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Kelley Loper, University of Hong Kong Protecting human rights in a mixed constitutional context: the case of Hong Kong

This article will consider the capacity of the Hong Kong Basic Law, a regional, “mixed” constitutional document, to support the protection of human rights. Although it contains liberal elements, including the entrenchment of core international human rights treaties and an independent judiciary, the Basic Law is not a classic liberal constitution. Hong Kong’s governing institutions do not enjoy democratic legitimacy and the Basic Law itself was enacted by the National People’s Congress of the People’s Republic of China rather than a local constituent assembly or other mechanism designed to reflect the consent of the governed. The Basic Law’s foundational principle of “One Country, Two Systems” – intended to ensure Hong Kong’s smooth transition to Chinese sovereignty in 1997 – has built-in tensions, and even contradictions, but no clear method for their resolution. This article explores how this “mixed” constitutional arrangement has nevertheless been able to protect many fundamental rights. It also examines opportunities to further strengthen rights, at least in some areas. Current political realities are likely to preclude any attempt to introduce progressive liberal constitutional or democratic reform. I argue, however, that certain features of Hong Kong’s constitutional framework and the courts’ approach to its interpretation could contribute to the development of a more expansive notion of democracy, beyond electoral procedures alone.

In particular, Article 39 guarantees that both the International Covenant on Civil and Political Rights (ICCPR) and the International Covenant on Economic, Social, and Cultural Rights (ICESCR) will continue to apply to Hong Kong. The ICCPR has been reproduced in the Bill of Rights Ordinance, a statute with constitutional status. It has thus had had more of an impact than the ICESCR which has not been similarly incorporated and has been characterised by the courts as merely “aspirational”. Certain cross-cutting norms, however, could help bridge the gap between socio-economic and civil and political rights to produce a more cohesive, holistic rights regime beyond traditional liberal “negative” freedoms. For example, the Preambles of both the ICCPR and ICESCR contain references to dignity and Hong Kong courts have accepted that human dignity is a constitutional value. The right to live in dignity requires both traditional liberal freedoms as well as the socio-economic conditions that support human flourishing. The right to equality and non-discrimination is also common to the ICCPR and the ICESCR and Hong Kong courts have adopted a robust standard of judicial review when construing this right to require substantive equality.

 

Attention to these provisions may be less politically fraught and allow space for a richer human rights discourse, despite constitutional and political constraints. As a result, they could also play a role in resolving (or at least mitigating) tensions arising from Hong Kong’s competing constitutional imperatives. This analysis, although focused on Hong Kong, could also contribute to broader discussions about the position of socio-economic rights in constitutional theory.

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