A needless burden for judges
The increasing number of judicial review cases in Hong Kong is cause for concern, said Chief Justice Andrew Li Kwok-nang this week, addressing the opening of the legal year. The comment was ironic, given the pre-1997 speculation that the courts' powers of review would decline after the handover - or at least face arbitrary interference by the mainland.
But that has not happened. Instead of gradually disappearing from the scene, judicial reviews have increased. Hong Kong, it seems, now has too much of a good thing. As the chief justice pointed out, the number of judicial reviews increased from 116 in 2001 (not counting right-of-abode cases) to 149 last year.
The problem, in the eyes of the chief justice, is that the courts are too often being given the task of sorting out political problems, which properly should be resolved by the executive and the legislature. 'The courts could not possibly provide an answer to - let alone a panacea for - any of the various political, social and economic problems which confront society in modern times,' he said.
Mr Justice Li attributed the rapid increase in judicial review cases to three factors: the increasing complexity of modern life; the enactment of new constitutional instruments, which can be used to challenge executive and legislative acts; and better-educated citizens more conscious of their rights, seeking to protect their freedoms and rights by invoking the law.
The government, he noted, had created the environment in which individuals were increasingly resorting to judicial review. 'The responsibility for the proper functioning of the political process in the interests of the community rests with the administration and the legislature,' he said. Thus, the courts are being saddled with problems that stem from the improper functioning of the political process, which is the responsibility of the executive and the legislature.
In Hong Kong, where there is at least in theory an executive-led government, and where the legislature has intentionally been made weak, the bulk of the responsibility must fall on the executive branch of government.
Take the Link Reit case, which was a judicial review brought by two tenants of public housing estates. They were opposed to the Housing Authority's controversial plan to create a $21.3 billion real estate investment trust by privatising shopping malls and car parks in housing estates.
The government never bothered to have legislation adopted to guard against a legal challenge. Even after the process began, the government had ample time to go to the Legislative Council and ask it to pass emergency legislation. Instead, the government bypassed the legislature and, as a result, became bogged down in time-consuming - and very costly - court proceedings.
Similarly, during the controversy over the West Kowloon arts hub, the administration again tried to bypass the legislature - seemingly for fear that lawmakers would reject their proposal.
If that was indeed the reason, then it is a sad reflection on a political system in which voters do not have the right to elect a government, but only lawmakers - who are then inclined to oppose the government in order to prove their concern for the public welfare.
If Hong Kong had a government that was rooted in the people, this would not happen. A government with a strong majority in the legislature would not try to bypass lawmakers.
And the resolution of political issues by political means would lift a needless burden from the shoulders of our judges.
Frank Ching is a Hong Kong-based writer and commentator
