The Application of Proportionality Test in Hong Kong Public Law


Introduction

Legal scholars such as Paul Craig and Tom Hickman disagree on whether the proportionality test should be applicable to every exercise of governmental power and also that the proportionality test should be the only substantive ground of judicial review. With the consequence that a reasonableness standard, of whatever hue, Craig and Hickman disagree on whether the proportionality test should be blue-penciled out of administrative law altogether.[1] In this essay, I will attempt to discuss whether Hong Kong should (1) continue its currently adopted position of using the irrationality test; or (2) to follow the English Supreme Court’s contextual approach; or (3) to recognize the proportionality test as a distinct ground of review. For the purpose of this essay, I will only focus on the substantive, rather than procedural, review of decisions. Therefore, the precise standpoint of this essay is “proportionality should be applicable to every substantive review of exercise of governmental power”. With no doubt, if the judicial review does not concern merits of decision, it is unnecessary to apply the proportionality test. This essay shall discuss the above three points, and I propose for the proportionality test should replace the existing irrationality test used in judicial reviews.

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