The Concept of Dignity as a Constitutional Value in Hong Kong

Abstract

This paper considers the development of 'dignity' as a constitutional value in Hong Kong, a special administrative region of the People’s Republic of China that has maintained a separate legal system since its reversion to Chinese sovereignty in 1997. Although the term 'dignity' does not appear anywhere in Hong Kong’s constitutional document, the Basic Law, the courts have referred to and highlighted the concept’s significance when interpreting a number of constitutional rights. Article 39 of the Basic Law guarantees the continued application and implementation of core international human rights instruments including the International Covenant on Civil and Political Rights (ICCPR) and the International Covenant on Economic Social and Cultural Rights (ICESCR). The Hong Kong Bill of Rights Ordinance – domestic legislation duplicating most of the text of the ICCPR – has achieved constitutional status. Although Hong Kong is a dualist, common law system, these provisions have established a direct link between domestic law and international human rights law. This has allowed the courts to deliberate the applicability of dignity as an international human rights principle when interpreting constitutional rights in the Hong Kong context. While dignity is not a constitutional 'right' on its own, a review of relevant judicial decisions suggests the concept has been recognized as a constitutional value that grounds other explicitly articulated rights. This paper will examine how the courts have understood the meaning of dignity in cases involving the right to equality and nondiscrimination (especially on the grounds of sexual orientation gender identity and disability), the right to work and other socio-economic rights, the rights of prisoners, and the rights of people who fear torture or other forms of serious human rights violations if returned to their countries of origin. Examining the development of the notion of dignity in Hong Kong constitutional jurisprudence provides a helpful comparative study. It sheds light on the potential impact of international human rights law – and the principle of dignity in particular – on the interpretation of constitutional rights.