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Ever since the establishment of "one country, two systems" in Hong Kong, there has been continuing controversy pertaining to the boundaries of judicial autonomy in Hong Kong vis-à-vis the People's Republic of China. In particular, the definition of "act of state" and "foreign affair" – matters that are excluded from the jurisdiction of courts in Hong Kong – has been unclear. In FG Hemisphere v. Democratic Republic of Congo, a rare opportunity in Hong Kong's history to explore this issue, Hong Kong's Court of Final Appeal ruled by a 3:2 majority that the decision as to what the law on state immunity is constitutes a foreign affair, and the Chinese authorities' determination on such an issue is an act of state. This article argues that the ruling has to some extent clarified the limits of judicial autonomy in Hong Kong, but failed to secure the maximum boundaries of autonomy permissible under its constitution, the Basic Law. ; postprint

This article explores two questions. First, in adjudicating claims under the Human Rights Act 1998, should the court defer to the executive or legislature on the ground that the latter two institutions possess superior expertise or information-gathering powers, when such expertise or powers fail to generate persuasive first-order reasons for the court? This article argues that rationality requires courts to defer on these second-order grounds of institutional capacity in situations of judicial uncertainty. Secondly, this article examines an underexplored question in the current literature: when is it justified for courts to consider the government as possessing second-order grounds of institutional capacity that warrant deference? It is argued that rational, impartial and open adjudication in the post-HRA era requires the government to prove its claims of superior institutional capacity, and courts to openly scrutinise such claims by considering a number of factors, including, crucially, the government institution's track record of expertise and credibility. ; postprint

It has been more than a decade since China began her experiment of One Country, Two Systems in Hong Kong (HK). It is now generally assumed that the relationship between the legal systems of these two jurisdictions is monistic. Analysing post-Handover constitutional case law in HK, including a recent landmark decision on sovereign immunity, FG Hemisphere Associates LLC v. Democratic Republic of Congo, this article challenges this assumption and argues that the relationship between the two legal systems is best conceptualized as a form of legal pluralism found in the European Union. © 2011 Berkeley Electronic Press. All rights reserved. ; published_or_final_version

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. ; published_or_final_version

Analysis ; "Due deference" - the giving of appropriate weight to the government's judgment in the court's reasoning - is a tool that courts use to maintain the separation of powers in constitutional rights review. This note aims to provide a theoretical framework for understanding the issue of deference, and to analyse the Court of First Instance (CFI)'s approach to deference in two recent cases, Chan Kin Sum and Kong Yun Ming. The author argues that the CFI has adopted a spatial approach that failed to specify the contested issues that called for deference, inappropriately considered democratic legitimacy as a factor for deference and made broad presumptions about the democratic character of primary decisions. This approach may lead to an over-deferential attitude that threatens the separation of powers, and the malleability of the approach may be subject to courts' manipulation. The author argues for a more context-sensitive approach based purely on institutional factors. ; published_or_final_version