Deference as Proper Judicial Attitude – With Special Reference to Anti-Mask Law Judgments

Abstract

The anti-mask law case mainly deals with the constitutionality and legality of the Emergency Regulations Ordinance (Cap 241) (ERO) and the Prohibition on Face Covering Regulation (Cap 241K) (PFCR). The ERO allocates power, while the PFCR restricts rights. The Court of First Instance (CFI) struck down the ERO on the ground of separation of powers and the PFCR on the ground of disproportionality. The Court of Appeal (CA) set aside the CFI’s declaration of unconstitutionality with respect to the ERO and parts of the PFCR. The difference between the CFI and CA judgments lies not only in the outcome but also in the degree of deference. This article provides a reflective commentary on the judgments by the CFI and the CA from the perspective of judicial deference. It starts with the proper role of the courts under the separation of powers in Hong Kong. Next, it introduces deference as a sensible judicial attitude and delineates the requirement of deference under Hong Kong’s constitutional framework. Then, it applies deference in the analysis of the anti-mask law case and examines the degree of deference shown in the judgments of the CFI and CA. The main idea is that deference is required by the separation of powers doctrine and in the specific context of the case, whereas insufficient deference has led the CFI to a controversial and not amply justified conclusion, which had been later overturned by the CA.