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

Author: Cora Chan

Summarised by Jaymie Wong (Associate)

This article argues that some constitutional and institutional reasons for deference actually were not valid grounds for courts to defer in Hong Kong in the case of W v Registrar of Marriages.  

The author argues strongly against that the courts should defer to the government’s perspective additionally when assessing whether a policy is constitutional.  

Deference and the separation of powers 

Deference is a form of judicial restraint to uphold and facilitate the separation of powers. Institutionally, deference allows the most capable organs to perform their functions effectively; constitutionally, deference upholds the constitutional values of society including respect for majority rule.  

Deference applied in the W judgment 

The CFI allowed the government to define the right to marry – what is marriage, who are entitled to the right.  

The CFI suggested 3 major reasons for deferring to the government: 

Courts should respect the democratic will, leaving the elected Legislative Council (LegCo) to reform marriage laws. 
Courts are less able to resolve issues that have far-reaching implications than the government. 
Courts are less capable of finding the societal consensus on marriage than the LegCo. 
The author argues that all 3 reasons are not valid for courts to defer to the government. 

Constitutional ground for deference: respect for democratic will 

CFI’s position: 

The majority will should decide when issues involve policy concerns. Courts were not elected and lack the democratic will to decide on policy issues. 

 Arguments against: 

Courts would respect the majority will to the extent that it is constitutional. No policy concerns can be above the constitution. Hong Kong courts should make an independent judgement on whether certain policies are in fact constitutional or not, effectively scrutinize the government’s policies and strike down any majoritarian preference that does not comply with constitutional requirements. If the courts defer to the government when judging whether a policy is constitutional, the courts are not fulfilling their own responsibilities in safeguarding the constitutional rights.  

In addition, the importance and tradition of ‘preservation of parliamentary sovereignty’ is only deeply rooted in the UK but not in Hong Kong. In Hong Kong, the courts serve an important role of guarding constitutional values against majority decisions. The CFI in W argued that the case is exceptional that the right to marry is defined by society but did not give clear explanation on why marriage is defined by societal consensus and freed from constraints of constitutional principles. The author counter-argues that the fact that marriage serves important functions in society (for example: distribution of resources) gives a stronger reason for it to be scrutinized by principles of equality and fairness under constitution.  

Courts should ensure that the majority does not walk over constitutional rights. Courts are obliged to depart from majority will when it is necessary to uphold constitutional values. In fact, courts in Hong Kong have previously played roles in changes in social values. Examples include allowing prisoners to vote and striking down buggery laws. The courts did not defer to the government or public when making such value judgments.  

 Constitutional and institutional grounds for deference: polycentric issues 

CFI’s position: 

Courts lack information to assess policies and are institutionally incapable of making decisions that have far-reaching implications. The courts’ decision-making process is also constitutionally illegitimate because other impacted parties cannot participate in the courts’ decision. 

 Argument against: 

It should be noted that courts are only asked to adjudicate the particular case where certain policies are potentially unconstitutional. The court in W is only asked to decide on 2 specific issues (1) Given the applicant’s circumstances, whether the applicant can marry under the existing law? And alternatively, (2) Whether the existing marriage law that excludes transsexual persons’ right to marry in their desired gender is constitutional? The author argues the courts are capable of deciding on the issues both institutionally and constitutionally. 

 CFI’s position: 

It is better to make legal changes on same area of law by introducing comprehensive legislation at one go to ensure coherence across the different affected areas. 

 Argument against: 

Ideally, comprehensive reforms can be introduced by the government together. However, in reality, the government are rather unwilling to initiate such large reforms, while litigations on rights arise on case-by-case basis. Where legislative reform is not expected, the judicial plays a greater role to safeguard rights protection in individual cases. Courts are again institutionally and constitutionally able to adjudicate on such individual cases thus prompt legislation. 

Institutional grounds for deference: information, expertise, value judgments 

CFI’s position: 

The government is in the better position to judge policies or make value judgments because the courts lack the information and expertise to do so.  

Argument against: 

The Court in W did not explain why LegCo would ascertain what the social consensus on marriage is better than the court. The court may have assumed that the elected LegCo is in a better position to reflect majority’s opinion, yet it is argued that the court could be as capable as the government or even more capable than the government in determining the constitutionality of policies.  

Rebuttals: courts are at least as capable as the government in adjudicating the constitutionality of policy 

Courts can gather information through evaluating the reasons and evidence given by experts before the court. Other complex medical and construction cases also require expert opinion in which the courts can come to independent conclusion without deferring the case. The government should bear the burden of giving reasons and adducing evidence to convince the judge that the policies are constitutional, while the courts can form an independent judgment.  

Information gap? 

There are only very narrow circumstances that the government cannot provide information to the court. Those extreme circumstances are limited, which include national security concerns. This is not the case in W, the government can simply adduce evidence in courts and therefore the ground of lack of information is invalid. The author argues that the courts are as capable as the government to determine the social consensus.  

Expertise and value judgments 

How to interpret ‘societal consensus’ and how much information is required to ascertain consensus involves value judgments. Courts can infer the definition of ‘consensus’ from evidence present in courts. Hong Kong courts previously have also emphasized the importance of adopting a liberal approach in interpreting rights. Although the CFI in W rejected, the author argues the courts may interpret ‘consensus’ broadly. The courts may consider whether the public has become more understanding towards transsexuals and whether the public view procreation as crucial element in marriage, these factors may well point towards a societal consensus.  

The author argues that the courts seldom lack information as compared to the government, rather both the government and courts lack information. Again, the CFI in W is be fully capable of evaluating reasons presented in court including the government’s views. 

Positive case: factors that may render courts more capable than the government in adjudicating the constitutionality of policies 

The author suggests the courts are actually in a better position than the government to judge on 2 grounds. 

Non-foreseeability 

The government and courts are designed to tackle issues with different perspectives. The government generally takes into account general and broad policies in achieving certain policy goals; the courts on the other hand focus solely on the case before them narrowly. There are scenarios not foreseeable by the government in which the government failed to consider.  

In fact the LegCo has never ascertained the social view on the right of marriage for transsexuals. The relevant Hong Kong provision is identical to the UK provision and is adopted from the UK provision. It could only be said that we adopted the UK parliament’s legislative intent. There was no actual intention from the Hong Kong LegCo. Further, in any case, the then LegCo was not elected. It is hard to conclude the LegCo represented society’s view on the issue. The CFI deferred to a presumed interpretation of societal consensus by the LegCo which was not elected. This basis for deference is not convincing. The then LegCo did not foresee how the proposed law would affect the applicant’s position with the specific facts and circumstances, whereas the CFI in W has all the specific information presented before the court which arguably is more capable of deciding constitutionality than the then LegCo. 

Protection of individual rights 

Any inroads to constitutional rights can only be made if it is necessary to achieve public interests. Legislators have strong incentive to vote in favour of majority at the cost of individuals due to electoral pressure. On the contrary, courts do not face such majoritarian pressure. Courts are in a better position to adjudicate claims impartially and resolve issues based on reason and evidence and safeguard rights of individuals in minority.  

Where does that leave the role of the government?  

The LegCo and the executive have the primary responsibility to formulate policies that provides for social needs while the courts have a secondary responsibility to ensure the policies comply with the constitution. The courts cannot replace the government’s role in deciding for political, social and economic issues.  
 
Critique: 

I agree that the courts can be more active to decide on cases even there are policy concerns instead of always deferring to the government. Although the government is in a better position to determine resources allocations, this cannot tramp over constitutional rights. The courts should intervene whenever necessary to protect minority and ensure equality.