By Leanne Liu
With the increasingly complex political climate in Hong Kong, there has been growing debate about the function of judicial reviews.
Recently, a speech by retired Court of Final Appeal judge Henry Litton created great waves, especially for his comments that judicial review is being “misused”. He named four examples of how judicial review could be costly to the community: TVB’s attempt to prevent the Communications Authority and Chief Executive from granting free-to-air TV licences; Yvonne Leung Lai-kwok’s challenge to the public consultation on political reform; Kwok Cheuk-kin’s case against the Chief Executive’s report on political reform; and the Hong Kong-Zhuhai-Macau Bridge case brought by a Tung Chung resident in 2010.
It is difficult to improve upon former Chief Justice Andrew Li’s magisterial response defending the role of judicial review. However, I would like to add a few words.
First of all, it is helpful to have a basic understanding of judicial review. It is a fundamental right vested in each and every Hong Kong resident. The source of power for judicial review is rooted in Article 35 of the Basic Law which reads: “Hong Kong residents shall have the right to institute legal proceedings in the court against the executive authorities and their personnel.” With this in mind, I find it difficult to agree with Litton’s comment that “the notion that the entire government of the HKSAR should be subject to review is totally absurd.” On the contrary, judicial review provides an important check and balance against the executive. The system exists for a reason.
It is vital to appreciate that mechanisms have been incorporated into the system to prevent abuse. It is not easy to bring a judicial review. The process involves two stages. First, the applicant must apply for “leave” (permission) to start a judicial review. Second, if leave is granted, the applicant can start the judicial review proper. If the court considers that a case is not reasonably arguable, it will not even grant leave. Furthermore, judicial review proceedings must be brought promptly (generally, within 3 months of the grounds for complaint arising).
It is somewhat illogical to cast into doubt the entire system of judicial review by pointing to specific leave applications that have failed. In fact, these failures at the leave stage demonstrate the effectiveness of the in-built anti-abuse mechanism.
As rightly pointed out by Winnie Tam (the chairman of the Bar Association), not every unsuccessful case of judicial review represents an abuse of the system. If a judicial review application is seen as abusive simply because it failed in court, then logically every failed case – whether civil, criminal, or judicial review – would be abusive. In an adversarial judicial system, there is inevitably a winner and loser in each case; that does not necessarily mean the loser has been abusive.
Another major criticism made by Litton is the lengthiness of judgments. He seemed to take the view that, if an application could not even pass the threshold of being reasonably arguable, it would not be worth holding an oral hearing and writing a judgment with dozens of paragraphs. In his words, “piling words to the judgments adds nothing to the jurisprudence”. He reasoned that, in a case, the court can very seldom satisfy both parties; so “does it matter very much to the losing side, whether they lost through mountain of words or clarity of reasoning? They will still be so grieved.”
However, this criticism is perplexing. The length of a judgment is determined by the issues that the judge has to deal with – it is not determined by the conclusion which the judge eventually comes to. The law recognises that a judge should generally give sufficient reasons for a judgment, which should show that he or she has addressed the issues before him or her. This performs the crucial function of showing to the litigating parties – and the public – that the judge has analysed the law and applied it to the case. As Lord Phillips (an eminent English judge who has also sat on our Court of Final Appeal) said in a 2002 decision: “Justice will not be done if it is not apparent to the parties why one has won and the other has lost.”
Litton made a particular complaint about Yvonne Leung’s case: that Leung had listed the Chief Executive as a potential respondent to the judicial review without giving any good reason. However, this complaint appears to have been based on wrong factual premises. The Chief Executive was not named as a potential respondent; rather, he was named as an “interested party”. Under the court rules, an “interested party” is a person (other than the applicant and the respondent) who is directly affected by the application. When applying for leave, an applicant is required to list the interested parties (if any), and to serve the documents on such parties. In Leung’s case, the Chief Executive was clearly an “interested party” since Leung was challenging the public consultation on the method of electing the Chief Executive. In short, the Chief Executive was named as an interested party for the purpose of complying with the rules.
The judicial system is the bedrock of Hong Kong’s success – a factor which makes our city extraordinary. The fact that citizens resort to judicial review shows that the system is still believed to be an effective check against executive powers. Of course, there is always scope to develop or improve the proceedings. But holding a pessimistic view of such an important institution does not help maintain the role of the judicial system in Hong Kong as it is.
Leanne Liu is a lawyer. She speaks Cantonese as her third language and calls Hong Kong home.