Rights, proportionality and deference: an empirical study of judgments in Post-Handover Hong Kong

Abstract

The paper presents the findings of a study of judicial deference in human rights cases handed down by courts in Hong Kong since its return to Chinese sovereignty. The study uses a combination of qualitative analysis and quantitative methods structured around the two-stage approach to rights adjudication (definition first, limitation second) and a multi-part proportionality test to ascertain the degree of deference that courts exhibit in reasoning about rights. The findings reveal what factors affected the degree of judicial deference and how courts exercised deference. These findings furnish an empirical basis for testing various assumptions about the courts’ deferential behaviour. Although the study focuses on Hong Kong, its methods of analysis are (within limits) transposable to other jurisdictions, and its findings will make for interesting comparisons with judicial attitudes in the UK, Canada and ECHR – jurisdictions that inspired Hong Kong courts’ approaches to deference.