Judicial reviews are what separate Hong Kong from mainland China
Gary Cheung says the right to challenge government decisions, for all its rights and wrongs, must be seen in the context of Hong Kong’s political development
In 1968, a 34-year-old barrister in Hong Kong wrote to a member of British Parliament, John Tilney, to express his concern about the infringement of human rights by the colonial government’s detention of people under emergency regulations, following riots which erupted a year earlier.
“The detention procedure is contrary to all ordinary standards of international behaviour as laid down by international courts and arbitration tribunals in decisions over many years,” the young barrister and secretary of the Hong Kong Bar Association wrote. That barrister, Henry Litton, was one of the few people at the time who spoke out against the arbitrary power of detention without trial.
Under the emergency regulations law, promulgated in July 1967, the government was empowered to detain any person for up to a year without trial.
Forty-seven years later, Litton sparked another debate, this time on whether there was abuse of the judicial review process. Litton, who retired as a non-permanent judge of the Court of Final Appeal in July, said Hong Kong’s courts were effectively facilitating the abuse of judicial reviews. He singled out the failed attempt by student union leader Yvonne Leung Lai-kwok to challenge the government’s political reform package, describing it as “simply grandstanding”.
READ MORE: Hong Kong courts accomplices to abuse of judicial reviews, says former top judge Henry Litton
A judge may decide on the application for leave on the basis of the paper application, or he or she may invite the applicant and respondents for a hearing before deciding whether or not to grant leave.
Litton believed judges should decide without a hearing if there was an arguable case for a legal challenge. Yet, in many cases, he noted, applicants were given a platform by the court for posturing and grandstanding.
On this matter, Litton crossed swords with former chief justice Andrew Li Kwok-nang, who maintains that judicial reviews are fundamental to the rule of law and the courts have an effective mechanism to stop any attempt to abuse the procedure.
The two legal heavyweights’ passion for justice and the rule of law is beyond doubt. But pro-Beijing newspapers and government allies were more than happy to seize on Litton’s criticism as vindication of their own views of the rise in abuse of judicial reviews in recent years. In October, Chief Executive Leung Chun-ying blamed judicial reviews for the delay in construction of some infrastructure projects.
READ MORE: Hong Kong courts’ judicial review screening system is working well, despite a few high-profile abuses
So what is the true picture? In 2007, the Court of Final Appeal raised the threshold for the grant of leave for judicial review. The test to be applied is that the court has to be satisfied that there is a reasonably arguable case, which enjoys realistic prospects of justice. On the whole, between 2008 and 2013, fewer than half of all applications were granted leave to proceed.
It is understandable that Litton, who entered into private practice in Hong Kong in 1959 and became a judge in the early 1990s, may not feel comfortable with the increase in the number of judicial reviews. The growth of judicial reviews has become notable since the enactment of the Bill of Rights in 1991 and people’s growing awareness of their rights.
More importantly, as noted by Andrew Li, the rise in the number of judicial review applications is mainly a reflection of the unsatisfactory functioning of the political process.
Judicial reviews are often viewed as a nuisance by the government as they may result in a delay in the implementation of an administrative decision. But like it or not, judicial review, a process unique to the common law system, sets Hong Kong apart from the mainland.
Gary Cheung is the Post’s political editor