This chapter examines an implied restriction on power: the implied freedom of political communication. The Australian Constitution establishes a system of representative and responsible government. The High Court has explained that because freedom of political communication is necessary for such a system to function it follows that laws that impermissibly burden communication about political matters must be invalid. The High Court has developed a three-stage framework of analysis for assessing the validity of laws challenged for breach of the implied freedom. That framework requires examining whether the law has the effect of burdening political communication, whether the purpose of the law is legitimate, and whether the operation of the law is proportionate. The High Court has been clear that the implied freedom is a restriction on power, rather than an individual right, and that it protects only communication about governmental and political matters rather than freedom of speech more broadly.

Courts are political institutions. And judges do not operate in an institutional or ideological vacuum, as they are shaped by the social, political, and economic struggles that take place within their political systems. Where the strategic environment confers discretion on the courts, the judges can construct a constitutional identity for their jurisdiction distinct from their government’s vision and redefine the polity’s place in the world. And this constitutional convergence in East Asia will endure so long as the political system in each jurisdiction remains fragmented, the courts continue to be independent and judges choose to align their local jurisprudence with Western human rights law.

Taiwan, South Korea, and Hong Kong are exceptional insofar as their courts are the only ones in Asia that have converged on the use of Structured Proportionality (SP) to invalidate legislation routinely. Their judges reason through the four-stage SP sequentially and harness SP to overturn state action regularly. In East Asia, SP has been used to invalidate laws that limit free speech, freedom of assembly, criminal due process, prisoners’ rights, the right to work, sexual autonomy and the right to property.

Hong Kong, Taiwan, and South Korea have the only courts in Asia that regularly use a structured four-stage Proportionality Analysis system to invalidate laws. They also have the only courts in Asia that routinely apply innovative constitutional remedies such as Suspension Orders and Remedial Interpretation to rectify constitutionally flawed legislation. This book explores the constitutional convergence in East Asia and explains its limits.

This chapter examines the proportionality test as applied in Hong Kong’s constitutional jurisprudence. In addition to tracing the evolution of proportionality doctrine from the British colonial era to the present day, the paper advances two broad claims. First, it argues that the Hong Kong judiciary, led by the Court of Final Appeal (CFA), has gradually inserted more structure to the proportionality test, but has also become more deferential to governmental authority and expertise in constitutional rights adjudication. The CFA’s landmark judgment in Hysan Development Co Ltd v Town Planning Board (2016) is most significant in this regard, as it enabled the use of a very deferential standard of review – “manifest” unreasonableness – in a wide range of fundamental rights cases. Second, Hysan’s introduction of a fourth step to the proportionality test has had little, if any effect on subsequent judgments. The fourth step calls for courts to balance the societal benefits of an impugned law against the harm it imposes on individual rights. Thus far, however, Hong Kong courts have refrained from taking this balancing exercise seriously, even when the burden on those whose rights are affected appears to be substantial or excessive.

This chapter argues that, first, the adoption, application, and adaptation of proportionality in Taiwan mirror the nation’s political development from an authoritarian regime to a stable democracy. Second, the TCC has developed its own variant of Proportionality Analysis by concurrently using the tiered-standard of review, applied by the United States Supreme Court, in equal protection cases. In the words of a sitting TCC Justice, proportionality in Taiwan is like a restaurant with a German menu that also serves American dishes. Third, the application of proportionality in Taiwan, particularly the four subtests, is similar to that applied in many other jurisdictions: While the Taiwan Constitutional Court occasionally strikes down legislation for failing the legitimacy, suitability, or balancing sub-tests, most laws are invalidated for failing the necessity subtest. In practice, the Constitutional Court invokes proportionality mostly in the domain of civil and political rights, which is similar to many other apex courts in the world, and it has less frequently used PA to rule against the government in cases concerning socioeconomic rights.

The creation of the Constitutional Court of Korea by the 1987 South Korean Constitution symbolizes a new era of democracy after three decades of military dictatorship in the country. Throughout the thirty years of the Court’s practice, proportionality has been central to its constitutional adjudication. While the structured four-stage doctrine of proportionality was adopted from German public law, this principle has been concretized and deepened through its application by the Constitutional Court. Variations and deviations have emerged in cases involving different types of constitutional rights. The Court uses proportionality to enforce civil-political rights more than socioeconomic rights. Political considerations have also played a role in cases such that the Court has been more deferential to the government, especially on national security issues. The case study of South Korea provides a vivid example of proportionality’s local contextualization and at the same time illustrates the doctrine’s capacity to function as common grammar for rights claims and debates across different segments of society and beyond state borders.