Regarding the scope of its application, may I clarify whether proportionality test does not apply to those human rights in personal context , such as right to be heard, freedom of speech etc? But the court will examine proportionality when touching upon say election right or assembly right (not unqualified) and right to property?
Answer from Albert:
For the scope of application for the proportionality test, it applies to all "non-absolute rights".
Some rights are said to be "absolute", such as freedom from torture, slavery, etc. These "absolute rights" cannot be restricted for any reasons and therefore the proportionality test is not applicable.
For non-absolute rights, they can be restricted. Take freedom of speech and expression as an example, it can be restricted if it is provided by law and the restrictions are necessary for respect of rights and reputation of others, or for the protection of national security or of public order, or of public health or morals (see Article 16 of the Hong Kong Bill of Rights). The court would apply the proportionality test to see whether restrictions on the right are justified.