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O’Regan, Kate; Khosla, Madhav --- "Equality in Asia" [2014] ELECD 144; in Dixon, Rosalind; Ginsburg, Tom (eds), "Comparative Constitutional Law in Asia" (Edward Elgar Publishing, 2014) 277

Book Title: Comparative Constitutional Law in Asia

Editor(s): Dixon, Rosalind; Ginsburg, Tom

Publisher: Edward Elgar Publishing

ISBN (hard cover): 9781781002698

Section: Chapter 11

Section Title: Equality in Asia

Author(s): O’Regan, Kate; Khosla, Madhav

Number of pages: 39

Abstract/Description:

If the right to equality promises more than it can ever deliver, it is also a right whose text and application reflects the history of the society in which it applies. The right to equality is thus particularly challenging for comparative law. Although it is found in nearly every modern democratic constitution, the formulation, interpretation and application of the right varies markedly and it accordingly presents acutely difficult questions for a study such as this. The difficulties not only arise from the differences in historical, socio-economic and political context, but also from differing conceptions of equality itself. In this brief chapter we shall identify some of the difficult questions that arise in developing an equality jurisprudence and then consider how different legal systems in Asia (India, Malaysia and Japan) have approached these questions. At the outset, we should acknowledge that because each of the three jurisdiction's response to equality is in significant ways dependent on the constitutional text in question (and the legislative framework) as well as each jurisdiction's social and political history, understanding the equality jurisprudence of any one of the jurisdictions will generally require some understanding of the social and economic circumstances of that society. Comparative analysis is not futile in this field, but it must be approached with circumspection (see the useful discussions in Kahn-Freund 1974; Watson 1976; 1978).