Judicial reviews are vital to safeguard good government in Hong Kong
The current public debate by Hong Kong’s top judges and best legal brains on judicial reviews is of paramount importance to Hong Kong.
May I share my experience as both a legal practitioner and a litigant who had issued three judicial reviews against the government, two of which were successful.
Both sides presented valid arguments, but the following fundamental issues must be considered.
Firstly, the Basic Law preserves our common law system, which is the root of judicial reviews. Our development of this branch of the law maintains a sensible threshold for a successful challenge and is in keeping with other common law jurisdictions, including the United Kingdom.
Secondly, before Hong Kong achieves full democracy, judicial reviews are vital to safeguard good government. Under our present political system, the government cannot be voted out. Therefore the judicial review process is the only effective avenue to challenge the legality of government decisions.
Thirdly, nothing in life, including the law, is perfect. The acid test is the practical resul, which in Hong Kong shows that judicial reviews are essential. For example, it is only because of the two successful judicial reviews instituted by the Society for Protection of the Harbour that Hong Kong still has a harbour. The Court of Final Appeal and the High Court judgments had forced the government to give up its plan to reclaim 1,297 hectares (5 square miles) of Victoria Harbour, which would have destroyed the harbour, leaving behind a channel merely 800 metres wide.
Fourthly, judicial reviews are expensive. The unsuccessful applicant will have to bear an adverse order for costs, which may amount to millions.
Furthermore, even the successful applicant can usually recover only about two-thirds of the legal costs the applicant had incurred. Such financial risk is already an effective deterrent against unmeritorious judicial reviews.
Fifthly, they provide a platform for objections to government decisions to be voiced without objectors having to take their case to the streets. Therefore, rather than curtailing the judicial review process, it should be fully supported by the law courts and our community and should even be encouraged to spread to the mainland.
The only hope for a good future for Hong Kong is to retain our system of the rule of law, of which judicial reviews form an indispensable part. They are at present the only effective check and remedy against questionable government decisions.
Winston Chu Ka-sun, former chairman, the Society for Protection of the Harbour