From liberal to conservative? The role of Hong Kong Court of final appeal in safeguarding fundamental rights under China's One Country Two Systems policy

Abstract

ABSTRACT This paper explores Hong Kong Court of Final Appeal's role in protecting fundamental rights under China's One Country Two Systems practice. It starts by giving an account of the constitutional and legal framework for Hong Kong's judicial protection of human rights. It examines the Court's efforts in obtaining constitutional jurisdiction, employing generous interpretation approach to rights guarantees, reforming standards such as proportionality and reasonableness for scrutinising rights restrictions, and broadening reference inputs by comparative approach and amicus curiae for interpretation of rights provisions. It indicates that through these ways the CFA has developed freedom-friendly common law constitutionalism and formed judicial preferences in favour of personal liberty. It advocates that the so-called conservative performance of the CFA on rights issues in national security cases may be its efforts to secure judicial independence and the common law system in a changing political climate. The article posits that due to the CFA's strong foundation in judicial protection of human rights, and its recent efforts to incorporate national security law into common law, it is well-positioned to play a crucial role in preserving the way of life for Hong Kong residents as China's Hong Kong policy enters a new era.