A sign of policy failure, not conspiracy
Some eyebrows were raised when Vice-President Xi Jinping called for 'mutual understanding and support' among the executive authorities, the legislature and the judiciary during a visit in Hong Kong in July.
Given Beijing's reported dismay at the time with certain court rulings against the executive branch since the handover, Mr Xi's remarks raised questions about Beijing's understanding of judicial independence.
What message Mr Xi tried to convey was anybody's guess. If it caused unease, it was because of the widely held view within the pro-Beijing camp that the powers of the executive branch have been undermined by courts when they ruled against the government in judicial review cases.
The past fortnight have seen two court cases of this kind. One concerns how the Immigration Department handles torture claims by asylum seekers, the other involves a ban on prisoners' voting rights.
Prominent past cases include a last-ditch lawsuit by public housing tenant Lo Siu-lan against the Housing Authority's listing of The Link Reit. The Central-Wan Chai bypass project has also seen repeated court challenges by harbour protection activists.
Some critics argue that in cases such as The Link and the bypass project, activists have abused the judicial review process to block and, if that fails, delay government policies and projects.
Government figures show a sharp rise in the number of applications for judiciary review: about 150 applications a year since 2004, up from 29 in 1988. This year up to November, there have been 118 applications.
Last week, Chief Justice Andrew Li Kwok-nang and Secretary for Justice Wong Yan-lung put the sensitive issue in a balanced perspective in speeches they presented to a conference entitled 'Effective judicial review: a cornerstone of good governance'.
While saying the increasing number of judicial reviews should be viewed in a 'constructive and positive way' by the public and the government, Mr Li sought to clear any misunderstanding over the role and limits of courts: 'The court is only concerned with what is legally valid in accordance with legal norms and principles.'
'The court,' he said, 'cannot provide a solution to any of the various political, economic and social problems ... the appropriate solution ... can only be found through political process'.
Mr Wong cautioned that 'for judicial review to be truly effective to improve governance, it is important that the remedy be used responsibly and appropriately'.
The question of whether there have been abuses in recent years is a matter of opinion, he said, noting that courts also functioned as a gatekeeper against abuses.
A more relevant, valid question is how the executive branch has tried to resolve the issues at stake in judicial review cases through the political process before they reach the courts.
Cases like the removal of inmates' right to vote and the alleged torture of asylum seekers could have been resolved if relevant bureaus had been proactive in reviewing the policy and administrative procedures.
That more people are resorting to courts for remedy over alleged unconstitutional acts by the government can be seen as government's failure to find a solution acceptable to all parties.
This is not necessarily because the differences are plainly irreconcilable. The truth perhaps is that a feeling of policy inertia has dampened any sense of urgency among ministers and officials in deactivating the various constitutional time bombs through policy formulation.
Mr Wong said judicial reviews had prompted the executive branch to be more vigilant towards legality and fairness in policy formulation.
That remains to be seen at the political and administrative levels.
Chris Yeung is the Post's editor-at-large.
