion, disability, political belief or opinion, or social or economic status or any other improper factors).
34 Estonia, June 28, 1992, art 12(1) (‘All persons shall be equal before the law. No one may be discriminated against on the basis of nationality, race, color, sex, language, origin, creed, political or other persuasions, financial or social status, or other reasons’).
35 Germany May 23, 1949 BGBI 3(1) (Ger) (‘All persons are equal before the law’), id at 3(3) (‘enumerating sex, parentage, race, language, homeland and origin, faith or religious or political opinions’).
36 Article 14, Section 2, Doustour Joumhouriat al-Iraq [The Constitution of the Republic of Iraq] of 2005, translated in Iraqi Constitution, United Nations Assistance Mission for Iraq, http://www.uniraq.org/documents/iraqi_constitution.pdf (‘Iraqis are equal before the law without discrimination based on gender, race, ethnicity, nationality, origin, color, religion, sect, belief or opinion, or economic or social status’).
37 Kenya, art 27(1) (2010) (‘Every person is equal before the law and has the right to equal protection and equal benefit of the law’); id at art 12(4) (enumerating race, sex, pregnancy, marital status, health status, ethnic or social origin, colour, age, disability, religion, conscience, belief, culture, dress, language or birth).
38 Lithuania, Oct 25, 1992, art 29(1) (‘All people shall be equal before the law, the court, and other State institutions and officers’); id at art 29(2) (enumerating sex, race, nationality, language, origin, social status, religion, convictions, or opinions).
39 Madagascar, Aug 19, 1992, art 8(1) (‘Citizens shall be equal under the law, enjoying the same fundamental liberties protected by law’); id at art 8(2) (‘enumerating sex, education, wealth, origin, race, religion, or opinion’).
40 Namibia Feb 1990, art 10(1) (‘All persons shall be equal before the law’); id at art 10(2) (enumerating sex, race, colour, ethnic origin, religion, creed or social or economic status).
41 Interim Constitution of Nepal, 2007, art 13, translated in Final Interim Constitution, World Statesman. org, http://www.worldstatesmen.org/Nepal_Interim_Constitution2007.pdf (‘(1) All citizens shall be equal before the law. No person shall be denied the equal protection of the laws. (2) There shall be no discrimination against any citizen in the application of general laws on grounds of religion, race, gender, caste, tribe, origin, language or ideological conviction or any of these. (3) The State shall not discriminate among citizens on grounds of religion, race, caste, tribe, gender, origin, language or ideological conviction or any of these … (4) No discrimination with regard to remuneration and social security shall be made between men and women for the same work’).
42 Netherlands, Feb 17, 1983, art 1 (‘All persons in the Netherlands shall be treated equally in equal circumstances. Discrimination on the grounds of religion, belief, political opinion, race, or sex or on any other grounds whatsoever shall not be permitted’).
43 Oman, Nov 6, 1996, art 17 (‘All citizens are equal before the Law, and they are equal in public rights and duties. There shall be no discrimination between them on the grounds of gender, origin, colour, language, religion, sect, domicile or social status’).
44 Qatar, Apr 29, 2003, art 34 (‘The Citizens of Qatar shall be equal in public rights and duties’); id at art 35 (enumerating sex, race, language, or religion).
45 Serbia, Oct 28/29, 2006, art 21(1 (‘All are equal before the Constitution and law’); id at art 21(3) (enumerating race, sex, national origin, social origin, birth, religion, political or other opinion, property status, culture, language, age, mental or physical disability).
46 South Korea, art 11 (‘All citizens are equal before the law, and there may be no discrimination in political, economic, social, or cultural life on account of sex, religion, or social status’).
47 Switzerland, Apr 18, 1999, art 8 para (‘All humans are equal before the law’); id at art 8, para 2 (enumerating origin, race, sex, age, language, social position, way of life, religious, philosophical, or political convictions, or corporal or mental disability).
48 Turkey, May 10, 2007, art 10 (‘(1) All individuals are equal without any discrimination before the law, irrespective of language, race, colour, sex, political opinion, philosophical belief, religion and sect, or any such considerations. (2) Men and women have equal rights. The State shall have the obligation to ensure that this equality exists in practice. (3) No privilege shall be granted to any individual, family, group or class. (4) State organs and administrative authorities shall act in compliance with the principle of equality before the law in all their proceedings’).
49 East Timor, May 20, 2002, sec 16(1), translated in Constitution of the Democratic Republic of East Timor, The Constitution Society, http://www.constitution.org/cons/east_timor/constitution-eng.htm (‘All citizens are equal before the law, shall exercise the same rights and shall be subject to the same duties’); id at sec 16(2) (enumerating colour, race, marital status, gender, ethnical origin, language, social or economic status, political or ideological convictions, religion, education and physical or mental condition).
50 Art 3 of the Italian Constitution of 1947 was drafted in a similar spirit; see Costituzione [Cost.] (It.), supra note 5 (‘All citizens have equal social status and are equal before the law, without regard to their sex, race, language, religion, political opinions, and personal or social conditions’).
51 The Constitution of the German Empire [Weimar Constitution], Aug 11, 1919, art 109, translated in Volume 6. Weimar Germany, 1918/19–1933, German History in Documents and Images, http://germanhistorydocs.ghi-dc.org/pdf/eng/ghi_pol_weimarconstitution_Eng.pdf (last visited Mar 26, 2012) (‘All Germans are equal before the law’).
52 Grundgesetz für die Bundesrepublik Deutschland [Grundgesetz] [GG] [Basic law], May 23, 1949, BGBI. I at 3(1) (Ger).
53 Id at 3(3). Article 6(5) forbids discrimination against children born out of wedlock. Id at 6(5). In 1994, the prohibition on the basis of disability was added. Gesetz zur Änderung des Grundgesetzes [Law Amending Basic Law], Oct 27, 1994, BGBI. I at 3146 (Ger). 1249 UNTS 13.
54 Convention on the Elimination of All Forms of Racial Discrimination, Mar 7, 1966, 660 UNTS 195.
55 Convention on All Forms of Discrimination against Women, Dec 18, 1979, 1249 UNTS 13.
56 International Convention on the Protection of the Rights of All Migrant Workers and Members of their Families, Dec 18, 1990, 2220 UNTS 3.
57 Convention on the Rights of Persons with Disabilities, Mar 30, 2007, 993 UNTS 3.
58 International Covenant on Civil and Political Rights arts 4, 26, 16 Dec 1966, 999 UNTS 171; International Covenant on Economic, Social and Cultural Rights art 2(2), 16 Dec 1966, 993 UNTS 3; Universal Declaration of Human Rights, GA Res. 217 (III)A, UN Doc. A/RES/217(III), at art 7 (Dec 10, 1948).
59 Botschaft des Bundesrates über eine neue Bundesverfassung, Nov 20, 1996, BBI 1, S 1, 141f (Switz).
60 These distinctions include sex, racial or ethnic origin, religion or belief, disability, age or sexual orientation. Consolidated Version of the Treaty on the Functioning of the European Union art 19, Mar 30, 2010, 2010 OJ (C 83/01) 47; Charter of Fundamental Rights of the European Union art 21 Mar 30, 2010, 2010 OJ (C 83/02) 389.
61 Türkiye Cumhuriyeti Anayasasi [Constitution of the Republic of Turkey], art 10(1) (‘All individuals are equal without any discrimination before the law, irrespective of language, race, colour, sex, political opinion, philosophical belief, religion and sect, or any such considerations’).
62 Id at art. 10(4) (‘State organs and administrative authorities shall act in compliance with the principle of equality before the law in all their proceedings’).
63 BVerfGE 1, 14 (52).
64 BVerfGE 126, 400 (416).
65 BVerfGE 88, 87 (96).
66 BVerfGE 121, 317 (370).
67 E.g., Austria, Brazil, Canada, Finland, Fiji, the Gambia, Germany, Ghana, Malawi, New Zealand, South Africa, Switzerland, and Uganda (Degener, 92).
68 Constitución del Ecuador [Constitution of Ecuador] Oct 20, 2008, art 417.
69 Committee on Economic, Social and Cultural Rights, General Comment No 5 Persons with Disabilities, paras 16–17, UN Doc. E/1995/22 (1994) (‘[T]o remedy past and present discrimination, and to deter future discrimination, comprehensive anti-discrimination legislation in relation to disability would seem indispensable … Anti-discrimination measures should be based on the principle of equal rights’).
70 Convention on the Rights of Persons with Disabilities, supra note 59, art 19; Quinn & Stein.
71 Convention on the Rights of Persons with Disabilities, supra note 59, art 29.
72 Alajos Kiss v Hungary, App. No. 38832/06 (Eur Ct of Human Rights, May 20, 2010), para 44; Stanev v Bulgaria, App. No. 36760/06 (Eur Ct of Human Rights, Jan 17, 2012), para 159.
73 See generally Bhabha.
74 S. Afr. Const., 1996, art 9(3) (‘The state may not unfairly discriminate directly or indirectly against anyone on one or more grounds, including race, gender, sex, pregnancy, marital status, ethnic or social origin, colour, sexual orientation, age, disability, religion, conscience, belief, culture, language and birth’). Other statutory provisions bolster this imperative, for example the Employment Equality Act. Employment Equity Act 55 of 198 (S. Afr.).
75 Gosepath, supra note 1 (‘[H]uman beings should have the same initial expectations of ‘basic goods’).
76 International Covenant on Economic, Social and Cultural Rights, supra note 60, at art 2(2) (‘The State Parties to the present Covenant undertake to guarantee the rights enunciated in the present Covenant will be exercised without discrimination of any kind as to race, colour, sex, language, religion, political or other opinion, national or social origin, property, birth or other status’); International Convention on the Elimination of All Forms of Racial Discrimination, supra note 56, at art 5(e) (‘State Parties undertake to prohibit and eliminate racial discrimination in all its forms and to guarantee the right of everyone without distinction as to race, colour, or national or ethnic origin, to equality before the law, notable in the enjoyment of the following rights … (e) Economic, social and cultural rights, in particular …’).
77 Konstytucja Rzeczypospolitej Polskiej [Constitution of the Republic of Poland] Apr 2, 1997, art 68 (‘1. Everyone shall have the right to have his health protected. 2. Equal access to health care services, financed from public funds, shall be ensured by public authorities to citizens, irrespective of their material situation’); id at art 70(1) (‘Everyone shall have the right to education’).
78 Constituição Federal [C.F.] [Constitution] art 196 (Braz).
79 Id art 205.
80 For example, in Colombia T-760/2008 (July 31, 2008), the Columbian Constitutional Court utilized its function of reviewing tutela actions (in this case, some 22 consolidated cases alleging violations of a right to health) to review the state’s entire health care system and declare the right to health a fundamental right. The court, in addition, ruled that access to prompt sanitary services was an essential part of that right.
81 Lindiwe Mazibuko and Others v City of Johannesburg and Others 2009 [2009] ZACC 28; (3) BCLR 239 (CC) (S Afr).
82 Yick Wo v Hopkins, 118 US 356, 373 (1886).
83 Structuring procedure, establishing and evaluating facts, interpreting ordinary laws and their application to a concrete case are the exclusive competence of the competent courts and cannot be reviewed by the Federal Constitutional Court. It is only in case of a violation of specific constitutional law that the Federal Constitutional Court can intervene. BVerfGE 18, 85 (92).
84 BVerfGE 42, 64 (78).
85 BVerfGE 42, 64; BVerfGE 57, 39 (41-42); see also Currie, 335.
86 BVerfGE 128, 193.
87 Weiss & Schmidt, 94.
All constitutional provisions can be found at http://www.servat.unibe.ch/icl, unless otherwise indicated.
Baer, S (1999). ‘Equality: The Jurisprudence of the German Constitutional Court’, Columbia Journal of European Law 5: 249 – 80.
Bhabha, F (2009). ‘Disability Equality Rights in South Africa: Concepts, Interpretation and the Transformation Imperative’, South African Journal of Human Rights 25: 218 – 46.
Bryde, B (2003). ‘The Internationalization of Constitutional Law’, in Groß, T (ed), Legal Scholarship in International and Comparative Law (Frankfurt Peter Lang Publishers).
Currie, D (1999). The Constitution of the Federal Republic of Germany (Chicago, University of Chicago Press).
Dahrendorf, R (1968). On the Origin of Inequality Among Men, in Essays in the Theory of Society 151.
Degener, T (2011). ‘Disability Discrimination Law: A Global Comparative Approach’, in Lawson, A & Gooding, C (eds), Disability Rights in Europe: From Theory to Practice 87 – 106.
Gosepath, S (2007). Equality, in Zalta, EN (ed), Stanford Encyclopedia of Philosophy, available at http://plato.stanford.edu/entries/equality.
Groppi, T (2008). ‘The Italian Constitutional Court’, Journal of Comparative Law 3: 100 – 17.
Jain MP Indian Constitutional Law (LexisNexis Butterworths Wadhwa, 2010)
Jensen, JA (1999). ‘The 150th Anniversary of the Danish Constitution and a Landmark Decision of the Supreme Court’, European Public Law Journal 5: 492 – 99.
Quinn, G et al (2002), Human Rights and Disability: The current use and future potential of United Nations human rights instruments in the context of disability, 23.
—— & Stein, M (2009). ‘Challenges in Realising the Right to Live in the Community’, in Bulic, I & Parker, C (eds), Focus on Article 19 of the UN Convention on the Rights of Persons with Disabilities (European Coalition for Community Living), 28.
Sherry, S (1984). ‘Selective Judicial Activism in the Equal Protection Context: Democracy, Distrust, and Deconstruction’, Georgetown Law Journal 73: 89 – 126.
Stein, M (2007). ‘Disability Human Rights’, California Law Review 95: 75 – 121.
Stein, M & Lord, J (2011). ‘Accessing Socio-Economic Rights: The Rights of Persons with Disabilities’, in Langford, M & Reidel, E (eds), Equality and Socio-Economic Rights: International Law in Theory and Practice.
—— & Stein, P (2007). ‘Beyond Disability Civil Rights’, Hastings Law Journal 58: 1203 – 40.
Weiss, M & Schmidt, M (2008). Labour Law and Industrial Relations in Germany (The Netherlands, Kluwer Law International).
Baer, S (2012), ‘Equality’, in Rosenfeld, M & Sajo, A (eds), Oxford Handbook on Comparative Constitutional Law.
Stein, M (2004). ‘Same Struggle, Different Difference: ADA Accommodations as Antidiscrimination’, University of Pennsylvania Law Review 153: 579 – 673.
Wolfrum, R (ed) (2003). Gleichheit und Nichtdiskriminerung im nationalen und Internationale Menschenrechtsschutz (Berlin/Heidelberg/New York).