Judicial deference at work: Some reflections on Chan Kin Sum and Kong Yun Ming

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 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.