Deference is a controversial, if not also a dangerous, concept.
57
In a systemsubscribing to the doctrine of separation of powers, there will be areas which are
within the exclusive domain of the three branches of government. The court, in
exercising its judicial power, should not step into the shoes of the executive.
Wednesburyunreasonableness is a classic example where the court tries to confine
merits review to the more extreme cases. The doctrine of proportionality requires
the court to exercise a heightened degree of scrutiny when human rights are at
stake. The doctrine of deference tries to put a brake on aggressive judicial review on
merits. It is traditionally justified either on democratic grounds, namely that the
court lacks the mandate and legitimacy to second-guess the wisdom of a democrat-
ically elected body, or on the ground of a lack of expertise and information.
While these are powerful justifications, the risk is that whenever the doctrine of
deference is invoked, it usually results in a rather loose standard of review, and the
court fails to consider the justifications at all. It has been less of a problem in civil
and political rights, where the court stressed that ‘deference must not be carried to
the point of relieving the government of the burden which a constitution places
upon it of demonstrating that the limits it has imposed on guaranteed rights are
reasonable and justifiable’. However, the same degree of vigilance is not seen in
social and economic rights.
InKong Yunmingv.Director of Social Welfare, the issue was whether the
introduction of an eligibility requirement of seven years’ residence violated the
right to social welfare of Hong Kong Residents (who were granted a right to enter
Hong Kong for settlement but have not yet acquired the status of Hong Kong
Permanent Residents), contrary to Article 36 of the Basic Law. Both the Court of
First Instance and the Court of Appeal emphasised that it would be slow to enter
into questions concerning the allocation of scarce resources, an issue that is
inherent in the adjudication of social and economic rights.^58 Stock JA pointed
out that Article 36 of the Basic Law did not specify any particular type or level of
social welfare. Article 145 further provides that the government can, ‘on the basis
of the previous social welfare system’, formulate policies on the development and
improvement of this system in light of economic conditions and social needs.
Thus, the Court of Appeal concluded that the determinations of appropriate kinds
of social welfare would be a matter for the executive government. The Court of
First Instance suggested that the court should give deference to the decision of the
executive government and should not interfere with its decision unless its decision
was discriminatory. While Stock JA preferred not to adopt the notion of deference,
the learned judge held that the court would adopt a low level of intensity of review
(^57) See Jeffrey Jowell, ‘Judicial deference: servility, civility or institutional capacity?’ ( 2003 )
Public Law 492 – 601 ; T.R.S. Allan, ‘human rights and judicial review: a critique of “due
deference”’ ( 2006 ) 63 Cambridge Law Journal 671.
(^58) CACV 185 / 2009 ( 17 Feb 2012 ).