The future of judicial review in HK
Updated: 2013-02-06 06:10
By Andrew Mak(HK Edition)
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The topic of judicial review occasionally emerges in the political arena and in discussions about the rule of law in Hong Kong. This article looks at the topic from a legal perspective.
A recent Ministry of Justice consultation paper from the United Kingdom has observed that "Judicial Review is a critical check on the power of the State, providing an effective mechanism for challenging the decisions of public bodies to ensure they are lawful" and that it "can be characterized as the rule of law in action, providing a key mechanism for individuals to hold the executive to account". That is a succinct account of what lawyers commonly understand to be the process of judicial review.
Commonly understood, judicial review is a court proceeding in which a judge reviews the lawfulness of a decision or action made by a public body. Put in another way, judicial review is a challenge to the way in which a decision has been made, rather than the rights and wrongs of the conclusion reached. According to the UK Judiciary's website, it is correct to say that judicial review is not really concerned with the conclusions of that process and whether those were "right", as long as the right procedures have been followed. The court will not substitute what it thinks is the "correct" decision.
This last aspect of the implication of judicial review has been largely ignored.
Instead judicial review is seen as just another appeal, one that is indeed popular politically. This is despite the fact that it is not always more effective or better than an appeal to a higher court. It has become a last resort in attacking difficult policy decisions. A wide variety of cases in the UK, as in Hong Kong, demonstrate how judicial review has become a popular vehicle for preventing authorities from exercising their duties to provide various welfare benefits and potentially discriminatory education policies. Judicial review is also the last resort instrument to attack decisions of the immigration authorities and/or the relevant immigration appellate authority.
There has been criticism from the political arena that judicial review can serve as a deterrent to good and efficient administration. Furthermore, the judiciary does not have sufficient resources to handle the increasing number of cases. Any criticism of judicial review lies largely in the ignorance of the other side of the coin, that is, the existing procedure for judicial review already deviates from ordinary civil procedure in marked ways, which serve to afford strong protection to interests in efficient and vigorous administrative decision-making, for example: a very short three-month time limit, the requirement for leave to proceed to a full hearing, the general absence of an oral hearing at the leave stage, considerable restriction on discovery, and last but not least, restrictions on oral evidence and cross-examination.
In a modern society such as Hong Kong, which is a regional dispute resolution centre, judicial review ought to be looked at in a mature way. The question remains - where is the balancing point for the public interest in upholding the rule of law as well as the good and efficient administration? The question should not be whether or not judicial review procedures have been abused.
It may be useful to conclude by drawing upon experience in the UK, where consultation has been conducted in relation to judicial review procedure. It has been advocated, if not accepted already, that judicial review serves a plurality of beneficial functions that operate for the benefit of society as a whole. There has been empirical research in the UK on the impact of judicial review on local authorities. The research suggests that judicial review can form an important resource for authorities, "enabling change in response to judgments that are rooted in grievances arising from peoples' experience of services and giving expression to claims that might otherwise be neglected as being politically unpopular". Judicial review has been seen to be a catalyst for continuing improvement of public services, benefiting all who are affected by administrative action. A good example cited is the developing duty of consultation.
In Hong Kong we do not have research of this kind, but we should, if the public is to understand the role of judicial review.
The author is a barrister and chairman of the Hong Kong Bar's Special Committee on Planning and Policy.
(HK Edition 02/06/2013 page1)