The Hong Kong Bill of Rights Ordinance (BORO) guarantees many fundamental rights to Hong Kong’s permanent residents. In these constitutionally significant statutes, two types of rights exist: 1) textually qualified rights, which contain qualifying language indicating for what purposes a legislated restriction is permissible, such as when necessary for national security, public order, public health or morals, and 2) textually absolute rights, which contain no language indicating when a legislated restriction on that right is permissible. In Leung Kwok Hung & Others v. HKSAR, the Hong Kong Court of Final Appeal formulated a rationality requirement for when restrictions are constitutionally valid. The Court held that the rationality requirement is derived from the word “necessary” in qualifying language in the BORO Article considered by the Court. First, this comment argues that subsequent courts have misapplied Leung Kwok Hung’s formulation of the rationality requirement when considering textually absolute BORO rights that do not contain the word “necessary.” Second, this comment analyzes two possible approaches to correcting this misapplication by constitutionally authorizing the rationality requirement for textually absolute rights in a manner not reliant on the word “necessary.” This comment ultimately argues that the second approach, implying the rationality requirement into the BORO, should be followed.
Albert C. Buchman,
The Misapplication of Leung Kwok Hung in Hong Kong: Authorizing the Rationality Requirement for Textually Absolute Rights,
19 Pac. Rim L & Pol'y J.
Available at: https://digitalcommons.law.uw.edu/wilj/vol19/iss3/7