In assessing Bunreacht na hÉireann’s equality guarantee, what can we take from Section 9 of the South African Constitution?

In addressing the Irish equality guarantee, we see that a majority of the Constitutional Review Group believed Article 40.1 should be amended. What is remarkable about this proposal is that the proposed amended Article 40.1 looks extremely similar to Section (9) of the South African Constitution. Although there are very clear issues with our equality guarantee, it is quite hopeful that there is a common understanding of how this provision must change if it is to function correctly. Section 9 is a long-winded provision, and we must note how extensive, clear and elaborate their provision is as opposed to our Article 40.1. Section Nine of the Constitution of South Africa guarantees equality before the law and freedom from discrimination to the people of South Africa.  

The jurisprudence of the South African Courts on the relationship between human dignity and equality shows that Courts can go very far in invoking the principle of equality to strike down laws based on the subordination of people that show, however underhandedly, perceptions of inferiority of individuals. What is of great significance here, and what makes South Africa the perfect comparator, is how similar our history is to that of South Africa's. They have an ethos as seeing rights like socio-economic rights as equality issues. We don’t draw those conclusions in Ireland. The transformative constitutionalism that has taken place in South Africa’s equality guarantee is similar to the Irish experience of the unenumerated rights doctrine in the 60’s and 70’s.  

Their Constitution constitutes a historic bridge between the past of a deeply divided society characterised, nearly defined, by conflict, suffering and injustice and on a future based on the recognition of human rights, democracy and peaceful coexistence and the development of opportunities for all South Africans irrespective of their differences. Substantive equality is seen as demanding this social and economic revolution, where everyone enjoys equal access to resources and amenities of life and can develop to their full potential. This requires the demolition of systemic inequality; the abolition of poverty and this right encompasses economic and social equality.1  

To briefly address the most relevant cases brought under Section (9), their Court found that a government policy that prohibited the employment of non-citizens as schoolteachers was unfair discrimination2. We see the first constraint in our system here because our Article 40.1 only applies to citizens, South Africa has committed to enforcing the equality rights of non-citizens. Section (9) was utilised in Succession law where the rule of male primogeniture in customary law was found to be discriminative on the grounds of gender.3 Section (9) was utilised in the employment law sphere where a government owned airline was found to violate the right to equality when they refused to hire workers who were HIV positive.4 

South Africa used their equality guarantee to find that the criminalization of male same-sex sexual relations was unfair discrimination, both on the grounds of gender and sexual orientation. 5 Their Courts found that a law that provided benefits to married couples was discriminative, on the basis of sexual orientation, and had to be extended to provide to same-sex partners.6 In 2005 they utilised Section (9) to find that the denial of marriage to same-sex couples was unfair discrimination.7 We can contrast this with the Irish experience surrounding the Norris case. 

It's necessary to address this case as, the Irish Courts failed to explicitly state that indirect discrimination is Constitutionally prohibited here. The High Court and Supreme Court rejected the plaintiff’s claim that the criminalization of anal sex constituted a discrimination between homosexuals and heterosexuals. In finding for the Attorney General, McWilliams J. stated that it's obvious that such acts will usually be performed between homosexual males, which is probably what the legislature had in mind, that does not constitute an invidious or arbitrary discrimination against homosexual citizens.8 As we see, the differential impact was probably intended. The Court’s rejection of the plaintiff’s contention was a rejection of the concept of indirection discrimination entirely, where discrimination was salient to a ground of classification but not necessarily where the discrimination was categorically confined to a ground of classification.9  

This was a blatant rejection of the concept of indirect discrimination. In examining the South African cases contemporaneously, they illustrate the breadth that their equality guarantee operates under. There is a vast amount of jurisprudence in this jurisdiction but in selecting a handful of cases, we can contrast these with the impoverished Irish experience and draw the conclusion that there is an appropriate method of reform available. Equality is an aspiration here in Ireland that deserves to be at the forefront of our transformative constitutionalism. It has for years been a constitutional backwater that has served no use for the Irish people and has sat back in many instances and allowed for hardship and suffering.