LettersReasoned decisions on judicial review applications are an aspect of natural justice

It is wrong to criticise a judge for giving a reasoned decision on the main points raised by an applicant
These decisions demonstrate to everyone the fair and proper application of Article 35 of the Basic Law, the limits of judicial review and the independence of the judiciary

Hong Kong Basic Law

Letters

Published: 7:30am, 4 Sep, 2021

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Henry Litton’s attack on Mr Justice Coleman’s decision on Kwok Cheuk Kin’s judicial review application is misconceived, an uncalled-for attack on the rule of law and unfair to the judge who cannot answer back (“How Hong Kong judiciary has allowed the Basic Law to be used in political games”, August 28).

It is wrong to criticise a judge for giving a reasoned decision on the main points raised by an applicant. Giving reasons is an aspect of natural justice. As a permanent judge of the Court of Final Appeal in 1998, Mr Justice Litton agreed that giving reasons “would assist in demonstrating to the parties that the Tribunal has carried out its task properly” and “demonstrate to the community that the Tribunal is functioning properly ... engender[ing] public confidence”.

The Coleman judgment is short, indeed shorter than some of Mr Justice Litton’s own judicial review appeal decisions. This judge needed only five short paragraphs to dismiss the Basic Law Article 107 claim, on grounds covering Mr Litton’s very complaint that judicial review proceedings are not the place for non-legal, political or socio-economic grievances.

Mr Litton’s attack on reliance on our Basic Law rights in judicial review is especially misconceived. The Basic Law is a law of Hong Kong and of the People’s Republic of China. The executive is not above the law. People affected by executive action must be able to enforce the law against the executive.

Lord Neuberger, who recently agreed to continue serving in the Court of Final Appeal, has said, “a government which gives people rights on paper without the ability to enforce them, makes a mockery of the rule of law.” Hence the fundamental rights guaranteed by Article 35 of the Basic Law include access to the courts and the right to institute legal proceedings against the acts of the executive authorities.

That access is already well guarded by substantive procedural and merits barriers in law. There are also significant financial disincentives for ordinary folk who would seek judicial review. Legal aid is not generally available to people who have anything more than a small amount of assets. Without legal aid, an applicant for judicial review is exposed to an adverse costs order at every turn.

There is therefore no basis for Mr Litton’s demand that the judiciary “take a hard look at its own culture” to make its “processes more robust” so that cases like Mr Kwok’s can be “dismissed out of hand”. Dismissing cases “out of hand” is neither doing justice nor enabling justice to be seen to be done.

And Mr Litton’s reference to legal aid in this case was entirely inappropriate. Mr Kwok was unaided. Decisions like the one on Mr Kwok’s misconceived Article 107 challenge are important. They demonstrate to everyone the fair and proper application of Article 35 of the Basic Law, the limits of judicial review and the independence of the judiciary.

These are vital components of the rule of law, the cornerstone of our system which must be jealously guarded and upheld, not restricted or undermined.

Nigel Kat, senior counsel, Admiralty