Judicial review cases in sharp fall

PUBLISHED : Thursday, 19 July, 2012, 12:00am
UPDATED : Thursday, 19 July, 2012, 12:00am


The number of applications for permission to lodge a judicial review last year dropped by a fifth from a peak figure of 149 cases in 2005.

Benny Tai Yiu-ting, law professor at University of Hong Kong, who compiled the figures for a new book on judicial reviews and good governance, describes the sharp decrease as 'remarkable'.

Tai says one reason could be the Court of Final Appeal's decision in 2007 to raise the bar from the requirement of a potentially arguable case to a reasonably arguable case with realistic prospects of success.

Since the caseload peaked in 2005, the number remained relatively stable until last year when the total fell to just 110. But Tai points out that it is still four times the caseload in 1988 when just 29 people applied.

Tai says while substantial legal costs are unavoidable for judicial determination on government's exercise of power - especially when Hongkongers have more confidence in the judiciary than the executive or the legislature - the government could reduce costs by resolving challenges through mediation.

Legal aid is also a determining factor in whether a judicial review applicant would win the challenge, says Tai. 'If you are not legal-aid-funded, it is virtually certain that you will lose the judicial review,' he says, adding that this leads to the 'sensible decision' by some to pick an underprivileged individual to secure legal aid to mount a challenge.

Tai cites former chief justice Andrew Li Kwok-nang in calling it a 'mistaken view' to think that launching a judicial review is an abuse of court resources.

'It would not be right for judicial review to be viewed negatively as a hindrance to government ... it should be seen as providing an essential foundation for good governance under the rule of law,' Li said.

Explaining the increase in judicial reviews since the handover, Tai says this is partly to do with the fact that the Basic Law - Hong Kong's mini-constitution - sets out some fundamental human rights, interpretation of which is open to challenge. Tai also cites Li as saying another factor is that government is regulating a wider scope of matters than before.

A better-educated public are also more aware of their rights, while judicial review has become a tool for various organisations to fight for rights and freedoms.

In his book, Tai, who has more than 10 years' experience in training professional grade government officers on the topic of judicial review, provides a checklist for civil servants to follow to ensure their decisions are up to the standard required by law.

Tai says simply aiming to avoid a potential challenge is a 'passive' approach, and calls on civil servants to treat the fear of a judge watching over their shoulder as a motivation.

'Civil servants should not only be aiming not to make any mistakes so that their decision would not be overturned,' he says. 'Instead they should take a step forward to reflect on the existing administrative measure and ask themselves whether there are any ways to improve the standard of governance.'