A robust discussion is now underway concerning judicial decision-making in Hong Kong. It is being led by a range of commentators including the former Court of Final Appeal (CFA) judge Henry Litton (cited in “Is Hong Kong judiciary sleepwalking to 2047 and beyond?”, China Daily Hong Kong Edition, Nov 4, 2020) and barrister Lawrence Ma (“[Geoffrey] Ma’s idea of balancing individual, collective rights yet to pan out”, China Daily Hong Kong Edition, Jan 22, 2021). Both have stressed the benefit of the CFA taking a lead in any reform process.
Superior courts in the common law world do not reset fundamental legal rules lightly. But they can do so when a majority in the court see that circumstances indicate this is needed. I have previously observed how the High Court of Australia has essentially rewritten the Australian Constitution over many decades in a series of cases so as to elevate the role of the federal government at the expense of state governments (“Opponents of co-location ignore ‘living law’ model”, China Daily Hong Kong Edition, Feb 2, 2018). In doing so, the court tracked similar centralizing developments in the United States arising from numerous US Supreme Court decisions.
Over a year ago, the High Court in Hong Kong struck down the essence of a new mask-ban law applied by the government at the height of the violent political upheaval engulfing Hong Kong in 2019. The government had applied this ban under the Emergency Regulations Ordinance (ERO) in October 2019. At the time the court made this decision, it was clear that a continuous insurrection was underway. Social stability, the operation of the economy and the basic constitutional order had all been badly damaged and the threats were ongoing.
To arrive at this remarkable outcome, the court relied on intricate human rights proportionality arguments. This case arguably presents the most unbending application yet of the commanding individual rights jurisprudence developed in Hong Kong over the last 30 years. The millions who were being intimidated, week in and week out by those egregiously practicing the politics of violent harassment, saw their right to freedom from fear being trumped by the rights of rioting protesters.
In December, the CFA, in a unanimous decision, reinstated the mask-ban law as a proportionate response, in the circumstances applying. The CFA also endorsed the validity, under the Basic Law, of the ERO. This was the right outcome. Potentially more significant than this desirable outcome, however, was certain additional reasoning used by the CFA.
The proportionality test, which has so dominated human rights cases in the HKSAR, is usually said to require three analytical steps. These consistently place a heavy onus on the government to justify challenged laws — and they figured significantly in the first instance decision on the mask-ban law. In 2016, in the Hysan case, the CFA introduced a fourth step. Briefly, this said that, in certain circumstances, the public interest needed to be measured against individual rights.
This fourth step has been used, so far, to check if a law or government action aimed at protecting a social interest may impose some especially harsh burden on an individual. The CFA applied this fourth assessment in the mask-ban case and found no such burden had been applied. Yet what is also important is how this test reminds us of the centrality of the public interest.
Almost 30 years ago, in 1993, Lord Woolf, speaking for the Privy Council in an early Hong Kong Bill of Rights case, flagged the threat rights-based litigation posed to sound judicial decision-making, arising from excessive reliance on the three-step proportionality calculation. His critics were vocal and many were soon convinced that Lord Woolf was wrong.
However, the use of the Hysan test in the mask-ban case indicates a way for the CFA to revive Lord Woolf’s basic balancing test, which stressed the need to determine, case by case, particular individual rights measured against the public interest. Lord Woolf argued that this should be a primary test, in most cases. This remains an option which the CFA could adopt, today, in certain instances involving acute public interest concerns — such as in the mask-ban case. This would be a radical step, yet one which would be consistent with decisions in other common law jurisdictions where superior courts have comprehensively reformatted existing jurisprudence when it was seen that the public interest conspicuously indicated such a need.
Section 92 was included in the Australian Constitution, which took effect in 1901, to ensure free trade between all the states in the new federation. For almost 90 years, this section was interpreted, in too many cases, so as to protect individual commercial rights in a complex, regularly haphazard, way. This intricate reasoning resulted in a mounting, deeply adverse impact on the public interest: It placed a major burden on the normal regulation of commerce. In 1988, in the case of Cole v Whitfield, the High Court of Australia overruled much of that unhappy case law and introduced a new, clear-cut test that stressed section 92 only prohibited laws that applied a “discriminator burden of a protectionist kind”. Since then, section 92 litigation has virtually ceased.
Following its mask-ban decision, the CFA should actively consider a further distinctive step. A fundamental but judicious move — based on an adapted version of the Hysan reasoning — would be to require those seeking to enforce rights, in certain circumstances, to satisfy an initial, basic test that protecting their individual rights would not result in unacceptable harm to the public interest.
The author is a visiting professor in the law faculty of Hong Kong University.
The views do not necessarily reflect those of China Daily.