OpinionJudicial 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

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Leung Chun-ying has blamed judicial reviews for the delay in some infrastructure projects, including the proposed bridge to Macau and Zhuhai. Photo: Felix Wong

Published: 6:06pm, 28 Dec 2015Updated: 6:06pm, 28 Dec 2015

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

Retired judge Henry Litton said Hong Kong’s courts were effectively facilitating the abuse of judicial reviews. Photo: Bruce Yan

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.