Why a focus on proper procedure is essential to Hong Kong’s rule of law

The citizen’s right of access to the courts to challenge decisions of public authorities by judicial review is an essential feature of our legal system based on the common law. Judicial review by an independent judiciary is fundamental to the rule of law and enables our rights and freedoms to be fully protected. It is rightly regarded as a distinctive feature of our system under “one country, two systems”.

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A judicial review challenge cannot be made on political grounds. It must be made on legal grounds. These would include that the challenged decision was inconsistent with statute or the Basic Law, that there had been procedural impropriety in making it, and that it was irrational in the sense that it was beyond the range of decisions open to a reasonable decision-maker.

Consistent with developments in other common law jurisdictions, judicial review cases have increased in the last two decades. The challenges are often funded by legal aid. It is not an exaggeration to say that the growth of judicial review has redefined our legal landscape. This has been due to various factors, including the increase in the volume of legislation for the governance of a complex modern society, the enactment of the Bill of Rights and the Basic Law and citizens’ greater awareness of their rights.

Time and time again, I have tried to explain to the community the nature and limits of judicial review. Judicial review cannot provide a solution to the complex political, economic and social problems which confront our society. The role of the courts is only to determine the limits of legality in accordance with legal principles. Within those limits, the answers to those difficult problems must be found through debate and compromise in the political arena. Citizens must look to the political process for their resolution. The responsibility for the proper and effective functioning of the political process of course rests with the executive authorities and the Legislative Council.

With the growth of judicial review, there has been concern that there have been cases where this process has been abused. In these cases, attempts were made to mount a judicial review challenge on political and not legal grounds. In a recent robust and colourful speech, which is characteristic of this senior legal figure, Henry Litton also expressed such concern.

I too am concerned about this phenomenon. I do not, however, think that attributing improper motives to the unsuccessful applicants in such cases would contribute to a constructive debate on this matter. The common view, which I share, is that this is mainly a reflection of the unsatisfactory functioning of the political process. This is, of course, entirely outside the judiciary’s responsibility.

However, it must be emphasised that the courts have effective ways to stop any attempt to abuse judicial review. Unlike ordinary civil proceedings, an applicant must seek the permission of the court to commence judicial review proceedings. Where such permission is refused, they cannot even begin.

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Further, an application must be made promptly and in any event within three months from the time when the grounds first arose unless the court considers that there is good reason for extending time. Moreover, the court may make an appropriate costs order.