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
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.
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