Proportionality: A General Ground of Judicial Review?

Abstract

The application of proportionality test in Hong Kong is confined to rights-based cases. Whether proportionality should be a general principle of judicial review is not a question that can be answered simply by enumerating all the benefits that it may bring to the society. This is a fundamental question of institutional design, and if the answer to it is yes, then a radical change is brought about, therefore serious justification has to be provided. Such justification undoubtedly includes the benefits of the new system, but the benefits should in the first place be weighed against the potential adverse impact that might be caused. It is also a relevant consideration that whether the desirable benefits can be obtained through the court’s incremental development of the law relating to unreasonableness instead of directly consigning it to the history. This article first examines the differences between unreasonableness and proportionality test. It then focuses on the normative basis and the practical benefits of acknowledging proportionality test as a general ground of review, followed by an analysis of arguments against such change. This article concludes by arguing that the benefits-weighing exercise does not point to the expansion of the proportionality test.