top of page
Search

Standards of Fairness

Peter Kam Fai Cheung SBS

Is fairness a black-and-white concept? Ie either a certain distribution or apportionment is fair or not fair? Any "fairer" or "fairest" distribution or apportionment hypothesis seems to suggest certain first or second conceived or executed distribution or apportionment is not as fair as the second and third distribution or apportionment, or has just reached the bare minimum or low standard but has not fully met the expected one.

In the imperfect international legal order, the reciprocal standards set in treaties are minimum international standards which must be observed. Contracting parties' domestic legal standards in the administration of fairness cannot be below but can be above the international minimum ones. Hong Kong's practice of a high standard of procedural justice particularly in the context of international protection of human rights evidences that.

Level of even handedness in dispensing justice ie the obligatory institutional administration of fairness has a certain order eg public law rights take precedence over private law rights. When fundamental human rights are at stake, high standards of procedural fairness are required, so stated the Hong Kong Court of Final Appeal in the case of Secretary For Security v Skthevel Prabakar [2004] HKCFA 39. The high standard of fairness should be approached as follows: (1) the claimant "should be given every reasonable opportunity" to establish the claim; (2) "the claim must be properly assessed" by the authority and (3) for every rejection, "reasons should be given" by the authority, which "must be sufficient" to enable the claimant "to consider the possibilities of administrative and judicial review."

In FB v Director of Immigration [2008] HKCFI 1069, the court opined that "the only way that justice may be done to those genuine claimants is that all claims must be processed with a high standard of fairness" ie the authority is required to: (1) provide free legal advice, (2) permit the presence of legal representatives in any part of the administrative screening process, (3) have different persons for investigation and decision making to avoid bias or conflict of interest; (4) provide sufficient training for interviewers and decision-makers; (5) provide oral hearings on petition and (6) give adequate reasons for the refusal of a petition. When I first studied international protection of human rights from 1985-1987, the human rights protection scene in Hong Kong whether in terms of administrative, legislative or judicial processes, was not as institutionalized as it is now. I look forward to playing a possible role in the due process, catching up with what I have missed!

10 views0 comments

Recent Posts

See All

Into the Deep

FADE IN Act 1   INT. LIVING ROOM - 12:30 PETER stares at his laptop, with a weathered face and determined eyes. PETER (V.O.): I've...

Kaji: The Unseen Bond

FADE I N   A ct 1   INT. HOME - MORNING   Cozy. KAJI sits by the front door. KAJI (V.O.): My world revolves around the Pack Leader and...

  • Facebook Social Icon
  • Twitter Social Icon
  • LinkedIn Social Icon

+(852) 6819 8258

Fortune Chambers, 2305, Tower Two,

Lippo Centre, 89 Queensway, Hong Kong 

©2017 BY PETER KAM FAI CHEUNG. PROUDLY CREATED WITH WIX.COM

bottom of page