16 February 2019
The public interest is always involved in judicial reviews, says Geoffrey Ma. Photo: HK govt
The public interest is always involved in judicial reviews, says Geoffrey Ma. Photo: HK govt

Chief justice defends judicial review in Hong Kong

Judicial reviews serve the public interest and promote the well-being of society, Hong Kong’s top judge said.

Their function should properly be recognized despite the fact that they sometimes give rise to inconvenience, Geoffrey Ma Tao-li, chief justice of the Court of Final Appeal, said Monday in a speech at the ceremonial opening of the Legal Year 2016.

Ma said the public interest is always involved in judicial reviews, and a decision of the court in this type of case will almost always affect sections of the public and sometimes the whole community, Apple Daily reported Tuesday.

Such a decision of the court will often serve as a guide to good governance, he said.

Ma’s defense of judicial review came after a former judge of the top court criticized the misuse of the system, saying people have been filing frivolous applications for judicial review against decisions taken by the government and public organizations.

Warning against abuse of the legal remedy, Henry Litton, who retired from the Court of Final Appeal in July, cited in a talk last month a petition lodged by Yvonne Leung Lai-kwok, a law student and head of the Hong Kong University Students Union in 2014, as an example of avoidable litigation.

Leung had sought a judicial review of the government’s proposal for political reform and the process for the election for the city’s chief executive in 2017.

A similar criticism had also been made by Andrew Fung Wai-kwong, information coordinator in the Office of the Chief Executive.

Ma said judicial reviews most often involve the government or a department within it and so it is inevitable that political, economic and social factors form a part of the background to such cases.

But he stressed that the court is only involved in the legal questions that arise and it is usually simply irrelevant to inquire into the motives, political or otherwise, of the parties before the court. 

What matters are the legal merits of the case, he said.

He reminded reporters after the ceremony that applications for judicial review must be approved by the court.

Ma said a high threshold has been established for approval, and any comments regarding the process being abused are purely political and not concerned with the law.

He also reiterated that the law applies equally to every person and that no person or institution, including the government, is above the law and the application of the law.

Echoing Ma, Winnie Tam Wan-chi, chairwoman of the Hong Kong Bar Association, said in a speech at the ceremony that Litton’s comments that judicial review was being abused are not true, because the mechanism in place to prevent that from happening has been effective and there is no evidence of abuse.

Only 25 percent of applications for legal aid in judicial review cases succeed, suggesting the system is far from being abused, she said.

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