The Equal Opportunities Commission and the Courts in Hong Kong: A Partnership Model?

Abstract

Since the 1950s, the federal courts in the U.S. have developed a "new partnership" with public administrative agencies. The partnership enables the courts to play a large role in shaping public administrative decision making, implementation, other activity, and values. Severely criticized by scholars and practitioners as judicial meddling and interference with administration, the partnership model rests on the establishment of new constitutional rights for individuals in their encounters with public agencies, facilitation of suits against agencies, creation of remedial law, provision of qualified, rather than absolute, immunity in constitutional tort suits against public employees and officials, and adjustment of the level of judicial scrutiny of agencies on a continuum ranging from virtually "no look" to a "soft look" to a "hard look" depending on the administrative action involved. Our research demonstrates that some elements of the partnership model are present in Hong Kong, at least with respect to the courts and the Equal Opportunities Commission (EOC). Specifically, the courts have: 1) strengthened the statutory right to equal opportunity and the constitutional right to equality; 2) applied a hard look to administrative rationales for breaching these rights; 3) rejected "administrative difficulty" as a basis for using discriminatory gender classifications; and 4) mandated substantial institutional reform. In so doing, the courts have strengthened the EOC's ability to promote equal opportunity. This single case study adds to extant knowledge about courts and public administration and the adaptability of the partnership model to different political systems.