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

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