Judiciary has rightful role as the 'auditor of legality'

PUBLISHED : Tuesday, 22 May, 2012, 12:00am
UPDATED : Tuesday, 22 May, 2012, 12:00am


Tsinghua University recently set up a research centre for the study of Hong Kong and Macau affairs in Shenzhen. The opening ceremony was attended by many prominent mainland academics, including some from the legal field.

On that occasion, they took the opportunity to offer advice to the new administration in Hong Kong that is due to take office on July 1.

One opinion was that there is 'too much' separation of powers in Hong Kong; that the judiciary takes on a too-prominent role in running Hong Kong at the expense of an executive-led government; and that it was wrong to allow a private citizen to initiate judicial review proceedings which delayed a national infrastructure project for a few months.

Under 'one country, two systems', the former must unreservedly trump the latter, according to this thinking. The Hong Kong people are reminded that the high degree of autonomy, which we enjoy under the Basic Law, is only at the suffrage of Beijing.

We are no strangers to this kind of rhetoric from mainland officials and legal academics. Over the years, the makers of these statements have become much more outspoken. Some statements are dressed up as legal theories and doctrines. No doubt they are voiced in an attempt to influence the governance of Hong Kong.

In recent years, Hong Kong professionals from all disciplines have been invited to attend national study courses in mainland universities to learn and understand more about these theories and doctrines. Mainland officials clearly believe that adults should also not be immune from national education of this sort.

Some may feel that these doctrines would slowly become an inevitable reality in the not-too-distant future.

However, a further look into these mainland doctrines reveals the most fundamental misunderstanding about our constitutional arrangement under the Basic Law, our system of government, and the core value that makes Hong Kong unique - the rule of law.

The supervisory jurisdiction of the courts is well known as one of the great historic artefacts of the common law. In judicial reviews, contrary to what these mainland academics think, judges are not asked to usurp the functions and powers of government.

The late Lord Bingham, in his book The Rule of Law, said that the function of judicial review is for judges to review the lawfulness of administrative action taken by others: 'They are the auditors of legality; no more, but no less.'

The court's jurisdiction in a judicial review is based on the paramount presumption that any executive decision made will be in accordance with the law. It is an irrefutable presumption: one that is conclusive and cannot be trumped in a society based on the rule of law.

In exercising their judicial powers to hold government departments, ministers and public bodies to account, the judges usurp no one else's authority. That crucial point is often misunderstood. Judges are exercising a constitutional duty that the rule of law requires of them. This is an inescapable consequence of their function and duty. Judicial review is not a denial of executive power or legislative sovereignty, but an affirmation of it.

The separation of powers is unacceptable to some because they believe power must only come from one source; that 'one country' must come before 'two systems', and the former naturally has priority over the latter.

These statements have no legal foundation, and cannot be supported by the text of the Basic Law. Yet the text does not matter to them, as they look behind the text to find the so-called real intention to justify what they say the law actually means.

The Basic Law is not a contract which the mainland authorities can unilaterally reinterpret or tear up on a whim. It is the very foundation for our way of life - something which we have a duty to defend.

Dennis Kwok is a barrister and founding member of the Civic Party