Former Secretary for the Civil Service Joseph Wong Wing-ping has slammed Chief Executive Leung Chun-ying’s criticism of judicial review as disrespecting judicial independence and damaging Hong Kong’s rule of law.
In a column entitled “Government officials should not criticise judicial review” published in the Chinese-language newspaper AM730 on Friday, Wong wrote: “Chief Executive Leung and some other government officials dislike people using judicial reviews to challenge the government’s decisions, which makes us more certain that we need this mechanism as a check and balance on the government’s abuse of power.”
Leung said on Tuesday that there were cases of the judicial review system being abused, often on issues of land, housing and politics in the Hong Kong government. In October 2015, Leung also commented that judicial review was one of the reasons why infrastructure projects were delayed.
“For example, the construction of the Tuen Mun-Chek Lap Kok Link, which could act as a substitute for Tsing Ma Bridge, has been delayed for a year because of the judicial review action against the Hong Kong-Zhuhai-Macau bridge – otherwise the road link could be in use in two years from now, rather than three,” he said
At the Ceremonial Opening of the Legal Year 2016 on Monday, both Chief Justice Geoffrey Ma Tao-li and current chair of the Bar Association Winnie Tam refuted claims on judicial review system being abused in their speeches.
Ma said that it is irrelevant to look into the motives behind cases of judicial review. “To be preoccupied with the motives of the parties before the court will not be helpful in reaching a proper legal outcome. I reiterate this point: that judicial reviews are all about legality and not the merits or demerits of a political, economic or social argument,” he said.
Meanwhile, Tam responded to criticisms of barristers encouraging their clients to apply for judicial review, and earning legal fees at the expense of public funds. She said that the success rate of legal aid applications in judicial review cases had consistently been around 25 percent, which represents 5 percent of the total legal aid funds used. This shows that claims of abuses of judicial review had been exaggerated, she said.
Former Chief Justice Andrew Li Kwok-nang has also said that judicial review is fundamental to the rule of law and should not be viewed negatively as a nuisance to the government. Li was attacking retired Court of Final Appeal judge Henry Litton’s earlier comments about the abuse of judicial review. Litton criticised a case lodged by Yvonne Leung Lai-kwok, former President of the University of Hong Kong Students’ Union, who had sought judicial review for restarting the city’s public consultation on political reform, albeit in vain.
Wong added that the Basic Law ensures Hong Kong’s legal system is different from that in the mainland, and Chief Executive has the constitutional duty to implement the Basic Law.
“As Hong Kong’s government officials, every time they say that the judicial review system is abused – but never mention that the court safeguards the threshold of application – it makes Hongkongers doubt if they are really fulfilling their responsibilities in defending Hong Kong’s rule of law!” he wrote.