|
Director of Immigration.
37
The CFA was established in 1997 to replace the
Judicial Committee of the Privy Council as the final appellate court in Hong
Kong. It enjoys the power of final adjudication, so that cases litigated in Hong
Kong cannot be appealed to Beijing. Although the interpretation adopted by
the CFA of art. 22(4) of the HKBL (on the migration to Hong Kong of main-
land residents) in Ng Ka Ling has subsequently been superseded by an inter-
pretation of the HKBL issued by the NPCSC in June 1999, the Ng case is still
authoritative on the constitutional review power of Hong Kong courts with
regard to local legislation:
38
The Region is vested with independent judicial power, including that of final
adjudication. Article 19(1) [Basic Law]. The courts of the Region at all lev-
els shall be the judiciary of the Region exercising the judicial power of the
Region. Article 80.
In exercising their judicial power conferred by the Basic Law, the courts of
the Region have a duty to enforce and interpret that Law. They undoubtedly
have the jurisdiction to examine whether legislation enacted by the legis-
lature of the Region or acts of the executive authorities of the Region are
consistent with the Basic Law and, if found to be inconsistent, to hold them
to be invalid. The exercise of this jurisdiction is a matter of obligation, not of
discretion so that if inconsistency is established, the courts are bound to hold
that a law or executive act is invalid at least to the extent of the inconsistency.
Although this has not been questioned, it is right that we should take this
opportunity of stating it unequivocally. In exercising this jurisdiction, the
courts perform their constitutional role under the Basic Law of acting as
a constitutional check on the executive and legislative branches of govern-
ment to ensure that they act in accordance with the Basic Law.
39
The subsequent CFA decisions in HKSAR v. Ng Kung Siu
40
and Leung Kwok
Hung v. HKSAR
41
provide illustrations of constitutional judicial review of
36
5 U.S. (1 Cranch) 137 (1803).
37
(1999) 2 HKCFAR 4.
38
See generally Johannes Chan et al. (eds.), Hong Kong’s Constitutional Debate: Conflict over
Interpretation (Hong Kong: Hong Kong University Press, 2000).
39
Paragraphs 60–1 of the judgment.
40
Note 29.
41
Note 30.
244
Albert H. Y. Chen and P. Y. Lo
Hong Kong laws restricting human rights on the basis of proportionality ana-
lysis. The two cases concerned freedom of expression and freedom of assem-
bly respectively. Whereas the impugned flag desecration law was upheld as a
proportionate restriction on freedom of expression for the protection of ordre
public in Ng Kung Siu, one provision in the existing Public Order Ordinance
was struck down in Leung Kwok Hung. In the latter case, the CFA reiter-
ated the proportionality test for the constitutional review of laws restricting
constitutional rights (other than absolute rights such as the right not to be
tortured), which involves a three-stage analysis: (1) Is the statutory restriction
of the relevant right for the purpose of achieving a legitimate aim? (2) Is the
restriction ‘rationally connected with one or more of the legitimate purposes’?
(3) Is the restriction ‘no more than is necessary to accomplish the legitimate
purpose in question’ (or is the restriction so designed as to involve minimum
impairment of the relevant right)? In the 2016 case of Hysan Development,
the CFA, following English and European jurisprudence, added a fourth step
(proportionality stricto sensu) to the test, which is to consider whether a ‘rea-
sonable balance’ has been struck between the interests of the individual or
group concerned and the ‘societal benefits’ flowing from the restriction on the
relevant constitutional right of the individual or group, ‘asking in particular
whether pursuit of the societal interest results in an unacceptably harsh bur-
den on the individual’.
42
The proportionality test has been applied by the Hong Kong courts not
only to human rights guaranteed by the ICCPR and the Hong Kong Bill of
Rights, but also to other rights guaranteed by the HKBL, such as the right
to travel,
43
and even to adjudicate on the constitutionality of a restriction on
appeals from a lower court to the CFA.
44
In the context of the right to equality
and non-discrimination, proportionality analysis has been undertaken under
the ‘justification test’, which is structurally similar to the proportionality test.
In considering a constitutional challenge on the basis of equality and non-
discrimination on the ground of sexual orientation, the CFA decided in Secretary
Do'stlaringiz bilan baham: | 
