Constitutional Equality and Executive Action – A Comparative Perspective

The right to equal protection is a common feature of written constitutions. Interesting questions arise, however, when one seeks to apply the constitutional guarantee of equal protection to discrete executive acts. The subject of such acts has necessarily been singled out from a multitude of possibilities. To determine whether a differentiation has occurred such that like cases have not been treated alike, to what or whom should this subject be compared? This question becomes especially significant when one notes that whether the equal protection guarantee is triggered at all depends on the answer to this question. This paper will study how courts in Hong Kong, Canada, and Singapore have sought to resolve this difficulty. The paper will suggest that three categories of approaches can be discerned in these jurisdictions: formal, substantive, and no comparator approaches, and will argue that a no comparator approach represents the best approach to this difficulty.