A Study On Judicial Application Of Right To Equality In Constitution

Equality is a common ideal for human beings and has been adopted by many countries'Constitutions all over the world and some international conventions on human rights. Entering the 21st century, China is completing the rule of law and establishing the Constitutionalism step by step. In 2004,the Constitution was amended with the clause of "respect and safeguard of human rights", from which it can be inferred to include right to equality. The right to equality is gradually playing an important role in legal protection of citizens'equal rights and providing them prevention from the government's undue behavior. With more and more cases about right to equality emerging, the clause of equal protection in Constitution has been challenged by common people. Due to lack of manipulative characteristic, right to equality can not be applied to concrete cases. Meanwhile, unlike western countries built on mature constitutionalism, our Constitution can not protect citizens'rights effectively and does harm to its authority without a series of systems such as judicial review, private application of Constitution, Constitutional interpretation, and balancing public policy which has been taken as a necessary judicial technique for court. Chapterâ… is about basic theory of judicial application of right to quality. This part discusses the meaning, characteristics and significance of judicial application of right to equality. Right to equality in constitution embodies the positive characteristic of right to equality in natural law. Those resources from western legal philosophy on right to equality also provide us a deep insight into right to equality in Constitution. During the process of constitutionalism shifting from modern era to current era, the meaning of right to equality has been richened gradually. The current idea of right to equality focuses on the idea of "essential equality"quite different from the idea of "formal equality"of modern era, which means not only the "equality in enforcement"but "equality in legislation". Finally, the judicial department should take the responsibility for judicial application of right to equality in politically organized society as a neutral role in balances of powers. The characteristics of judicial application of right to equality embody technique, policy-making and authority. Technique is related to those systems such as judicial review, private application of constitution and constitutional interpretation. In terms of policy-making, the role of court also is important as a policy-maker in dealing with the judicial application of right to equality to some extent. For example, since sixties of 20th century America has issued and enforced the policy, "affirmative action", the court has to balance the policy dealing with cases about right to equality. Authority refers to the neutrality, justice and finality of the court's decisions on cases of right to equality. One of significances of judicial application is the realization of equal protection of common people rights. It is also helpful for establishment of authority of Constitution. Without the remedy for right to equality at the level of constitution, the constitutional authority would be left no room. There still another is embodiment of the transformation of Constitution. During judicial application of right to equality,the right to equality has changed from abstract to be rich and mature. The characteristic of right to equality has transformed from "formal"to "essential", which not only embodies the motive of constitution transform but direction of protection of human rights under the constitutionalism. Taking judicial practice of the first clause of Fourteenth Amendment in American Constitution as an example, it has reflected the role of first clause of Fourteenth Amendment in abolishing of the principle of "separate and equal", pushing the equality between men and women as wellas guaranteeing the homosexual right movement. In chapterâ…¡, this part illustrates the realistic requirement of the judicial application of right to equality in China. The judicial application of right to equality is a contemporary issue in China. Since there are a lot of cases in which citizens turn to the clause of right to equality emerged in mainland of china, it is necessary for the court to apply the clause of right to equality into resolving all kinds of cases. Due to China's lack of theories and practices concerning this issue, the court can not resolve these cases accordingly at the level of constitutionalism. The court has to deal with these cases by quoting the clause of equal protection in Constitution at the level of "declaration"the fundamental rights. At the same time, the judicial practice has provided the feasibility for the judicial application of the right to equality. Without the judicial review, our Chinese Supreme Court has tried the judicial application of right to quality by adopting the "Answer [Pi-Fu]". The academic has had a hot debate on the judicial application of right to equality. Besides, there is a gradual development in judicial practice of right to equality. For example, JiangTao case, called by the media "first case about the right of equality in Constitution". This section of this article also gives a refection of the debate on the "judiciary of constitution". Before China has established mature constitutionalism, this debate on the judiciary of constitution is only a "rehears"without suspicion of legitimacy of existed system. At most, it is just an attempt for "judiciary of constitution". Although the insufficiency of theory and system, it does matter that scholars and judges can talk about the judicial application of right to equality. Chapter â…¢of this article introduces us several important systems such as the judicial review, private application of constitution and constitutional interpretation. This part has learned from the experiences of American and German theories and institutions on judicial review, private application of right to equality and constitutional interpretation.Firstly, in concrete cases on right to equality, it is necessary to review on legislation or governments'misbehavior. Both of the "proportion principle"in German public law and the "three-tiered equal protection scrutiny"system in America provide us good references and are helpful to the establishment of judicial review system in future China. Secondly, considering the big gap between public law and private law, how to deal with those cases concerning right to equality is a problem unavoidable for courts in practice. According to the traditional public law, fundamental rights protect citizens from the evasions of improper governments'behaviors having nothing to do with private arena. However, with the development of the economy and civic politics, there are more and more powerful enterprises and associations coming out, which may infringe citizens'right of equality. For instance, in Taiwan area, in some civil cases, "being single"clause has always been stipulated in employment contracts and therefore infringed the citizens'right to equality. However, those cases are concerning on judicial application of right to equality to private law. Although it is a hot debate happening even in the public law field of German and US, it is very helpful for China to study on this problem. Taking German "theory of fundamental rights effect of third party"and American "theory of state action"as examples, it is advised for China that right to equality embody the "objective order of values"in Constitution and those values should be inducted into the field of private law by way of general principles such as "public order and moral". Those general clauses in the civil law should bridge the gap between constitution law and private law, transforming those "objective order of values"into private law. Thirdly, in terms of judicial application of right to equality in court, it is necessary to make use of constitutional interpretation of right to equality. As time goes on, there are a lots of new cases concerning right to equality emerging, such as homosexual, reverse discrimination resulted from affirmative action and so on. Right to equality would be more interpretativeforceful than before dealing with new cases aimed by constitutional interpretation. Focusing on all kinds of theories of constitutional interpretation, especially on right to equality in contemporary American, "originalism"and Dworkin's "moral reading of constitution"are two mostly influent methods in theory and practice. "Origianlism"focuses on the "original intent"of the Framers in the late 18th century. Dworkin's "moral reading of constitution"focuses on the "politically morality of the Constitution". Based on the comparison of the two different theories, this part illustrates the totally different understandings of right to equality in Constitution and reconciliation of points out two theories. Above all, the two theories provide us the materials for study on the constitutional interpretation of right to equality in judicial application of right to equality. In chapter â…£, this section provides us retrospection on historical development of American policy "affirmative action"and its contemporary criticisms since the 1960's. It points out that the court has to consider the policy during the judicial process. The role of the court does nothing but enforce public policy negatively or positively. According to Dworkin's theory, individual rights are prior to policy aiming at realization of collective goal. Citizens should be entitled with the right of "equal concern and respect". The government should show the respect of individual dignity, treat everyone as the member of the whole society and recognize the equal rights of politics, economic, social and culture, which is the foundation of democratic society. The court should take citizens'rights seriously especially the minority group rights. When right to equality is applied, the court has to balance between the protection of individual rights and state policy. The court has to react to state policy positively or negatively. Considering the experience of American "affirmative action"and its criticism of "reverse discrimination"and introducing a strategy of balancing the protection of individual rights and state policy, this part points out the dilemma of the judicial role in the application of right to equality. One of legitimacies of judicial review is providing protection...