英文摘要 |
The Hong Kong Court of Final Appeal applies principle of proportionality to review the legitimacy of the limitation of rights. The application of proportionality by the Court experiences evolution from two steps to three steps, and then to four steps. In most cases, the Court accepts directly the aims of the restricting rights proposed by the Hong Kong Special Administrative Region Legislative Council or the Government, and recognizes that there exists a reasonable connection between purposes and restrictive measures. ''no more than necessary'' and ''manifestly without reasonable foundation'' are the review standards adopted at step three. The former intensity is higher than the latter. Recent practice gives the impression that the Court prefers the latter. In step four, the Court does not make value judgment. The Court uses frequently comparative law in the application of principle of proportionality. Building the analytical framework of proportionality, clarifying legitimate aims and developing the review standards with different intensities at step three are the three main types in which the Court uses comparative law. Decisions from the Privy Council of the United Kingdom, the European Court of Human Rights and the Supreme Court of Canada are most influential. |