(p 300)
⚫ Refined the 2nd part of proportionality test
◼ Application: varied according to the nature of the right at issue
⚫ 1
st part of proportionality test: largely similar way
◼ Requirement:
◆ The party defending the restriction on a particular right → prove:
rationally connected with legitimate purposes
⚫ Legitimate purposes
◼ ICCPR
◼ No reasons listed → court to decide
⚫ Difficult to prove
◼ Kong Yunming
◼ Chan Kim Sum
(p 302 - 303)
⚫ 2
nd part of the test: “minimal impairment’ test - necessary extent of the
restriction
◼ Chan Kin Sum
◼ Ng Kung Siu
(p 303)
⚫ 2
nd part: applied varied according to nature of rights at issue
◼ Violate the “respect and dignity that society accords to a human being”
◆ Particular severe scrutiny
◆ Weighty evidence
◆ Fok Chun Wa: extremely rarely
◼ (p 304 – 305)
Social and economic rights involving public funds expenditure: Much
milder form
◆ Examples
⚫ Fok Chun Wa + Kong Yunming
⚫ Still failed: Kong Yunming
◆ Deference: margin of appreciation
⚫ Examples: life sentence + time limit on appeals against
electoral rsutls
◆ Criticism: no universal suffrag