A bulwark against the abuse of power

PUBLISHED : Saturday, 04 August, 2012, 12:00am
UPDATED : Wednesday, 15 August, 2012, 10:58pm


Judicial review is a means by which anyone can challenge the actions of government they contend are an abuse of power. Thanks partly to legal aid, many people actually do so. The number of applications for permission to lodge judicial reviews peaked at 149 in 2005 and, until last year, remained stable. Meanwhile, the number granted help by the Legal Aid Department rose from one in seven applications in 2001 to one in three in 2010. It comes as a surprise, therefore, that the number of applications last year for permission to lodge a judicial review fell by 20 per cent, to 120. University of Hong Kong law professor Benny Tai Yiu-ting says one reason could be the top court's decision in 2007 to raise the bar for hearing a case from potentially arguable to having realistic prospects of success. But if so, it has taken a long time to kick in.

It is too soon to identify a trend or speculate on reasons. Ironically, applications fell in the same year as two controversial cases that prompted questioning by pro-government politicians of the use of judicial reviews to challenge government policy or decisions.

One that held up construction of the Hong Kong-Zhuhai-Macau bridge over environmental issues added billions to the cost before the government won the go-ahead on appeal. Another involving domestic helpers' claim to right of abode, in which the applicant helper has been granted leave to appeal to the top court, continues to divide the community sharply.

In the latter case, former secretary for justice Wong Yan-lung appealed to the public to refrain from comment that might prejudice or affect the court's deliberations.

One pro-government politician asked whether there was any way to stop lawyers making money out of such legally aided cases, which could have been seen as a thinly veiled attack on judicial reviews and the independence of the judiciary, prompted by rulings against the administration. It is important to strike a balance among core principals enshrined in the Basic Law - the freedom of speech that critics of judicial reviews were exercising, the independence of the judiciary and equality before the law.

Not only does judicial review empower ordinary citizens against abuses of power, but legal aid is a system by which people of limited means can have equal access to justice.

If the sudden fall in applications is a sign of greater willingness to try to resolve conflict without resorting to the courts then it is welcome. Professor Tai rightly points out that the government could reduce costs by resolving challenges through mediation.

However, judicial reviews are likely to remain a popular avenue of redress on social issues so long as the city does not have elected government or a fully democratic legislature.