Judicial Deference at Work: Some Reflections on Chan Kin Sum and Kong Yun Ming

Hong Kong Law Journal, Vol. 4, No. 1, 2010

20 Pages Posted: 22 Feb 2011

See all articles by Cora Chan

Cora Chan

The University of Hong Kong - Faculty of Law

Date Written: February 21, 2010

Abstract

"Due deference" – the giving of appropriate weight to the government’s judgment in the court’s reasoning – is a tool that courts use to maintain the separation of powers in constitutional rights review. This note aims to provide a theoretical framework for understanding the issue of deference, and to analyse the Hong Kong Court of First Instance (CFI)’s approach to deference in two recent cases, Chan Kin Sum and Kong Yun Ming. The author argues that the CFI has adopted a spatial approach that failed to specify the contested issues that called for deference, inappropriately considered democratic legitimacy as a factor for deference, and made broad presumptions about the democratic character of primary decisions. This approach may lead to an over-deferential attitude that threatens the separation of powers, and the malleability of the approach may be subject to courts’ manipulation. The author argues for a more context-sensitive approach based purely on institutional factors.

Keywords: Deference, Restraint, Separation of Powers, Constitutional Rights, Judicial Review, Chan Kin Sum, Kong Yun Ming

Suggested Citation

Chan, Cora, Judicial Deference at Work: Some Reflections on Chan Kin Sum and Kong Yun Ming (February 21, 2010). Hong Kong Law Journal, Vol. 4, No. 1, 2010. Available at SSRN: https://ssrn.com/abstract=1765502

Cora Chan (Contact Author)

The University of Hong Kong - Faculty of Law ( email )

Pokfulam Road
Hong Kong, Hong Kong
China

HOME PAGE: http://hub.hku.hk/rp/rp01296

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