9. RIGHT TO EQUALITY AND MARGIN OF DISCRETION
1. CONTENT OF EQUALITY
v Universally accepted, but a difficult right to define
v Central to reform movements of the 18th, 19th and 20th centuries.
Ø Marxism and his belief that social classes should be gotten rid of
Ø Feminism – started in the late 19th century, particularly in the US and the UK
§ Central idea: the sexes are equal – men and women are equal
Ø Anti-colonial movements are focused on equality. After WWIII there was a wave of anti-colonialism
Ø Democracy at the very core level: everyone has an equal voice in self-government, no matter how poor or
how rich.
v Paradox of Inequality
Ø Persistent – no matter how much we try and how much progress has been made, there is still inequality
Ø Law’s limit
Different Concepts of Equality
Equality of Outcome (Philosophical Concept of Equality) (Socialist Idea)
v Similar control over material resources, goods and services – Roughly equal incomes, wealth and power
v Requires redistribution (taking property away from rich and giving it to the poor)
Limitation:
v There is a right of private property (difficult to achieve because government can’t buy it and redistribute to the
population)
v What should outcome be based on? (Sill? Effort? Need?) (too many things to take into account)
v There is no incentive to work – you just have to sit home and you get the same amount of work
v Efficiency – Market economy will allow people to pick a certain job based on your skill level and that is efficient –
if you are more interested in being a lawyer because of your sill level, you can be in a lawyer, but in a pure socialist
country, EVERYONE can be a lawyer.
Equality of Opportunity (Philosophical Concept of Equality) (What Countries aspire for)
v Equal access to opportunities to acquire resources – you don’t get the same resources – you just have ACCESS
v Education and employment free from arbitrary discrimination
v Dominant concept reflected in law
v Intertwined with equality of outcome – our opportunities strongly influenced by outcomes wee have at birth –
the opportunities are strongly influenced by external factors
v May require positive measures to level the playing field (e.g., preferential treatment for some lower class
individuals)
Formal Equality (Legal Concept of Equality)
v Treat likes alike (similar to equality of opportunity)
v Legal manifestations – prohibits direct discrimination
v Direct discrimination – treating a person less favourably based on irrelevant characteristics (e.g., limiting voting
rights based on gender or race)
v Indirect discrimination – for example, where you have a staircase built for access but forget about people who use
wheelchairs and can’t use the staircase
Shortcoming/Drawbacks.
v Identical treatment can reproduce inequality
v Does not question how the norm is defined.
Ø What we consider standards or normal might reflect historical advantages rather than a moral fact (e.g., men
have historically dominated the workplace, which means that norms about work hours and how offices are
designed have men in mind)
Ø Limited understanding of ‘merit’ – stereotypes effect how people are evaluated and how skills and capabilities
are perceived.
Substantive Equality (Legal Concept of Equality)
v Takes into account socio-political structures, and role of status within them
v Better at recognising indirect discrimination (e.g., a “neutral” ban on head covering may indirectly discriminate
against certain religious groups)
v Allows differential treatment in some circumstances (e.g., Muslim women can wear the veil, Sikh men can wear
turbans because freedom of religion must be upheld)
v Recognises that established norms might reflect needs and characteristics of historically advantaged groups. (so
historical norms are not sacred) (focuses on institutional changes rather than individual conformity) (diversity as
valuable)
Chloe T 35
, 2. EQUALITY IN HONG KONG
v Is equality particularly difficult in Hong Kong?
Ø History – capitalist system used to justify inequality
Ø Elites in government
Ø Resistance to social welfare.
Constitutional Provisions: Basic Law
25 All Hong Kong residents shall be equal before the law.
Constitutional Provisions: Bill of Rights Ordinance
1 Entitlement to rights without distinction
1) The rights recognized in this Bill of Rights shall be enjoyed without distinction of any kind, such as race,
colour, sex, language, religion, political or other opinion, national or social origin, property, birth or other
status.
2) Men and women shall have an equal right to the enjoyment of all civil and political rights set forth in this
Bill of Rights.
4 No Slavery or Servitude
1) No one shall be held in slavery; slavery and the slave-trade in all their forms shall be prohibited.
2) No one shall be held in servitude.
3) .
a) No one shall be required to perform forced or compulsory labour.
b) For the purpose of this paragraph the term “forced or compulsory labour” shall not include—
i) any work or service normally required of a person who is under detention in consequence of a
lawful order of a court, or of a person during conditional release from such detention;
ii) any service of a military character and, where conscientious objection is recognized, any national
service required by law of conscientious objectors;
iii) any service exacted in cases of emergency or calamity threatening the life or well-being of the
community;
iv) any work or service which forms part of normal civil obligations.
10 Equality before courts and right to fair and public hearing
All persons shall be equal before the courts and tribunals. In the determination of any criminal charge against
him, or of his rights and obligations in a suit at law, everyone shall be entitled to a fair and public hearing by a
competent, independent and impartial tribunal established by law. The press and the public may be excluded
from all or part of a trial for reasons of morals, public order (ordre public) or national security in a democratic
society, or when the interest of the private lives of the parties so requires, or to the extent strictly necessary
in the opinion of the court in special circumstances where publicity would prejudice the interests of justice;
but any judgment rendered in a criminal case or in a suit at law shall be made public except where the interest
of juvenile persons otherwise requires or the proceedings concern matrimonial disputes or the guardianship
of children.
13 Right to recognition as person before law
Everyone shall have the right to recognition everywhere as a person before the law.
19 Rights in respect of marriage and family
1) The family is the natural and fundamental group unit of society and is entitled to protection by society
and the State.
2) The right of men and women of marriageable age to marry and to found a family shall be recognized.
3) No marriage shall be entered into without the free and full consent of the intending spouses.
4) Spouses shall have equal rights and responsibilities as to marriage, during marriage and at its dissolution.
In the case of dissolution, provision shall be made for the necessary protection of any children.
20 Rights of children
1) Every child shall have, without any discrimination as to race, colour, sex, language, religion, national or
social origin, property or birth, the right to such measures of protection as are required by his status as a
minor, on the part of his family, society and the State.
2) Every child shall be registered immediately after birth and shall have a name.
22 Equality before and equal protection of law
All persons are equal before the law and are entitled without any discrimination to the equal protection of the
law. In this respect, the law shall prohibit any discrimination and guarantee to all persons equal and effective
protection against discrimination on any ground such as race, colour, sex, language, religion, political or other
opinion, national or social origin, property, birth or other status.
23 Rights of minorities
Persons belonging to ethnic, religious or linguistic minorities shall not be denied the right, in community with
the other members of their group, to enjoy their own culture, to profess and practise their own religion, or to
use their own language.
Chloe T 36
1. CONTENT OF EQUALITY
v Universally accepted, but a difficult right to define
v Central to reform movements of the 18th, 19th and 20th centuries.
Ø Marxism and his belief that social classes should be gotten rid of
Ø Feminism – started in the late 19th century, particularly in the US and the UK
§ Central idea: the sexes are equal – men and women are equal
Ø Anti-colonial movements are focused on equality. After WWIII there was a wave of anti-colonialism
Ø Democracy at the very core level: everyone has an equal voice in self-government, no matter how poor or
how rich.
v Paradox of Inequality
Ø Persistent – no matter how much we try and how much progress has been made, there is still inequality
Ø Law’s limit
Different Concepts of Equality
Equality of Outcome (Philosophical Concept of Equality) (Socialist Idea)
v Similar control over material resources, goods and services – Roughly equal incomes, wealth and power
v Requires redistribution (taking property away from rich and giving it to the poor)
Limitation:
v There is a right of private property (difficult to achieve because government can’t buy it and redistribute to the
population)
v What should outcome be based on? (Sill? Effort? Need?) (too many things to take into account)
v There is no incentive to work – you just have to sit home and you get the same amount of work
v Efficiency – Market economy will allow people to pick a certain job based on your skill level and that is efficient –
if you are more interested in being a lawyer because of your sill level, you can be in a lawyer, but in a pure socialist
country, EVERYONE can be a lawyer.
Equality of Opportunity (Philosophical Concept of Equality) (What Countries aspire for)
v Equal access to opportunities to acquire resources – you don’t get the same resources – you just have ACCESS
v Education and employment free from arbitrary discrimination
v Dominant concept reflected in law
v Intertwined with equality of outcome – our opportunities strongly influenced by outcomes wee have at birth –
the opportunities are strongly influenced by external factors
v May require positive measures to level the playing field (e.g., preferential treatment for some lower class
individuals)
Formal Equality (Legal Concept of Equality)
v Treat likes alike (similar to equality of opportunity)
v Legal manifestations – prohibits direct discrimination
v Direct discrimination – treating a person less favourably based on irrelevant characteristics (e.g., limiting voting
rights based on gender or race)
v Indirect discrimination – for example, where you have a staircase built for access but forget about people who use
wheelchairs and can’t use the staircase
Shortcoming/Drawbacks.
v Identical treatment can reproduce inequality
v Does not question how the norm is defined.
Ø What we consider standards or normal might reflect historical advantages rather than a moral fact (e.g., men
have historically dominated the workplace, which means that norms about work hours and how offices are
designed have men in mind)
Ø Limited understanding of ‘merit’ – stereotypes effect how people are evaluated and how skills and capabilities
are perceived.
Substantive Equality (Legal Concept of Equality)
v Takes into account socio-political structures, and role of status within them
v Better at recognising indirect discrimination (e.g., a “neutral” ban on head covering may indirectly discriminate
against certain religious groups)
v Allows differential treatment in some circumstances (e.g., Muslim women can wear the veil, Sikh men can wear
turbans because freedom of religion must be upheld)
v Recognises that established norms might reflect needs and characteristics of historically advantaged groups. (so
historical norms are not sacred) (focuses on institutional changes rather than individual conformity) (diversity as
valuable)
Chloe T 35
, 2. EQUALITY IN HONG KONG
v Is equality particularly difficult in Hong Kong?
Ø History – capitalist system used to justify inequality
Ø Elites in government
Ø Resistance to social welfare.
Constitutional Provisions: Basic Law
25 All Hong Kong residents shall be equal before the law.
Constitutional Provisions: Bill of Rights Ordinance
1 Entitlement to rights without distinction
1) The rights recognized in this Bill of Rights shall be enjoyed without distinction of any kind, such as race,
colour, sex, language, religion, political or other opinion, national or social origin, property, birth or other
status.
2) Men and women shall have an equal right to the enjoyment of all civil and political rights set forth in this
Bill of Rights.
4 No Slavery or Servitude
1) No one shall be held in slavery; slavery and the slave-trade in all their forms shall be prohibited.
2) No one shall be held in servitude.
3) .
a) No one shall be required to perform forced or compulsory labour.
b) For the purpose of this paragraph the term “forced or compulsory labour” shall not include—
i) any work or service normally required of a person who is under detention in consequence of a
lawful order of a court, or of a person during conditional release from such detention;
ii) any service of a military character and, where conscientious objection is recognized, any national
service required by law of conscientious objectors;
iii) any service exacted in cases of emergency or calamity threatening the life or well-being of the
community;
iv) any work or service which forms part of normal civil obligations.
10 Equality before courts and right to fair and public hearing
All persons shall be equal before the courts and tribunals. In the determination of any criminal charge against
him, or of his rights and obligations in a suit at law, everyone shall be entitled to a fair and public hearing by a
competent, independent and impartial tribunal established by law. The press and the public may be excluded
from all or part of a trial for reasons of morals, public order (ordre public) or national security in a democratic
society, or when the interest of the private lives of the parties so requires, or to the extent strictly necessary
in the opinion of the court in special circumstances where publicity would prejudice the interests of justice;
but any judgment rendered in a criminal case or in a suit at law shall be made public except where the interest
of juvenile persons otherwise requires or the proceedings concern matrimonial disputes or the guardianship
of children.
13 Right to recognition as person before law
Everyone shall have the right to recognition everywhere as a person before the law.
19 Rights in respect of marriage and family
1) The family is the natural and fundamental group unit of society and is entitled to protection by society
and the State.
2) The right of men and women of marriageable age to marry and to found a family shall be recognized.
3) No marriage shall be entered into without the free and full consent of the intending spouses.
4) Spouses shall have equal rights and responsibilities as to marriage, during marriage and at its dissolution.
In the case of dissolution, provision shall be made for the necessary protection of any children.
20 Rights of children
1) Every child shall have, without any discrimination as to race, colour, sex, language, religion, national or
social origin, property or birth, the right to such measures of protection as are required by his status as a
minor, on the part of his family, society and the State.
2) Every child shall be registered immediately after birth and shall have a name.
22 Equality before and equal protection of law
All persons are equal before the law and are entitled without any discrimination to the equal protection of the
law. In this respect, the law shall prohibit any discrimination and guarantee to all persons equal and effective
protection against discrimination on any ground such as race, colour, sex, language, religion, political or other
opinion, national or social origin, property, birth or other status.
23 Rights of minorities
Persons belonging to ethnic, religious or linguistic minorities shall not be denied the right, in community with
the other members of their group, to enjoy their own culture, to profess and practise their own religion, or to
use their own language.
Chloe T 36
