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Constitutional Protection of the Right to be Presumed Innocent and the Right against Self-incrimination: The Hong Kong Experience

Johannes Chan

(2013) 25 SAcLJ 679

This essay provides a detailed analysis of Hong Kong judicial decisions on legislative encroachment of the constitutional right to be presumed innocent and the right against self incrimination.  It argues that the impact of a constitution depends very much on the approach adopted by the Judiciary towards the interpretation of constitutional provisions, and this approach is in turn affected by a whole range of factors, including personal value choices regarding the relative priorities of public interests versus individual rights and the socio-political environment in which the constitution operates. It cautions against the adoption of a balancing approach, which on most occasions will lead to undermining fundamental rights, and argues that placing at the forefront the values of a constitutional right will likely lead to a more rigorous scrutiny of legislative encroachment and provide better protection to fundamental rights