Legal experts see the increase in judicial review applications as a government failure to provide proper avenues to address grievances, writes Polly Hui
There was much activity in the realm of judicial review earlier this month, with a spate of high-profile cases in one week. On February 18, a two-day judicial review over the constitutionality of the Broadcasting Authority's censure of a RTHK television show on gay lovers kicked off. On the same day, Mr Justice Michael Hartmann also threw out a legal challenge mounted by six asylum seekers, ruling that Hong Kong was not bound by the international principle against returning refugees to a place where their safety might be in danger.
Three days later, 'Long Hair' Leung Kwok-hung applied for legal aid to launch a judicial review in a case concerning the constitutionality of a law that gave the chief executive unfettered power to control who can use the airwaves.
Then the next day, on February 22, Mr Justice Hartmann presided over another judicial review initiated by a Congolese refugee who argued that the government should not have prosecuted him for illegal entry while the UN High Commissioner for Refugees was processing his claim of being a victim of torture.
Judicial review gives the courts the power to review the legality, rationality and reasonableness of the actions of public bodies. But there is now growing debate over their application, as figures from the Justice Department show that the number of judicial reviews has increased substantially over the past decade. In 1988, there were 29 applications. Since 2001, that number has hovered at about 140 each year.
More importantly, the number of cases involving the government rose from less than 100 in 2004 to 130 in 2005 and 128 in 2006.
Statistics from the Legal Aid Department reveal that judicial review is even more popular than can be seen from the Justice Department figures. Between 2004 and last year, the number of applications for legal aid for judicial review surged from 132 to 212. A substantial portion of the applications were turned down: a mere 32 out of 185 applications for legal aid were accepted in 2005-06, and only 73 out of 212 applications were approved in 2006-07.
In both 2006 and last year, Chief Justice Andrew Li Kwok-nang reminded the public that the courts 'could not possibly provide an answer to, let alone a panacea for, any of the various political, social and economic problems'. The problems could only be explored through the political process. '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.
Some legal experts now say that the growing burden on the courts is such that the Court of Final Appeal [CFA] raised the bar for granting leave for judicial review in a ruling it delivered in December. In future, only cases which are 'arguable', instead of 'potentially arguable', can be reviewed in the High Court.
'I personally feel that the CFA decision was an indication of how fed up judges felt towards the large number of politically motivated judicial review applications,' a legal source said. He said the judicial review on the government's reclamation plan for Victoria Harbour was among the worthwhile ones. But many of the challenges mounted by Mr Leung, and the Link Reit case concerning the privatisation of shops and parking spaces in public ownership, were examples of how the system could be abused, the source said.
But he did not think money was a major issue in raising the threshold. 'How much is the rule of law? How much is justice? One cannot put a dollar tag on it,' he said, adding that judicial reviews could also help the government save money in the sense that an administrator who had his decision challenged would avoid making the same mistake again. 'It will help save the cost of rectifying mistakes in future litigation,' he said.
The government was quick to deny any link between its popularity and that of judicial review.
'Allow me to dispel any thoughts that the increase in the number of judicial review applications is an indication of the quality of government decision-making in Hong Kong. There is no such indication whatsoever,' Benedict Lai Ying-sie, law officer (civil law) at the Justice Department, said in a speech at a regional legal conference last June. Instead, he said, the trend was a reflection of increased transparency in government, accessibility to justice and public confidence in the judicial system.
Johannes Chan Man-mun, a veteran barrister and dean of the University of Hong Kong's faculty of law, said the trend was a worrying sign. '[It] is indeed a negative verdict on democratic development - or, more accurately, the lack of it - in Hong Kong.'
Professor Chan said the decision of the highest court was 'a retrograde step'. 'Raising the threshold will make it more difficult to bring judicial review, which is one of the most important means for ensuring that the government operates within the confines of the rule of law. It will stamp out some weak cases, but it may also stamp out meritorious claims,' he said.
At present, an application for leave has to be made no more than three months after the decision being challenged was made, compared with six years for bringing a civil case. The short time limit might only allow the applicant to gather sufficient information for a potentially arguable case, not an arguable one.
'The government is usually not most forthcoming in supplying information, and it is not uncommon that relevant information is disclosed only after leave has been granted,' Professor Chan said.
The change would inevitably mean that more arguments would be required for a leave application and that the arguments would be a pre-run of the arguments of the substantive hearing, he said. 'First, in most cases it may be a waste of resources to run the arguments twice. Second, it may give the respondent an unfair advantage of two bites of the cherry.'
Some legal experts referred to the situation in England and Wales, where the bar on judicial review applications was raised in 1992, and had not had a big impact on the process. 'I don't think the CFA decision will shut out cases with good grounds or compromise the rights of individual citizens or pressure groups,' one expert said.
In response to Professor Chan's comments, a government spokesman said the government must and would act in accordance with law in the disclosure of information.
Although the Court of Final Appeal decision followed the threshold imposed in England and Wales, Professor Chan said attention should also be drawn to developments in other jurisdictions. There is no leave requirement for judicial review in Scotland, Australia and Canada. 'The procedural requirement in the UK has been criticised as unlikely to lead to a more efficient procedure and as being unfair to applicants. The grant of leave has been erratic, and it has generated a lot of arguments on leave application which we have been able to avoid so far,' he said.
Professor Chan and other human rights experts point to the absence of alternatives for judicial review applicants to resolve their disputes.
Mark Daly, a human rights lawyer who has handled a number of judicial reviews in the area of refugees and right of abode, said many disputes could not be resolved in a political process that had no full democracy and when not all the legislators were directly elected. 'In this funny system here, how representative are your legislators? Look at the composition of the Legislative Council. Are they more or less representative than the judges?' he said.
For minorities, the courts and the media were perhaps the only routes for them to get redress, Mr Daly said. 'People who bring human rights cases, in many cases, don't have the political clout to get their remedy through the normal channels. For example, do you think refugees in judicial reviews can possibly get legislators jumping up and down to get a vote for them?'
Mr Daly said Hong Kong's courts should take a more interventionist approach compared with those in places that had full democracy, a view he said was also supported by some academics. 'If the courts were less conservative and less hands-off, the government would be more inclined to say, 'Oh, we don't want to go to court on this. Maybe we should do something about it'.'
Ultimately, the solicitor said the issue boiled down to the non-responsiveness of the government. 'If someone is looking to point a finger at who the bad guy is, don't just look at the applicant, look at the neglect of the area and the lack of proactivity,' he said. 'If the government was more proactive in dealing with concerns of human rights issues, and legislated in these areas, there would be less need for people to seek judicial review and put the burden on the Legal Aid Department and the courts.'
Mr Daly said the problem was also a reflection of the uncertainties created by legislation. It could also be argued that the government was forcing decision-making upon the judges to avoid losing support by initiating controversial reforms, he said.
In some cases, litigants can turn to tribunals, which adjudicate matters including employment, immigration and lands. There is also the Equal Opportunities Commission for complaints on discrimination on the grounds of sex, family status and disability.
However, Philip Dykes, a veteran human rights and constitutional law barrister, said the tribunals were unable to cover all aspects of life and might not always produce a good decision. One of the problems was that not all tribunals were presided over by a lawyer or a judge. 'The resources of the government are not being budgeted to establish a tribunal system which has the resources of a legally qualified chairman,' he said. 'I am not saying there isn't room for laypeople at all. I am saying it is often desirable there should be a legally qualified chairman as a requirement.'
Once they realised the so-called options were not options at all, the litigants would think they might as well give it a go and apply for judicial review, said the barrister. 'I am not saying that it is a good reason for applying for judicial review. But I can see that people are frustrated because they can't get things done otherwise.'