Why a focus on proper procedure is essential to Hong Kong’s rule of law
Andrew Li says the growth in the number of applications for judicial review is more a sign that the political process isn’t working properly, and recent remarks by retired judge Henry Litton risk confusing the pursuit of efficiency with the delivery of justice
The citizen’s right of access to the courts to challenge decisions of public authorities by judicial review is an essential feature of our legal system based on the common law. Judicial review by an independent judiciary is fundamental to the rule of law and enables our rights and freedoms to be fully protected. It is rightly regarded as a distinctive feature of our system under “one country, two systems”.
A judicial review challenge cannot be made on political grounds. It must be made on legal grounds. These would include that the challenged decision was inconsistent with statute or the Basic Law, that there had been procedural impropriety in making it, and that it was irrational in the sense that it was beyond the range of decisions open to a reasonable decision-maker.
Consistent with developments in other common law jurisdictions, judicial review cases have increased in the last two decades. The challenges are often funded by legal aid. It is not an exaggeration to say that the growth of judicial review has redefined our legal landscape. This has been due to various factors, including the increase in the volume of legislation for the governance of a complex modern society, the enactment of the Bill of Rights and the Basic Law and citizens’ greater awareness of their rights.
Time and time again, I have tried to explain to the community the nature and limits of judicial review. Judicial review cannot provide a solution to the complex political, economic and social problems which confront our society. The role of the courts is only to determine the limits of legality in accordance with legal principles. Within those limits, the answers to those difficult problems must be found through debate and compromise in the political arena. Citizens must look to the political process for their resolution. The responsibility for the proper and effective functioning of the political process of course rests with the executive authorities and the Legislative Council.
With the growth of judicial review, there has been concern that there have been cases where this process has been abused. In these cases, attempts were made to mount a judicial review challenge on political and not legal grounds. In a recent robust and colourful speech, which is characteristic of this senior legal figure, Henry Litton also expressed such concern.
I too am concerned about this phenomenon. I do not, however, think that attributing improper motives to the unsuccessful applicants in such cases would contribute to a constructive debate on this matter. The common view, which I share, is that this is mainly a reflection of the unsatisfactory functioning of the political process. This is, of course, entirely outside the judiciary’s responsibility.
However, it must be emphasised that the courts have effective ways to stop any attempt to abuse judicial review. Unlike ordinary civil proceedings, an applicant must seek the permission of the court to commence judicial review proceedings. Where such permission is refused, they cannot even begin.
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Further, an application must be made promptly and in any event within three months from the time when the grounds first arose unless the court considers that there is good reason for extending time. Moreover, the court may make an appropriate costs order.
Before 2007, the threshold for the granting of permission was relatively low. The test was merely that the case was potentially arguable. In 2007, the Court of Final Appeal discarded this and raised the threshold significantly. 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 success. The court observed that it is in the public interest that challenges which fail this test should not proceed.
The granting of permission is an effective filter. By applying this test, the courts are able to screen out attempts to abuse the judicial review process. Many challenges have been stopped in this way.
But once the court is satisfied that the applicant has shown a reasonably arguable case and grants permission for proceedings to commence, the judicial review challenge cannot be regarded as an abuse of the process. Whatever its eventual outcome, the challenge was allowed to commence as the court was satisfied that it had a realistic prospect of success.
Where a judicial review challenge has been allowed to proceed, this may well result in inconvenience to the public authority as it would involve time, expense and delay in the implementation of the decision under challenge. But under the rule of law, convenience and justice are sometimes not on speaking terms.
READ MORE: Hong Kong courts’ judicial review screening system is working well, despite a few high-profile abuses
It would not be right to view judicial review negatively as a nuisance to government. On the contrary, it should be viewed positively.
As our widely respected former secretary for justice, Wong Yan-lung, observed in a speech in 2008: “Effective judicial review is and remains a cornerstone for good governance”. He stated: “I am convinced and … [this] is shared by many … in the government, that the commitment to the high standards of legality, reasonableness and fairness, and the metamorphosis brought about by judicial discipline at times, will improve public administration, and will make Hong Kong a better society and home for our next generation.”
Litton’s speech, as reported in the media, criticised judges for being insufficiently robust in dealing with judicial review cases and the judiciary generally for not meeting contemporary needs. His comments were no doubt well intended. But, in my view, his criticisms are unjustified.
Litton is known to be an enthusiastic advocate of rigorous efficiency in judicial work. Judges must of course deal with cases with reasonable expedition. This is particularly important in judicial review cases. But it must be strongly emphasised that the pursuit of efficiency must not be at the expense of justice. It is of paramount importance to appreciate that the quality of justice must never be compromised.
In dealing with applications for permission to commence judicial review proceedings, a judge must give the matter due consideration before he can decide whether the test of a reasonably arguable case is met. Where he refuses permission, I can understand why, in appropriate cases, a judge decides to deliver full reasons rather than a terse judgment of a few lines. This would enable the disappointed applicant and the public to understand fully why permission was refused. This would enhance respect for the judicial process. Judges should certainly not be criticised for being conscientious or overconscientious.
The impression conveyed by Litton’s speech is that all is not well with the state of the judiciary. In my view, this does not reflect the true position. While there is always room for improvement and reform, I believe that the judiciary is in good shape. There have been many developments in recent years, including civil justice reform, the promotion of mediation and the progress in bilingualism.
I believe that the judiciary continues to be highly respected by the community. We have good and dedicated judges who are fully committed to serving the community by adjudicating disputes, including those involving government, without fear or favour. Our legal system, based on the common law, enshrines the rule of law and is a cornerstone of our society under “one country, two systems”. It commands confidence both within and outside Hong Kong. I have every confidence that it will continue to serve us well in the coming years and beyond 2047.
The honourable Andrew Li Kwok-nang was first chief justice of the Court of Final Appeal from 1997 to 2010