Judicial review legal aid bids on the rise
The public's level of frustration with the government is far higher than can be gauged from everyday courtroom scenes, statistics from the Legal Aid Department show.
The number of applications for legal aid for judicial reviews increased from 138 in the 2002-03 financial year to 212 in 2006-07. However, as many as 110 to 150 applications were turned down each year.
For last year, the department said a total of 234 applications for aid had been lodged. But only 99 of them were approved, after the department assessed their merits.
In recent years, about 140 judicial reviews were filed with the High Court each year. This figure could have been higher, if the unsuccessful legal aid applicants had found alternative means to foot their legal bills.
Judicial review refers to the power of the court to review the legality and reasonableness of the decisions of the government and other public bodies.
But cases against the administration always take up the largest portion of the judicial reviews. For example, 100 of the 150 judicial reviews in 2004, 130 of the 155 reviews in 2005 and 128 of the 132 reviews in 2006, involved the government, statistics from the Department of Justice show.
The trend has prompted many legal experts and politicians to criticise a Court of Final Appeal decision in November to raise the bar for seeking leave for judicial reviews. In future, the court ruled that cases have to be 'arguable', not just 'potentially arguable', in order to obtain leave for judicial reviews.
'Judicial review is one of the most unique and renowned features of our judicial system. Its popularity reflects the flaws in our political system and public confidence in the courts,' legislator and barrister Margaret Ng Ngoi-yee said.
'I am extremely concerned about what would happen to the powerless people if the route to JR - their only resort to seek justice - is taken away from them,' Ms Ng said. However, a spokesman for the Department of Justice said that over the years as many as 80 per cent of challenges taken out against the government by way of judicial review were unsuccessful. 'The increasing number of judicial review applications has been contributed to by, among others, a greater awareness of the public in asserting their rights by way of legal proceedings,' he said.
Mark Daly, a human rights lawyer who has represented many refugees and right of abode claimants, said: 'In many of the cases we deal with in the immigration area, I think there's too much discretion with the authorities. If the legislation was more specific, that would cut out uncertainty, people would know more where they stand. More transparency and fairness may result in less likelihood that they would resort to JR,' he said.
Legislator 'Long Hair' Leung Kwok-hung said he had always been unfairly portrayed as putting on a show when he challenged the government through judicial reviews. 'One of the biggest deficiencies in our mini-constitution is the limited role of the legislature, which has no teeth to effect major changes in policymaking. The remedy should be given by expanding the role of the courts, and more specifically, judicial reviews. But the Court of Final Appeal has done the opposite,' he said.
The Department of Justice spokesman said it was inaccurate and unfair to say that a higher threshold would mean meritorious cases would be screened out.
He cited Chief Justice Andrew Li Kwok-nang's ruling in the top court: '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.'
