Equal Protection

(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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The two male defendants were found parked in a private car beside of a public road. They were charged with committing buggery (sodomy) in private. For this crime, there was no equivalent statutory offense for heterosexual vaginal intercourse. Nor was there an equivalent statutory offense for heterosexual buggery, nor for sexual conduct between lesbians otherwise than in private.

The Court of Final Appeal held that the criminal offense provision was unconstitutional for violating the right to equality (specifically, against male homosexuals’ right to equality). In so holding, the Chief Justice cited Article 22 of the Bill of Rights, which was domestic law and a copy of Article 26 of the ICCPR. Justice Bokhary cited extensively international legal materials when he said that “[i]n the field of human rights, municipal law has often walked in the footsteps of international law – and may in some jurisdictions have caught up with or even overtaken it.”

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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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The plaintiff challenged a provision of the Japanese legal code. The provision stated that the intestate share guaranteed by Japanese law to an illegitimate child shall be one-half of the share guaranteed to a legitimate child. The Supreme Court of Japan ruled that this was constitutional. Although the Court cited the ICCPR, it nevertheless seemed to decide in opposition to it, in particular Article 24. The decision was made with ten justices in the majority and five in the dissent. The five dissenting justices asserted the importance of Article 26 of the ICCPR. They opined that the Court was divided over how heavy the legal weight of international human rights treaties should be in the Japanese legal system.

(found in ''Incomplete Revolutions and Not So Alien Transplants: the Japanese Constitution and Human Rights'' by Sylvia Brown Hamano, 1 U. PA. J. CONST. L. 415, 477)

A non-Japanese mother gave birth in Japan to a child. The father was a Japanese national. He acknowledged as such only after the child was born, and the child was born out of wedlock. According to the Nationality Act, such a child was not afforded Japanese nationality. The Supreme Court of Japan declared this unconstitutional. In so doing, the Court cited the ICCPR and CRC. The Court also referenced the worldwide movement to dispel discrimination against illegitimate children. Since the trend worldwide was to rule in favor of nationality for such children, the Court said, the Court could take that into account.

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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.

A Bangladeshi woman was gang raped by railroad employees. She was then raped again by her rescuer. The Supreme Court rejected the argument that the woman, as a foreigner, was not afforded certain constitutional protections. Some provisions of the Indian Constitution refer to ''citizens'' while others refer to ''persons''. Regardless, the Court held that ''life'' as used in Article 21 must be interpreted consistently with the Universal Declaration of Human Rights. Thus, Article 21 protections protect both citizens and non-citizens. Since rape is a violation of Article 21's fundamental right to life, the victim was entitled to compensation.

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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The Supreme Court ruled in favor of allowing the participation of Ang Ladlad as a party list group representing the LGBT community in elections.

"Other jurisdictions have gone so far as to categorically rule that even overwhelming public perception that homosexual conduct violates public morality does not justify criminalizing same-sex conduct. European and United Nations judicial decisions have ruled in favor of gay rights claimants on both privacy and equality grounds, citing general privacy and equal protection provisions in foreign and international texts. To the extent that there is much to learn from other jurisdictions that have reflected on the issues we face here, such jurisprudence is certainly illuminating. These foreign authorities, while not formally binding on Philippine courts, may nevertheless have persuasive influence on the Court’s analysis . . .

In an age that has seen international law evolve geometrically in scope and promise, international human rights law, in particular, has grown dynamically in its attempt to bring about a more just and humane world order. For individuals and groups struggling with inadequate structural and governmental support, international human rights norms are particularly significant, and should be effectively enforced in domestic legal systems so that such norms may become actual, rather than ideal, standards of conduct. 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 . . .

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), 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. 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. As a final note, we cannot help but observe that the social issues presented by this case are emotionally charged, societal attitudes are in flux, even the psychiatric and religious communities are divided in opinion. This Court’s role is not to impose its own view of acceptable behavior. Rather, it is to apply the Constitution and laws as best as it can, uninfluenced by public opinion, and confident in the knowledge that our democracy is resilient enough to withstand vigorous debate."

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