Deference and the Separation of Powers: An Assessment of the Court's Constitutional and Institutional Competences

Hong Kong Law Journal, Vol. 41, No. 7, 2011

26 Pages Posted: 10 Oct 2011

See all articles by Cora Chan

Cora Chan

The University of Hong Kong - Faculty of Law

Date Written: August 15, 2011

Abstract

One view among the judiciary in Hong Kong is that courts should defer to the government’s position in adjudicating the constitutionality of policies, because courts are institutionally and constitutionally unequipped to pass judgment on policy issues. Using W v Registrar of Marriages as an example, this article examines some of the commonly cited institutional and constitutional reasons for deference, and argues that these reasons do not, generally speaking, provide valid grounds for Hong Kong courts to defer.

Keywords: Deference, separation of powers, judicial restraint, W v Registrar of Marriages, judicial review, constitutional rights

Suggested Citation

Chan, Cora, Deference and the Separation of Powers: An Assessment of the Court's Constitutional and Institutional Competences (August 15, 2011). Hong Kong Law Journal, Vol. 41, No. 7, 2011. Available at SSRN: https://ssrn.com/abstract=1909785

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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