Equal Treatment Under The Law

Equal treatment under the law is an ancient principle which is still of vital importance in the modern world. Almost every constitution worldwide recognizes this fundamental concept, in some form at least. Also known as equality before the law, or isonomy, the basic principle recognizes that all individuals should be treated in exactly the same manner by the law, while all persons should be subject to the same laws.

Article 7 of the Universal Declaration of Human Rights formalizes this basic right as: 

All are equal before the law and are entitled without any discrimination to equal protection of the law. All are entitled to equal protection against any discrimination in violation of this Declaration and against any incitement to such discrimination.

In the U.S. this principle was also enshrined in the Fourteenth Amendment to the Constitution, effective since 1868, which provides that:

nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.

However, the application of this concept, in practice, is often problematic. Confusion can arise between equal rights and equal opportunities. Governments can misuse the guise of equal opportunities to enforce restrictive legislation, which inhibits individual freedom and effectively denies equal treatment under the law, such as with the introduction of affirmative action policies. 

Such laws can penalize individuals who have perceived advantages, in order to force some semblance of equality. An alternative to this policy would be introducing a blind admissions initiative for universities, for example, where information regarding race, ethnicity, gender, and religion are unseen. It is extremely important to hold governments accountable to this basic human right and fundamental principle of equal treatment under the law.  

Violations relating to characteristics

Throughout history, characteristics such as race, gender, sexual orientation, religion, age or disability, have formed a basis for the differential treatment of individuals. Governments have gone so far as the creation of entirely separate classes of people, governed by different sets of laws. 

In South Africa, under apartheid, non-white people were subjected to a system of racial segregation, as well as economical and political discrimination. Under the Population Registration Act of 1950, South African citizens were classified as either White, Bantu, Colored, or Asian. An office for race classification was established and these classifications were split into various subcategories, all carrying varying legal consequences. 

For example, mixed marriages were prohibited by law. The forced relocation of people resulted in millions of black South Africans being evicted from their homes and confined to what were essentially tribal reservations. The Act was not repealed until 1991 and universal suffrage was only introduced in 1994.

Likewise, throughout most of history, many discriminatory measures have been implemented against women. It was only in 1918 and 1920, respectively, that British and American women were given the right to vote. Some parts of Switzerland did not implement universal suffrage until 1991, and Saudi Arabia only did so in 2015.         

To this day, an individual’s sexual orientation can still result in imprisonment, or even execution, in as many as twelve countries worldwide, including Iran, Saudi Arabia, and Yemen. Furthermore, a majority of countries do not extend marriage rights to same sex couples, although there is rapid change on this front. 

Application of the principle of equality under the law led the U.S. Supreme Court to rule, in 2015, that if marriage licences are granted to any individual, they should be available to all. This took place only a decade after the persisting debate on the decriminalization of homosexual acts.   

Violations relating to status

Another extremely dangerous consequence of disregarding this principle is the potential for corrupt leaders to abuse their position of power. It is therefore imperative to apply the law equally to all individuals, regardless of their status. No differences should be made, with regard to the law, for political figures, diplomats, law enforcement, legal professionals, leading businesses, or otherwise influential people. 

In some countries, such as France, it is not even possible to prosecute the President while in office. Likewise, they cannot be called upon to give evidence, or be involved in any form of legal proceeding, since this is deemed to be a distraction and misuse of time, therefore against the public interest. Proceedings can reconvene after they have left office, and there is a mechanism for impeachment in extreme cases only.

Despite the difficulties involved in bringing a President to justice, this does occasionally happen. Brazilian President, Dilma Rousseff, was removed from office in 2016, for breaking budget laws. She was charged with criminal administrative misconduct, based on financial irregularities in relation to government contracts, and found guilty along with several other senior officials.

Several attempts to initiate impeachment have been made throughout history in the U.S., but only two presidents, Andrew Johnson and Bill Clinton, were ever impeached. 

Diplomatic immunity is another contentious area in relation to equal treatment under the law, since this privilege allows diplomats to operate completely without legal consequences for their actions. Even their families can avail of the benefit, which was initially introduced to ensure safe passage of emissaries between foreign countries. 

Traveling on private business, Grace Mugabe, wife of former Zimbabwean dictator Robert Mugabe, has on several occasions been responsible for violent altercations, yet was never prosecuted. Clearly, diplomatic immunity represents a serious deviation from the principle of equal treatment under the law.    

Wealthy individuals, influential corporations, those working in the legal profession or law enforcement, and those involved in organized crime, among others, can potentially use their position to engage in bribery and corruption. A global ranking system for corruption levels exists, and those countries with the worst corruption are also those with the least freedom. Corruption creates an imbalance in treatment under the law and inhibits the development of a free society.

Why equal treatment under the law matters to SFL

At Students For Liberty, we believe that equal treatment under the law is a crucial principle which must be universally respected. It is a concept that serves as a prerequisite to a free society, ensuring that no individual is above the law. Those in positions of power present a unique threat to civil liberties if they are not held accountable on the same level as any other individual.