Equal Protection

The plaintiff was a Yorta Yorta man who lived in northern Victoria. He was charged with offences allegedly committed in and around Echuca. The Koori Court Division did not sit in Echuca. He applied to the Magistrates’ Court at Echuca to have his matters transferred under s4F of the Act to the Koori Court Division sitting at Shepparton. The magistrate refused the application on the basis that Echuca was the ‘proper venue’. The plaintiff sought judicial review on the basis that the decision was affected by jurisdictional error or error of law on the face of the record, and that it contravened the Charter of Human Rights and Responsibilities Act 2006 (Vic) (the Charter). Section 8(3) of the Charter relevantly provided that every person ‘has the right to equal and effective protection against discrimination’. Section 19(2)(a) provided that Aboriginal persons must not be denied the right to enjoy their identity and culture.

Section 4F of the Magistrates’ Court Act 1989 (Vic) (the Act) empowered a magistrate to transfer proceedings to the Koori Court Division of the Magistrates’ Court in certain circumstances. Section 4F(3) provided that if a proceeding was transferred from one venue to another, ‘the transferee venue is the proper venue of the Courtfor the purposes of this Act’.

Consideration of s32 of the Charter: (a) The interpretative principle contained in s 32(1) of the Charter meant that the proper exercise of the discretion contained in s4F(2) of the Act required consideration of relevant human rights, being, in this case,the third limb of s8(3) and s19(2)(a). [12], [78].(b)   Section 4F(2) of the Act could be interpreted compatibly with human rights by taking into account the purposes of the Koori Court legislation. [152].


The respondent QT[1] is a British national.  She is homosexual and met her partner, SS, who has dual South African and British nationality, in 2004.  In May 2011, QT and SS entered into a same-sex civil partnership in England under the UK’s Civil Partnership Act 2004.

  SS was offered employment in Hong Kong and granted an employment visa to come and work here.  On 23 September 2011, the couple entered Hong Kong, SS on the strength of her employment visa and QT as a visitor.  Since their arrival in Hong Kong, SS’s employment visa has been extended from time to time as has QT’s visitor status.  As a visitor, QT is not permitted to work or study in Hong Kong and, unlike those who enter under a dependant visa, her period of stay may not qualify her for eventual permanent resident status.  The couple live in Hong Kong together and SS supports QT.  There is no dispute that their civil partnership is a genuine relationship and that they live together as a family.

After making unsuccessful applications for a dependant visa and also for an employment visa in her own right, on 29 January 2014 QT submitted the application for a dependant visa.

The Court of Final Appeal of the Hong Kong Special Administrative Region ruled that the Director has not justified the differential treatment against QT:

106.  The “core values” mentioned by Ma CJ are often referred to as the “suspect or prohibited grounds” identified in Art 22 of the Bill of Rights as including “any ground such as race, colour, sex, language, religion, political or other opinion, national or social origin, property, birth or other status”.[135] It is clear that discrimination on the ground of sexual orientation is included within this assemblage of suspect grounds, sexual orientation falling within the words “other status”.[136]

107.  Discrimination on any of those grounds is regarded as especially  pernicious because, as Lord Walker pointed out in Carson:[137]

    “They are personal characteristics (including sex, race and sexual orientation) which an individual cannot change (apart from the wholly exceptional case of transsexual gender reassignment) and which, if used as a ground for discrimination, are recognised as particularly demeaning for the victim.”

108.  Accordingly, where a person is subjected to differential treatment on any of the suspect grounds, including sexual orientation, the government’s margin of discretion is much narrowed and the court will subject the impugned measure to “particularly severe scrutiny”.[138] That does not mean that the measure can never pass muster, but it will require the government to provide “very weighty reasons” or “particularly convincing and weighty reasons”[139] to justify the challenged difference in treatment, applying the standard of reasonable necessity.


With regards to  the  estate of  P,  who died in  July 2001, the  appellees who are  P's  children born in  wedlock filed a petition for  a ruling on  the division of  P's  estate against the  appellants, who are P's children born out of  wedlock. Relying on  the  1995 Decision, the  court of  prior instance, the Tokyo High Court, determined that the  Provision was not  in  violation of Article 14, paragraph (1) of  the  Constitution, and concluded that P's  estate should be  divided based on  the  respective statutory shares in  inheritance of  the  appellees and  the  appellants as  calculated by  applying the  Provision. The appellants argued that the  Provision is   in  violation of  Article 14, paragraph (1) of   the  Constitution and therefore void.

Court ruling

The SCJ [Suprene Court of Japan] (GB [Grand Bench]) quashed the decision of the Tokyo High Court by concluding that the Provision was in  violation of  Article 14 paragraph (1) of the Constitution as of July 2001 at the latest.

The 2013 Decision emphasized that the  matters to be considered (such as tradition, social conditions and  public sentiments) change with time. Therefore, the reasonableness of  the rules should be subject to  constant examination and scrutiny in light of  the Constitution, which provides individual dignity and  equality under the  law.

Quotations from the court decision:

Article 14, paragraph (1) of  the  Constitution provides for  equality under the  law, and  this  provision should be  interpreted as  prohibiting  any discriminatory treatment by  law unless such treatment is based on  reasonable grounds in  relation to  the  nature of  the  matter. This is  the  case law established by  the  precedent rulings of  this court.
                                    xxx                                  xxx                                    xxxx
Even if   the  legal marriage system itself is  entrenched in Japan, it  is  now impermissible, as  a result of  such change in  the  recognition, to  cause prejudice to  children by reason of  the  fact  that their mother and father were not  in  a legal marriage when they were born - a  matter that the  children themselves had  no choice or  chance to correct. Rather, it can be said  that a notion that all  children must be given respect as  individuals and  that their rights must be protected has been established.

Taken from Akiko, Ejima, "Emerging Transjudicial Dialogue on Human Rights in Japan- Does It Contribute to the Production of a Hybrid of National and International Human Rights?," Departmental Bulletin Paper, Meiji University

This case came before the Supreme Court of India, on appeal, against a Bombay High Court verdict striking down the Maharashtra government’s statewide ban on dance performances in bars. The ban dates back to August 2005, and prohibited ‘any type of dancing' in an "eating house, permit room or beer bar", but made an exception for dance performances in three stars hotels and above, and other elite establishments. The State justified the ban by asserting that bar dancing corrupts morals, fuels trafficking and prostitution, and causes exploitation of women bar dancers. Due to the ban, 75,000 women workers became unemployed. Many did not have other marketable skills. Statistics show that 68 per cent of bar dancers were sole bread earners of their family. While a rehabilitation program was in place, it was not enforced. Unemployment and financial hardship forced several erstwhile women bar dancers to leave the state or resort to prostitution, while many committed suicide.
On July 16th, 2013, the Supreme Court, in a landmark decision, upheld the rights of bar dancers. The judgment affirmed the Bombay High Court decision which found that the prohibition on dancing violated the right to carry on one’s profession/occupation under Article 19(1)(g) of the Constitution, and that banning dances in some establishments while allowing them in others infringed upon the right to equality under Article 14 of the Constitution.

The Supreme Court noted that “The restrictions in the nature of prohibition cannot be said to be reasonable, inasmuch as there could be several lesser alternatives available which would have been adequate to ensure safety of women than to completely prohibit dance…”  The decision excoriates the ban stating that the “cure is worse than the disease” given that contrary to its purpose, the ban resulted in many women being forced into prostitution. The Court urged that it would be more appropriate to bring about measures which ensure the safety and improve the working conditions of bar dancers.  Instead of putting curbs on women’s freedom, empowerment would be more tenable and socially wise approach.


The Indian Succession Act 1925 discriminated against Christians in the bequeathing of property. Since it was enacted before the Indian Constitution came into effect, the Supreme Court of India could have dismissed this challenge as being a challenge against something that was not a “law in force”. The challengers claimed that it violated the UN Declaration on the Right to Development and the ICCPR. While the Court did not extensively discuss this aspect of the challengers’ claims, it nevertheless ruled in favor of the challengers and struck down the law.

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The Equal Opportunities Commission filed suit against the government. The plaintiff claimed that the state secondary school system had discriminated against a young female student. The female student had the same test scores as a male student, but the plaintiff claimed that the boy stood an unfair, greater chance of acceptance by his preferred secondary school than the girl.

The Court of First Instance of the High Court (this case was not appealed) held that the government’s admission policy was biased toward males over females. Furthermore, the government had not justified the discrimination by any of the reasons the government considered allowable. In so holding, the CFI referred to Article 22 of the Hong Kong Bill of Rights, which was domestic law and a copy of Article 26 of the ICCPR. The CFI also cited CEDAW, which was extended into domestic Hong Kong law in 1996. The CFI held that the provisions of the Hong Kong domestic Sex Discrimination Ordinance were “to be construed, if they are reasonably capable of bearing such a meaning, as intended to carry out the obligations contained in CEDAW rather than being inconsistent with them.” The right of the individual, the CFI said, to be free from gender discrimination could not be easily subordinated to “group fairness”, that is, the notion that the school admission policy should be biased toward boys with lower test scores. <

After this decision, the Education Department changed its admission policy.

International Human Rights Law and Domestic Constitutional Law: Internationalisation of Constitutional Law in Hong Kong” by Albert H.Y. Chen, pp. 19-21)


Under Hong Kong law, non-residents were afforded all of the rights as residents except for the right of abode. A citizen of Nepal in 1995 moved to Hong Kong as a dependant to his wife, a permanent resident of Hong Kong. He developed two businesses. In 1997, after traveling abroad, he was denied entry into Hong Kong in concordance with a change in Hong Kong law that had occurred. The Court of Final Appeal held that the Nepalese citizen, even though not a permanent resident, was allowed to re-enter the country. Under the Basic Law (which had incorporated the ICCPR), non-permanent residents of Hong Kong had the right to travel. To restrict his ability to travel would be to act against the spirit of the protections afforded by the Basic Law.

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A law in Nepal gave preference to males regarding ancestral property inheritance. The Forum for Women, Law and Development asked the Supreme Court of Nepal to overturn this law, citing CEDAW, which had the status of national law in Nepal. Instead of striking down this law directly, the Court ordered the government to pass legislation within one year to rectify the situation. However, the government did not do so. Thus, while the Court considered international human rights norms in making its decision, its decision was ultimately ineffective.

Nauru : In Re Lorna Gleeson, [2006] NRSC 8

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The appellant, a citizen of Nauru, wished to adopt a child also a citizen of Nauru. The appellant’s spouse, however, was not a citizen of Nauru. Under the Constitution, both parents had to be citizens of Nauru in order for the couple to adopt. The appellant challenged this in court and cited the CRC. The Supreme Court of Nauru sided with the appellant and said that such a law was in violation of the spirit of the CRC. The Court considered the CRC even though it had not been incorporated into domestic law in Nauru.

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(NOTE: this is a High Court case. The High Court is not the highest court in Kiribati (the highest court in Kiribati is the Court of Appeal). Nevertheless, this case can be helpful in deciding where Kiribati courts might go in the future, given the deficit of Court of Appeal cases from Kiribati citing international human rights standards.)

The former Director of Public Prosecutions tried to use CEDAW, which was unratified in Kiribati, to challenge discriminatory domestic law (the gender discriminatory corroboration warning in rape cases). Kiribati had not ratified CEDAW at the time of this judgment (but it has since been ratified). However, the Supreme Court of Kiribati was not persuaded, and the argument failed. Nevertheless, the Court at least considered CEDAW, and it was probably an influence, direct or indirect, on the outcome of the case.

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A woman born into a “forward class” married a man belonging to a “backward class”. Under Indian law, states could make provisions for members of “backward classes” so as to diminish the equality gap, despite the Indian constitution’s protections against discrimination. The woman thus applied for a job based on her belonging to a “backward class” via marriage, even though she had grown up with all of the privileges that belonging to a “forward class” entails and none of those entailed by belonging to a “backward class”. She got the job. Another candidate challenged this. The Supreme Court, citing CEDAW and saying that “its principles are enforceable by operation of the Protection of Human Rights Act 1993”, ruled in favor of the challenger. It held that women from a “forward class” could not reap the benefits of such affirmative action programs by becoming members of a “backward class” by marriage.

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This was a public interest litigation. A woman had been raped by five men in front of the woman's husband. Though she sought justice, she encountered obstacles: the police inadequately responded to her complaint and government doctors refused to properly conduct a medical examination. A public interest lawyer took up the woman's case.

The Court used international law (CEDAW) in enacting guidelines for combating sexual harassment in the workplace. ''Any International Convention not inconsistent with the fundamental rights and in harmony with its spirit must be read into these provisions to enlarge the meaning and content thereof.'' Using CEDAW as a guideline, the Court ensured that women would be better protected in the workplace, as to violate the Court's standards protecting women would be a breach of the law.

(found in ''Gender Justice through Public Interest Litigation: Case Studies from India'' by Avani Mehta Sooc, Vanderbilt Journal of Transnational Law, Volume 41, Number 3, May 2008, pp. 836-837, 863, 866-867)

This was a class action by social activists and NGOs responding to the gang rape of a social worker. The Court looked to international law and designed rules to combat sexual harassment: ''Any International Convention not inconsistent with the fundamental right and in harmony with its spirit must be read into these provisions to enlarge the meaning and content thereof, to promote the object of the constitutional guarantee.'' Thus, in India, in the absence of domestic law, gender equality should be interpreted in light of international conventions and norms. The Court looked to CEDAW when it said that ''[g]ender equality includes protection from sexual harassment and the right to work with dignity.'' The Court then drafted a detailed sexual harassment code and imposed a duty on employers (ostensibly both public and private) to prevent sexual harassment in the workplace and to provide a grievance option for employees.

For these above cases, the Supreme Court of India relied on international law and saw the issue of gender violence as an equality issue. It found that freedom from gender violence was a constitutionally protected right.

(found in ''Women and Law: A Comparative Analysis of the United States and Indian Supreme Courts' Equality Jurisprudence'' by Eileen Kaufman, Georgia Journal of International and Comparative Law, Vol. 34, No. 3, pp. 560, 609-613)

A supervisor allegedly sexually harassed an employee. The Supreme Court restored the supervisor's removal. In doing so, it relied on international instruments to find that sexual harassment in the workplace amounts to a violation of the fundamental rights to gender equality, life, and liberty.

There existed in Pakistan the custom of swara, in which young women or minor girls would be given away by their families as property (i.e. forced to marry another man not of their choosing) as recompense for a crime committed by a member of the woman’s family. The petitioners challenged this custom in the Supreme Court of Pakistan. They argued that such a custom violated, among other things, the constitution, the UDHR, CEDAW, the ICESCR, and the CRC. The Supreme Court then struck down the custom of swara, declaring marriages entered into under such a custom to have no legal status. Thus, all women who had been bound to a forced marriage under the swara custom were freed. However, though the Court freed these women, it did not explicitly say in its reasoning that it was swayed by such international human rights norms, even though the petitioners cited them as grounds for such a decision. On the other hand, the Court did not outright reject these arguments. And, in the end, the Court’s decision explicitly affirmed that women had fundamental rights which could not legally be violated.

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Ang Ladlad is an organization composed of men and women who identify themselves as lesbians, gays, bisexuals, or trans-gendered individuals (LGBTs). Incorporated in 2003, Ang Ladlad first applied for registration with the COMELEC in 2006. The application for accreditation was denied on the ground that the organization had no substantial membership base. On August 17, 2009, Ang Ladlad again filed a Petition[5] for registration with the COMELEC.

On November 11, 2009, after admitting the petitioner's evidence, the COMELEC (Second Division) dismissed the Petition on moral grounds, stating that:

    x x x This Petition is dismissible on moral grounds. Petitioner defines the Filipino Lesbian, Gay, Bisexual and Transgender (LGBT) Community, thus:

        x x x a marginalized and under-represented sector that is particularly disadvantaged because of their sexual orientation and gender identity.

... and proceeded to define sexual orientation as that which:

    x x x refers to a person's capacity for profound emotional, affectional and sexual attraction to, and intimate and sexual relations with, individuals of a different gender, of the same gender, or more than one gender."

On January 4, 2010, Ang Ladlad filed this Petition, praying that the Court annul the Assailed Resolutions and direct the COMELEC to grant Ang Ladlad's application for accreditation.

Court ruling

We grant the petition.

Our Constitution provides in Article III, Section 5 that "[n]o law shall be made respecting an establishment of religion, or prohibiting the free exercise thereof." At bottom, what our non-establishment clause calls for is "government neutrality in religious matters."[24] Clearly, "governmental reliance on religious justification is inconsistent with this policy of neutrality."[25] We thus find that it was grave violation of the non-establishment clause for the COMELEC to utilize the Bible and the Koran to justify the exclusion of Ang Ladlad.
                                 xxx                                   xxx                           xxxx

Equal Protection

From the standpoint of the political process, the lesbian, gay, bisexual, and transgender have the same interest in participating in the party-list system on the same basis as other political parties similarly situated. State intrusion in this case is equally burdensome. Hence, laws of general application should apply with equal force to LGBTs, and they deserve to participate in the party-list system on the same basis as other marginalized and under-represented sectors.

                                 xxx                                   xxx                           xxxx

Freedom of Expression

Freedom of expression constitutes one of the essential foundations of a democratic society, and this freedom applies not only to those that are favorably received but also to those that offend, shock, or disturb. Any restriction imposed in this sphere must be proportionate to the legitimate aim pursued. Absent any compelling state interest, it is not for the COMELEC or this Court to impose its views on the populace. Otherwise stated, the COMELEC is certainly not free to interfere with speech for no better reason than promoting an approved message or discouraging a disfavored one.

This position gains even more force if one considers that homosexual conduct is not illegal in this country. It follows that both expressions concerning one's homosexuality and the activity of forming a political association that supports LGBT individuals are protected as well.

                                     xxx                                   xxx                           xxxx


From the standpoint of the political process, the lesbian, gay, bisexual, and transgender have the same interest in participating in the party-list system on the same basis as other political parties similarly situated. State intrusion in this case is equally burdensome. Hence, laws of general application should apply with equal force to LGBTs, and they deserve to participate in the party-list system on the same basis as other marginalized and under-represented sectors.

We are not blind to the fact that, through the years, homosexual conduct, and perhaps homosexuals themselves, have borne the brunt of societal disapproval. It is not difficult to imagine the reasons behind this censure - religious beliefs, convictions about the preservation of marriage, family, and procreation, even dislike or distrust of homosexuals themselves and their perceived lifestyle. Nonetheless, we recall that the Philippines has not seen fit to criminalize homosexual conduct. Evidently, therefore, these "generally accepted public morals" have not been convincingly transplanted into the realm of law.[29]
                                 xxx                                   xxx                           xxxx

Our Decision today is fully in accord with our international obligations to protect and promote human rights. In particular, we explicitly recognize the principle of non-discrimination as it relates to the right to electoral participation, enunciated in the UDHR and the ICCPR.

The principle of non-discrimination is laid out in Article 26 of the ICCPR...

In this context, the principle of non-discrimination requires that laws of general application relating to elections be applied equally to all persons, regardless of sexual orientation. Although sexual orientation is not specifically enumerated as a status or ratio for discrimination in Article 26 of the ICCPR, the ICCPR Human Rights Committee has opined that the reference to "sex" in Article 26 should be construed to include "sexual orientation."[48] Additionally, a variety of United Nations bodies have declared discrimination on the basis of sexual orientation to be prohibited under various international agreements.[49]
                                  xxx                                   xxx                           xxxx

We stress, however, that although this Court stands willing to assume the responsibility of giving effect to the Philippines' international law obligations, the blanket invocation of international law is not the panacea for all social ills. We refer now to the petitioner's invocation of the Yogyakarta Principles (the Application of International Human Rights Law In Relation to Sexual Orientation and Gender Identity),[51] which petitioner declares to reflect binding principles of international law.

At this time, we are not prepared to declare that these Yogyakarta Principles contain norms that are obligatory on the Philippines. There are declarations and obligations outlined in said Principles which are not reflective of the current state of international law, and do not find basis in any of the sources of international law enumerated under Article 38(1) of the Statute of the International Court of Justice.[52] Petitioner has not undertaken any objective and rigorous analysis of these alleged principles of international law to ascertain their true status.

We also hasten to add that not everything that society - or a certain segment of society - wants or demands is automatically a human right. This is not an arbitrary human intervention that may be added to or subtracted from at will. It is unfortunate that much of what passes for human rights today is a much broader context of needs that identifies many social desires as rights in order to further claims that international law obliges states to sanction these innovations. This has the effect of diluting real human rights, and is a result of the notion that if "wants" are couched in "rights" language, then they are no longer controversial.

Using even the most liberal of lenses, these Yogyakarta Principles, consisting of a declaration formulated by various international law professors, are - at best - de lege ferenda - and do not constitute binding obligations on the Philippines. Indeed, so much of contemporary international law is characterized by the "soft law" nomenclature, i.e., international law is full of principles that promote international cooperation, harmony, and respect for human rights, most of which amount to no more than well-meaning desires, without the support of either State practice or opinio juris.[53]


The appellant of final appeal, who was born to a father who is a Japanese citizen and a mother who has nationality of the Republic of the Philippines, a couple having no legal marital relationship, submitted a notification for acquisition of Japanese nationality to the Ministry of Justice in 2003 on the grounds that he/she was acknowledged by the father after birth, but the minister determined that the appellant had not acquired Japanese nationality due to the failure to meet the requirements for acquisition of Japanese nationality. In this case, the appellant sued the appellee, seeking a declaration that the appellant has Japanese nationality.

Court ruling

In addition, it seems that other states are moving toward scrapping discriminatory treatment by law against children born out of wedlock, and in fact, the International Covenant on Civil and Political Rights and the Convention on the Rights of the Child, which Japan has ratified, also contain such provisions to the effect that children shall not be subject to discrimination of any kind because of birth. Furthermore, after the provision of Article 3, para.1 of the Nationality Act was established, many states that had previously required legitimation for granting nationality to children born out of wedlock to fathers who are their citizens have revised their laws in order to grant nationality if, and without any other requirement, it is found that the father-child relationship with their citizens is established as a result of acknowledgement.

                                           xxx                                                 xxx                                         xxx
In light of these changes in social and other circumstances at home and abroad, we should say that it is now difficult to find any reasonable relevance between the policy of maintaining legitimation as a requirement to be satisfied when acquiring Japanese nationality by making a notification after birth, and the aforementioned legislative purpose.
                                           xxx                                                 xxx                                         xxx
Considering that acquisition of Japanese nationality means a lot to people in order to enjoy the guarantee of fundamental human rights and other benefits in Japan, we should say that the disadvantages that children would suffer from the above-mentioned discriminatory treatment cannot be overlooked, and we must say that we can hardly find reasonable relevance between such discriminatory treatment and the aforementioned legislative purpose. In particular, between children acknowledged by Japanese fathers before birth and those acknowledged after birth, it is difficult to find a difference in general in terms of the level of the tie with Japanese society developed through their family life with Japanese fathers, and it is also difficult to explain the reasonableness of the policy of applying the above-mentioned distinction when granting Japanese nationality from the perspective of the level of the tie with Japanese society. In addition, under the Nationality Act that adopts the principle of jus sanguinis, if, despite the fact that children born out of wedlock to Japanese mothers can acquire Japanese nationality by birth, children born out of wedlock who satisfy only the requirement of being acknowledged by Japanese fathers after birth are not allowed to acquire Japanese nationality even by making a notification, we should say that such a situation is somewhat inconsistent with the basic stance of the Act from the perspective of gender equality.
                                           xxx                                                 xxx                                         xxx
For the reasons stated above, we should conclude that although the legislative purpose itself from which the Distinction is derived has a reasonable basis, reasonable relevance between the Distinction and the legislative purpose no longer exists due to the changes in social and other circumstances at home and abroad, and today, the provision of Article 3, para.1 of the Nationality Act imposes an unreasonable and excessive requirement for acquiring Japanese nationality. Moreover, since the Distinction involves another distinction described in (2)(d) above, we must say that it causes a child born out of wedlock who satisfies only the requirement of being acknowledged by a Japanese father after birth to suffer considerably disadvantageous discriminatory treatment in acquiring Japanese nationality, and even if we take into consideration the discretionary power vested in the legislative body when specifying requirements for acquisition of Japanese nationality, we can no longer find any reasonable relevance between the consequence arising from the Distinction and the aforementioned legislative purpose.
                                           xxx                                                 xxx                                         xxx
Therefore, we must conclude that at the time mentioned above, the Distinction amounted to unreasonable discrimination, and the provision of Article 3, para.1 of the Nationality Act was in violation of Article 14, para.1 of the Constitution in that the provision caused the Distinction.


The  respondents  were  charged  with  having committed  buggery  with  each  other  otherwise than  in  private,  contrary  to  s  118F(1)  of  the Crimes Ordinance (Cap  200).  The CA upheld the decision of the Magistrate that the provision was unconstitutional  and  dismissed  the  appeal.  The appellant  appealed  to  CFA [Court of Final Appeal]  which  certified  that two questions of law were of great and general importance:(1)   Was s 118F(1) discriminatory to the extent that it was inconsistent with the BL and the BoR?(2)   What was the proper order to be made when the charge against the defendant was found to be unconstitutional?

Court ruling

The CFA was of the view that equality before the law was a fundamental human right.  Equality was the antithesis of discrimination. The constitutional right to equality was in essence the right not to be discriminated against.  It was guaranteed by BL 25 and art 22 of the BoR (corresponding to art 26 of the ICCPR).

Discrimination on the ground of sexual orientation would plainly be unconstitutional under both BL 25 and art 22 of the BoR in which sexual orientation was within the phrase “other status”.

The constitutional provisions

Whether s 118F(1) was discriminatory and unconstitutional The CFA held that s 118F(1) in criminalizing only homosexual  buggery  otherwise  than  in  private plainly  gave  rise  to  differential  treatment  on  the ground of sexual orientation which required to be justified.    The  first  stage  of  the  justification  test was to consider whether the differential treatment pursued  a  legitimate  aim.    For  this  purpose,  a genuine need for the difference in treatment had to be made out.  That need could not be established from the mere act of legislative enactment. In the present case, no genuine need for the difference in treatment had been shown. That being so, it had not been established that the differential treatment in question pursued any legitimate aim.  The matter failed at the first stage of the justification test.  In enacting a package of measures to reform the law governing homosexual conduct, the Legislature was entitled to decide whether it was necessary to enact a specific criminal offence to protect the community against sexual conduct in public which outraged public decency.  But in legislating for such a specific offence, it could not do so in a discriminatory way.  Section 118F(1) was a discriminatory law.  It only criminalized homosexual buggery otherwise than in private but did not criminalize heterosexuals for the same or comparable conduct when there was no genuine need for the differential treatment.  The courts had the duty of enforcing the constitutional guarantee of equality before the law and of ensuring protection against discriminatory law.  Accordingly, s 118F(1) was discriminatory and infringed the right to equality and was unconstitutional.



(NOTE: Although this is not a Court of Final Appeal case (the highest court in Hong Kong), the decision in this case seems to be accepted in Hong Kong.)

The plaintiff was a homosexual man aged 20. He challenged the constitutionality of parts of the criminal law as being discriminatory on the basis of sexual orientation. The provisions in question mandated that, among other things, if two men committed buggery (sodomy) with each other and one or both of them were under the age of 21, then both would be guilty. The state could then sentence them to life imprisonment, or any duration up to life imprisonment. The Court of Appeal held that this provision was unconstitutional for being discriminatory against homosexuals. It noted that when two consenting heterosexual people had vaginal intercourse, no criminal liability existed so long as both parties were above the age of sixteen. Homosexual males between sixteen and twenty-one, however, could be convicted of a crime. Thus, the CA held, the provision in question was discriminatory against male homosexuals.

In so holding, the CA relied upon international human rights norms and the European Convention on Human Rights, as well as the Canadian Charter of Rights and Freedoms. It cited the anti-discrimination cases of Toonen v. Australia, UN Human Rights Committee, Communication No. 488 of 1992, 112 I.L.R. 328, and R. v. M., [1995] 82 O.A.C. 68 (Can.). It also cited the European Court of Human Rights case of L & V v. Austria, 36 Eur. H.R. Rep. 55 (2003), the U.S. Supreme Court case of Lawrence v. Texas, 539 U.S. 558, 584 (2003), and the Constitutional Court of South Africa case of Nat'l Coalition for Gays & Lesbian Equal. v. Minister of Justice 1998 (6) B.H.R.C. 127 (S. Afr.).

(found in "International Human Rights Law and Domestic Constitutional Law: Internationalisation of Constitutional Law in Hong Kong" by Albert H.Y. Chen, pp. 21-23)

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Smt. Hanuffa Khatoon, a Bangladeshi, was repeatedly raped by train personnel in India. She was first raped in the women's room in the train station, and later in a hotel room by other train personnel.

A petition was file on her behalf by an Indian woman lawyer praying for the train company to be held liable for compensating Smt. Hanuffa Khatoon.

Court ruling

 In the instant case, it is not a mere matter of violation of an ordinary right of a person but the violation of Fundamental Rights which is involved. Smt. Hanuffa Khatoon was a victim of rape. This Court in Bodhisatwa vs. Ms. Subdhra Chakroborty (1996) 1 SCC 490 has held "rape" as an offence which is violative of the Fundamental Right of a person guaranteed under Article 21 of the Constitution. The Court observed as under :

"Rape is a crime not only against the person of a woman, it is a crime against the entire society. It destroys the entire psychology of a woman and pushes her into deep emotional crisis. Rape is therefore the most hated crime. It is a crime against basic human rights and is violative of the victims most cherished right, namely, right to life which includes right to live with human dignity contained in Article 21."
                                  xxx                                                               xxx                                                         xxx

The International Covenants and Declarations as adopted by the United Nations have to be respected by all signatory States and the meaning given to the above words in those Declarations and Covenants have to be such as would help in effective implementation of those Rights. The applicability of the Universal Declaration of Human Rights and principles thereof may have to be read, if need be, into the domestic jurisprudence. Lord Diplock in Salomon v. Commissioners of Customs and Excise [1996] 3 All ER 871 said that there is a, prima facie, presumption that Parliament does not intend to act in breach of international law, including specfic treaty obligations. So also, Lord Bridge in Brind v. Secretary of State for the Home Department [1991] 1 All ER 720, observed that it was well settled that, in construing any provision in domestic legislation which was ambiguous in the sense that it was capable of a meaning which either conforms to or conflicts with the International Convention, the courts would presume that Parliament intended to legislate in conformity with the Convention and not in conflict with it.
                                      xxx                                                               xxx                                                       xxx

It was next contended by the learned counsel appearing on behalf of the appellants, that Smt. Hanuffa Khatoon was a foreign national and, therefore, no relief under Public Law could be granted to her as there was no violation of the Fundamental Rights available under the Constitution. It was contended that the Fundamental Rights in Part III of the Constitution are available only to citizens of this country and since Smt. Hanuffa Khatoon was a Bangladeshi national, she cannot complain of the violation of Fundamental Rights and on that basis she cannot be granted any relief. This argument must also fail for two reasons; first, on the ground of Domestic Jurisprudence based on Constitutional provisions and secondly, on the ground of Human Rights Jurisprudence based on the Universal Declaration of Human Rights, 1948, which has the international recognition as the "Moral Code of Conduct" having been adopted by the General Assembly of the United Nations. We will come to the question of Domestic Jurisprudence a little later as we intend to first consider the principles and objects behind Universal Declaration of Human Rights, 1948, as adopted and proclaimed by the United Nations General Assembly Resolution of 10th December, 1948.

Apart from the above, the General Assembly, also while adopting the Declaration on the Elimination of Violence against Women, by its Resolution dated 20th December, 1993, observed in Article 1 that, "violence against women" means any act of gender-based violence that results in, or is likely to result in, physical, sexual or psychological harm or suffering to women, including threats of such acts, coercion or arbitrary deprivation of liberty, whether occurring in public or in private life."

Our Constitution guarantees all the basic and fundamental human rights set out in the Universal Declaration of Human Rights, 1948, to its citizens and other persons. The chapter dealing with the Fundamental Rights is contained in Part III of the Constitution. The purpose of this Part is to safeguard the basic human rights from the vicissitudes of political controversy and to place them beyond the reach of the political parties who, by virtue of their majority, may come to form the Govt. at the Centre or in the State.