Rights, Proportionality and Deference: A Study of Post-Handover Judgments in Hong Kong

Abstract

Around the world, it is common for courts to defer to executive or legislative authorities in adjudicating human rights issues, on the ground that the latter possess more expertise or democratic legitimacy to assess such issues. Hong Kong is no exception. This article reports the findings of the first empirical study of judicial deference in this jurisdiction. This study identified how often deference arose as an issue in human rights cases, what jurisprudence shaped the courts’ approaches to deference, and the relative impact of various factors on the degree of deference between 1997 and 2014. These findings will enhance an understanding of deference and provide an empirical basis for descriptions on, and normative assessments of, the courts’ approaches to deference.