Jumpstarting the Hong Kong Bill of Rights in its second decade? The relevance of international and comparative jurisprudence

Abstract

Introduction: When I look back on the first decade or so of the Hong Kong Bill of Rights, it is difficult not to feel a certain satisfaction at the developments since 1991, but at the same time I feel somewhat disheartened. There is no doubt that the advent of, and subsequent litigation and activism around, the Hong Kong Bill of Rights Ordinance and its international progenitor, the ICCPR (the latter in constitutional garb before and after 1997), has had a significant impact in many areas of Hong Kong law and practice. The coming of the Bill of Rights brought with it a wide-ranging policy review in many areas, and some of the detritus of legal history was swept away as the result of judicial pronouncements of inconsistency, and subsequent legislative reform. The Bill of Rights also gave stimulus to the enactment of detailed legislation in other fields, above all in relation to different forms of discrimination. The courts of Hong Kong have become reasonably familiar with relevant international materials, with judgments regularly drawing on the jurisprudence of the United Nations treaty bodies (in particular the Human Rights Committee) and, more extensively, the jurisprudence of the European Convention on Human Rights, as well as human rights and constitutional law form many national courts..... My purpose in this paper is to look at some aspects of the way in which the courts have approached Bill of Rights and related human rights issues over the years, and to identify some areas where there may yet be potential for the revitalisation or expansion of the Bill of Rights and the international human rights regime imported into Hong Kong law by article 39 of the Basic Law. It is not intended to be a comprehensive review or account, but is rather a selection of issues which seem to me to illustrate important points about the way the courts have approached, or could approach the protection of human rights. Show more