Minister lays down the law over right to seek judicial reviews

PUBLISHED : Tuesday, 15 January, 2008, 12:00am
UPDATED : Tuesday, 15 January, 2008, 12:00am

The secretary for justice has used the opening of the legal year to remind Hongkongers that their right to have government decisions judicially reviewed is a limited one.

The comments by Wong Yan-lung seem to be aimed at stemming the rising tide of applications by members of the public to have government decisions reviewed.

'Public interest must be the paramount consideration and the rule of law must be vigorously upheld,' Mr Wong said. 'Every man, whatever his rank or position, be it the chief executive or the average citizen, is subject to the ordinary law and amendable to the courts.'

In particular, without identifying the parties involved, he singled out two recent rulings.

The first was an attempt to avoid paying the government's costs by the people behind the failed review of the decision to demolish Queen's Pier. In that case, the High Court sought to clarify what was meant by 'public interest'.

'Whether the proceedings were brought to advance public interest cannot be dictated by the applicants' own perception of public interest,' Mr Wong said. 'The question has to be assessed objectively, and the relevant interest is the interest of the community as a whole.'

The use of judicial review over Queen's Pier was described by Martin Lee Chu-ming as performing the role of a proxy in place of fully representative and responsive government.

Mr Wong also used his speech to endorse a November decision by the Court of Final Appeal that raised the bar in terms of the test the courts will use in determining whether or not a review should proceed.

Instead of having to show they have a case that is potentially arguable, applicants will now have to show their case is one that is actually arguable.

Mr Wong quoted from the Court of Final Appeal's judgment.

'Whilst in a society governed by the rule of law it is of fundamental importance for citizens to have access to the courts to challenge decisions made by public authorities on judicial review ... the public interest in good public administration requires that public authorities should not have to face uncertainty as to the validity of their decisions as a result of unarguable claims. Nor should third parties affected by their decisions face such uncertainty,' he said.

The minister's comments come a week after the Court of Appeal warned against what it described as a growing fashion in Hong Kong for people in criminal cases to apply for judicial reviews of decisions relating to the conduct of those cases.

'Judicial review is a remedy of last resort,' the court said. 'Where another adequate remedy is provided, that alternative should normally be used.'

That judgment also described the higher threshold set by the Court of Final Appeal as 'a more realistic filter' for deciding whether to proceed with a review.