Former Chief Justice Andrew Li Kwok-nang said judicial reviews are the cornerstones of sound governance.
Li’s comments were apparently in response to former Court of Final Appeal Judge Henry Litton, who said during a public event earlier this month that he felt judicial reviews were being abused in Hong Kong.
Li, in an article published by Ming Pao Daily on Monday, said there are mechanisms in place to prevent the abuse of judicial reviews, adding that the process should not be seen as a “nuisance” to the government.
Civic Party founder and chairwoman Audrey Eu Yuet-mee, who is a senior counsel, said Litton’s comments have aroused discontent from some judges, but Li’s response has addressed their concerns.
In fact, Li had on several occasions when he was the chief justice from 2006 to 2008, and in 2010, defended the role of judicial reviews and explained its nature and limitations.
Li said it is understandable that members of the public, including Litton, might be concerned with the notion that judicial reviews could be overused.
However, Li argued that since 2008, the requirements to trigger a judicial review had been raised with the Court of Final Appeal only accepting a case if it was deemed to be reasonably arguable.
All applications failing to fulfill the requirements would be rejected in the interest of the public.
Li went on to say that all the cases the Court of Final Appeal had accepted did not constitute any abuse of judicial review, regardless of the final outcomes.
In addition, a judicial review must be raised within the required time frame and the court could demand court costs it deemed appropriate.
Li added that it is inevitable that justice and convenience were “sometimes not on speaking terms”, apparently referring to Litton’s examples of notable judicial review cases involving the free television broadcast licenses in Hong Kong and the Hong Kong-Zhuhai-Macau Bridge project.
The judicial reviews might have caused delays and increased costs, but those things are unavoidable in maintaining the rule of law, he said.
Li also cited an article written by former Secretary for Justice Wong Yan-lung in 2008, which upheld judicial reviews as the foundation of good governance.
Litton’s comments were in reference to Yvonne Leung Lai-kwok, a law student and head of the Hong Kong University Students Union in 2014 who had sought a judicial review of the government’s proposal for political reform and the process for the 2017 chief executive election.
Li said he doesn’t not think that “attributing improper motives to the unsuccessful applicants in such cases would contribute to a constructive debate on this matter”.
Leung said Li’s comments were fair and she saw no need to respond further.
Li said judicial reviews cannot resolve complex political, economic and social issues, which should rather be dealt with through discussions and compromises.
Solutions to these problems should be worked out by the legislative and administrative bodies, but they are not the responsibility of the judiciary, he said.
Pro-government legislator Priscilla Leung Mei-fun, an associate professor of law at the City University of Hong Kong, did not comment on Li’s article.
However, she said if judicial reviews were easily sought, they could be used whenever someone is dissatisfied by a political decision in order to delay the decision and arouse public interest.
When that happens, people and the government could become numb to judicial reviews over the long run.
Winnie Tam Wan-chi, chairperson of the Hong Kong Bar Association, said she strongly agreed with Li’s take on judicial reviews as justice must be served under all circumstances.
University of Hong Kong law professor Johannes Chan Man-mun said he also supported Li’s views, adding that the existing mechanism of requiring a court clearance before a judicial review could be started was designed to avoid its abuse.
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