Keeping up with (which) Joneses: a critique of constitutional comparativism in Hong Kong and its implications for rights development

摘要

This paper explores Hong Kong courts' recourse to foreign and international legal materials in the interpretation of the two most important rights instruments governing Hong Kong, the Basic Law of Hong Kong and the Hong Kong Bill of Rights Ordinance, both generally and in two specific cases concerning freedom of expression and the age of consent for male/male sexual activity. It discusses how Hong Kong courts within the confines of political realities continue to allow themselves to be overridden by foreign courts in matters concerning Hong Kong. Constitutional comparativism as has been practised in Hong Kong, this paper argues, merely serves to allow for and perpetuate unpredictable judicial reasoning and the lingering effects of Hong Kong's colonial past, and is in need of a consistent and reasoned approach for its legitimate application and, ultimately, the protection of human rights, including sexual minority rights, and the rule of law in Hong Kong.