Retired top judge Henry Litton right to question threshold for judicial reviews in Hong Kong
A tighter check is necessary before cases proceed, so as to avoid a waste of time and resources on issues that can be swiftly dismissed
Judicial review is a check on executive power that ensures the government operates within the law. It has been a fast-growing area of common-law jurisdictions. Hong Kong is no exception, thanks partly to legal aid for low-income litigants. The trend has given rise to controversy on occasion when hotly debated administrative and legal decisions on social and political issues have been challenged in the courts through judicial review.
The courts, of course, are not the forum for debating or resolving social issues or airing dissatisfaction with government policies. In the past, such misconceptions have prompted the chief justice and the secretary for justice to emphasise that they are places where judges decide cases in accordance with the evidence and the law and will not be swayed by political issues.
Regrettably, this has done nothing to settle a political debate over whether judicial reviews are serving their proper role.
It has been given impetus by the intervention of a retired distinguished judge of the top court, the Court of Final Appeal, Henry Litton. In the course of a scathing attack on the legal system in which he was, until recently, an eminent figure, Litton hit out at what he described as the misuse of judicial reviews.
“The courtroom is the place for the vindication of legal rights, redress for wrongs done,” he said. “It is not a debating hall or a classroom.” He cited a failed legal challenge to the government’s political reform package by a University of Hong Kong student, a review that delayed a start on the Hong Kong-Zhuhai-Macau bridge and another in favour of HKTV against denial of a free-to-air licence. His remarks reflect the debate between those who consider the courts grant applications for judicial reviews too freely , and those who say that people with an arguable case have nowhere else to go. That such concerns should be aired openly by a veteran of the judiciary raises the question whether the threshold for granting a judicial review should be enforced more rigorously to avoid wasting time and resources on legal arguments and judgments in cases that could be swiftly dismissed. In 2007, the Court of Final Appeal raised the threshold from a potentially arguable case to a reasonably arguable case with a realistic prospect of success, which resulted in a smaller proportion going ahead. Many would empathise with aspects of Litton’s question whether the judiciary is “sleepwalking” towards 2047 in a “world of authorities, legal texts, customs, black letter law”, detached from people whose only language is Chinese. Indeed, most court judgments are handed down in English.