1.
Courts and the Protection of Fundamental Rights in Hong Kong
(1) Approach and Methods Used by the Courts
The role of the judiciary in Hong Kong is pivotal in safeguarding fundamental rights and
liberties. The courts employ several methods and approaches when adjudicating cases
concerning these rights:
Interpretation of the Basic Law: The Basic Law of Hong Kong functions as its constitutional
document, delineating the rights and responsibilities of individuals and the government.
Courts are tasked with interpreting the Basic Law, which includes provisions on fundamental
rights such as freedom of speech, assembly, and religion. The courts often look to
international human rights standards, such as those outlined in the International Covenant
on Civil and Political Rights (ICCPR), to guide their interpretations, ensuring that local laws
are consistent with global human rights norms. （art.39 of the basic law, slide 7, 37-
39!!）ordinance 383..
Cap. 383 Hong Kong Bill of Rights Ordinance
Slide 59(dklm wtf are you talking abouttt!!!!!!!)
三權分立
Whats constitutional review(????
art.158 ？？？
procedure!!!!!!
Judicial Review: Courts in Hong Kong possess the authority to conduct judicial
reviews of legislative and administrative actions. This means that if a law or
government action is alleged to infringe upon fundamental rights, affected individuals
can challenge it in court. The judiciary evaluates whether such actions are lawful,
reasonable, and proportionate, thereby providing a crucial mechanism for the
protection of rights.
Application of the Proportionality Test: In cases that involve the limitation of
fundamental rights, the courts frequently apply the proportionality test. This legal
principle requires that any restriction on rights must serve a legitimate aim, be
necessary to achieve that aim, and be proportionate in its effects. The courts
rigorously assess whether the means employed by the government to restrict rights are
justified, ensuring that fundamental freedoms are not unduly infringed upon.
(2) Judicial Processes for Scrutinizing Rights and Freedoms
The judicial processes used by the courts to scrutinize fundamental rights and freedoms are
multifaceted:
Case Law Development: Through their rulings, courts create precedents that clarify
and expand the understanding of fundamental rights. Landmark cases have
established important principles regarding the interpretation of rights protected under
the Basic Law, contributing to a growing body of case law that shapes the legal
landscape in Hong Kong.
Public Interest Litigation: Courts allow for public interest litigation, a practice that
enables individuals and organizations to bring cases that have broader societal
implications. This mechanism empowers civil society to hold the government
accountable for potential rights violations and ensures that issues affecting the public
interest are addressed.
Engagement with Expert Opinions: In complex cases, courts may seek expert
testimony or reports to better understand the implications of certain laws or policies
on fundamental rights. This engagement helps ensure that judicial decisions are
informed by a comprehensive understanding of the issues at hand.
Limitations
Despite these robust mechanisms for protecting rights, there are notable limitations:
Judicial Independence: While the judiciary is constitutionally independent, there
may be external influences that affect judicial outcomes, particularly in politically
sensitive cases. Concerns about government pressure or public opinion can create an
environment where judges may hesitate to make bold rulings.
Resource Constraints: Access to justice is often hampered by financial and logistical
barriers. Legal representation can be costly, and individuals may struggle to afford the
necessary legal assistance to challenge rights violations effectively.
Political Context: The political climate in Hong Kong, particularly with increasing
tensions between local governance and central authorities, can impact the courts'
willingness to hear certain cases or to rule against governmental actions. Courts may
be cautious in adjudicating cases that could provoke political backlash.
(a) Did Lord Bingham Agree or Disagree with Raz’s Passage?
Lord Bingham, a prominent legal figure, articulated a conception of the rule of law that is
fundamentally intertwined with justice, democracy, and the protection of human rights. He
would likely disagree with Joseph Raz’s distinction that allows the rule of law to exist
independently of these values. Bingham posited that the rule of law cannot merely be about
adherence to laws; it must also encompass principles of fairness, equality, and respect for
human dignity. He emphasized that a legal system that fails to protect human rights cannot be
considered just, thus aligning more closely with a holistic view of the law that integrates
ethical considerations. (this part is useful please use it more!!!!!!!!!!)
(b) Mr. Justice Bokhary's Agreement with Raz
Mr. Justice Bokhary is similarly committed to the idea that the rule of law must be infused
with moral values and the protection of human rights. He would likely disagree with Raz’s
passage, arguing that the law should not only be about compliance but also about justice and
ethical conduct. Bokhary’s writings emphasize that a legal system should promote the dignity
and rights of individuals, suggesting that Raz’s view is too narrow and overlooks the essential
role that moral considerations play in the law. (Bokhary p227 -> u should even extend to
social welfare(poverty blallalallalalallala))
(c) Comparing Conceptions of the Rule of Law
Joseph Raz’s Perspective: Raz's view focuses on the functionality of law and
adherence to legal norms, suggesting that a system could conform to the rule of law
even if it lacks moral integrity. This perspective can be problematic, as it allows for
the legitimization of oppressive regimes that technically follow legal procedures but
violate human rights.
Lord Bingham’s Perspective: Bingham’s conception is more comprehensive, linking
the rule of law with broader principles of justice and human rights. He argues that a
legitimate legal system must not only enforce the law but also ensure that it serves the
interests of justice and protects individual rights.
Mr. Justice Bokhary’s Perspective: Similar to Bingham, Bokhary stresses the
importance of moral values in the law. He advocates for a view of the law that is
inherently tied to the protection of human dignity and rights, arguing against any
notion that separates legal legitimacy from ethical considerations.
Personal Agreement: I align more closely with the perspectives of Bingham and Bokhary.
Their views recognize that the rule of law must be rooted in justice, human rights, and moral
integrity. This holistic approach is essential for ensuring that legal systems do not merely
function, but also promote fairness and respect for individuals. Adopting a limited view, as
suggested by Raz, risks legitimizing systems that may be legally correct but morally
reprehensible.
(d) Judicial Activism
Definition: Judicial activism refers to a judicial philosophy where courts take an active role
in interpreting laws, often going beyond the text of statutes or constitutional provisions to
promote justice and protect individual rights. This may involve striking down laws,
expanding the interpretation of rights, or intervening in governmental actions.
Threat or Blessing:
Threat: Critics of judicial activism argue that it can undermine the principle of
separation of powers. They contend that judges may overstep their authority by
making policy decisions that should be left to elected representatives. This could lead
to a lack of accountability and the imposition of judicial preferences over democratic
choices.
Blessing: Proponents of judicial activism argue that it is essential for safeguarding
fundamental rights, especially in instances where legislative or executive branches fail
to protect those rights. Judicial activism can serve as a necessary check on
government power, ensuring that individuals have recourse when their rights are
infringed.
Conclusion
The role of courts in protecting fundamental rights in Hong Kong is multifaceted, involving
interpretation, judicial review, and public interest litigation. While the judiciary has
established mechanisms to uphold rights, limitations exist, particularly regarding external
pressures and resource constraints. The contrasting views of Raz, Bingham, and Bokhary
highlight important philosophical debates about the nature of the rule of law. Ultimately, the
perspectives of Bingham and Bokhary offer a more integrated understanding of the law,
emphasizing the necessity of moral values and human rights in achieving true justice. Judicial
activism, while contentious, can play a vital role in ensuring that fundamental rights are
protected within a legal framework that aspires to uphold justice and dignity for all
individuals.
Notesssss: judicial??? Blallalallllalala
Sooo judges are also human being
Constitutional review -> big problem: it may not be really successful
Inconsistent??? Annex III -> national law of the PRC is going to be implied in Hong Kong
jurisdiction?