CONTEMPORARY ISSUES IN PUBLIC LAW IN HONG KONG: THE RIGHT TO EQUALITY AND
By Richard Clayton QC
By Richard Clayton QCI would, again, like to thank you for the opportunity to speak to you on a subject which has such a central role to Hong Kong’s democracy and governance. This evening I propose to discuss the right to equality. I shall examine these developments by making comparisons with developments in other relevant human rights jurisdictions and discuss their implications.
As I indicated yesterday, I propose to take my lead from the approach taken by the Final Court of Appeal in Hysan Development Co. Ltd. v Town Planning Board which reaffirmed the generous approach that the Hong Kong courts have always taken to human rights decisions from other jurisdictions. For these purposes I shall look at cases from the UK, the Privy Council, the ECtHR, the US, Canada and Australia. If you will forgive me for repeating what I said last night, I believe that there is great value when doing human rights work of examining the case law of different jurisdictions. So many human rights questions are universal in nature- and it is often illuminating to draw upon the collective wisdom emerging from different constitutional approaches to the same issue. Nevertheless, Courts when, applying comparative legal principles must always be astute to recognise the importance of different legal, political and cultural traditions, as well as, if appropriate giving effect to the particular language used in a particular rights instrument.
In preparing my paper I have been struck by how active the Hong Courts have been in addressing equality issues in 2017 dealing with three important decisions: the haircut case concerning the activist, Leung Kwok Hung; two same sex marriage cases, Leung Chun Kwong and the recent and important Court of Appeal decision in QT v Director of Immigration (2017) decided on 25 September 2017. This evening I shall talk about how some key concepts in discrimination law could be re-analysed through the lens of international jurisprudence. I shall also look at a few important cases in specific areas: same sex marriages; disability discrimination; discrimination and public housing.
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