Fleiner-Gerster Thomas - Routledge Handbook of Constitutional Law

Affirmative action refers to a range of governmental policies designed to foster greater opportunities for racial and ethnic groups that have traditionally been victims of discrimination. These policies are also frequently extended to women and to individuals who have suffered from socio-economic disadvantage. Affirmative action has generally been less controversial when based on class or gender instead of race. Affirmative action policies have taken the form of quotas for members of previously disadvantaged groups, preferential weighting of applicants for employment and university admissions and governmental pressure to increase recruitment of members of groups that have long suffered from discrimination. In some nationsthe United States and the Republic of South Africa are examplesaffirmative action takes place against a background of previous histories of formal, legally mandated discrimination against non-white groups. In other nationsBrazil is an exampleaffirmative action occurs in the absence of a history of formal legal discrimination. In such nations there are often nonetheless very real histories of racial discrimination and stigmatization of and often very strong patterns of racially linked class disadvantage (Cottrol). Affirmative action policies are found in a diverse set of nations in the modern world including such nations as Brazil, Colombia, India, Israel, Malaysia, Nigeria, South Africa and the United States (Sowell, 222).

Affirmative action frequently creates constitutional and judicial dilemmas in the nations that have or contemplate such policies. By the end of the twentieth century, and especially after the fall of South Africas apartheid regime in 1993, the principle of the equality of all citizens before the law had become a virtually universal constitutional norm. But how would affirmative action policies that did confer preferences and benefits on traditionally disfavored groups be reconciled with the equality principle? A strict reading of the equality principle that is found in most modern constitutions would argue that applications for employment or university admissions be judged without regard to race, ethnicity, gender, or a nations previous history of discrimination. Yet such a strict adherence to the equality principle would allow entrenched patterns of social, economic and, in some cases, political inequalities to continue, not taking into account either historic disadvantage, or the very real persistence of It is accepted in international law that the principle of equality

[do]es not require absolute equality or identity of treatment but recognizes relative equality ie, different treatment proportionate to concrete individual circumstances. In order to be legitimate, different treatment must be reasonable and not arbitrary and the onus of showing that particular distinctions are justifiable is on those who make them (McKean).

As Judge Tanaka famously held in the South West Africa Case (Second Phase):

The principle of equality before the law does not mean absolute equality, namely the equal treatment of men without regard to individual, concrete circumstances, but it means the relative equality, namely the principle to treat equally what are equal and unequally what are unequal To treat unequal matters differently according to their inequality is not only permitted but required.

The extent to which this viewpoint has become accepted law in different nations has, of course, depended on the actions of national courts and legislatures, the reception of international human rights law and the era in which constitutional drafting occurred.

This Chapter examines the treatment of affirmative action in the constitutional law of four nations, selected to highlight differences and similarities in connection with the common law or civil law background, and differences and similarities in connection with the historical origins of the conditions that have led policy-makers to develop affirmative action policies.