Loading justice’s dice

December 06, 2021 10:43
Photo: Hong Kong Judiciary

Politicians of all stripes hate being criticised, which is curious when you realise that no-one can be right all the time. Assuming public office does not render one inviolate in autocracies.

I realise that already I must apologise to Hong Kong’s ruling clique who are, by definition, infallible.

But the rest of us are human and, as such, prone to error, which brings me back to the hypersensitivity of administrations of all colours when their decisions are challenged. Both the United Kingdom and Hong Kong governments are intent on gerrymandering recourse to justice.

Giving a group of people power over their fellow citizens automatically creates an imbalance.

On the one hand there are the empowered and on the other the subordinated.

Which is all very well and good provided that the power is exercised fairly and impartially. This utopia simply does not exist, anywhere.

Autocracies enjoy a hold on power that cannot be challenged, which means that they command obedience to their rule. In terms of the process of governing, this asymmetrical construct is the most effective form of achieving universal compliance.

If one is fortunate enough to live under a benign dictatorship, that may well result in the best form of government. Sadly, these are as a rare as the lesser crested Fockarwee bird.

Democratic regimes, in their multifarious iterations, make a greater or lesser fist of listening and responding to their respective constituencies. Still, the old adage about power tending to corrupt still holds good.

Whether it is the dictator sitting on his throne, the lesser functionary donning his or her uniform or the ‘elected’ leader assuming office, the adrenalin of power courses through their veins, leading to an inevitable measure of delusion.

Out of the delusion of omnipotence and infallibility come the injustices that are visited upon the governed.

The beauty of a society that answers to the rule of law is the independent judicial machinery that entitles an individual victim of the abuse of power to challenge the over-reach of government.

In most common law jurisdictions, including Hong Kong, that machinery is judicial review.

But to satisfy the court that there has been an injustice requires overcoming a set of hurdles on which the bar is set high: the applicant must prove that there has been a breach of natural justice or that the decision is one that no-one in their right mind would have made.

Illustrations of breaches of natural justice are procedural irregularity or where something that ought to have been taken into consideration has been ignored or, conversely, where something that ought not to have been taken into account has been allowed to influence the decision.

Judicial Review involves a two-step judicial process, first to convince a judge to grant leave to mount the challenge the applicant must demonstrate that there is a serious issue to be considered and that prima facie there are arguable grounds.

Only if leave is granted will the matter go forward for judicial determination within the narrow boundaries that are permitted.

If you only listen to make-weight political functionaries grumbling about their flawed decisions being held up to the light of day or the left of field legal luminary whose wattage has dimmed, you might be left with the false impression that the court system is choked with judicial reviews.

The reality is that, almost by definition, far and away the majority of people applying for judicial review are ordinary folk who do not have the finances to mount such a complex legal challenge, this is where the incalculable importance of Legal Aid comes into play.

Long before an applicant can articulate their case to a judge, the merits of such a step have to be assessed by Legal Aid counsel. Only if it is judged to have a reasonable prospect of success will Legal Aid be granted and, of course, it is still subject to a means test too.

So, for the mouse even to get the opportunity to roar, it has to circumnavigate a series of critical tests before it can go toe to toe with an administration that has no such financial constraints and has access to an entire cart load of lawyers in government service as well as being able to instruct specialist counsel at the private Bar.

As with so much else in this day and age, to the benefit of the community, the professions have become increasingly specialised. By analogy, if you have a spinal problem, you will need a specialist spinal surgeon not just an orthopaedic surgeon.

So, with Judicial Review, not only the applicant but the Judge needs to rely on a specialist in the field.

There are specialist counsel and solicitors in what is categorised as Administrative Law and, not unnaturally, they are the lawyers instructed in these cases.

Just as in medicine, each area of legal speciality in Hong Kong is served by a relatively small number of practitioners. It is in the public’s best interests that these speciality Bars exist, it is a reflection of the degree of sophistication of the Hong Kong legal system.

Regrettably, the notion seems to have gained currency in certain quarters that Legal Aid is a cake to be shared out equally, regardless of the competence and experience necessary for the task in hand.

Not only does this exhibit crass ignorance but since the notion emanates from government it also appears to reflect the desire of those whose decisions are open to challenge to prevent an equality of arms.

I am put in mind of the way that the Roman Emperors rigged the fights in the Circus Maximus, sending in an ill-equipped novice in a loin cloth against a fully armed and armoured gladiator.

Governments always have the upper hand in these circumstances: they are not financially constrained, enjoy a large body of administrative support and can instruct legal counsel, both in-house, from the private sector and from overseas.

In such circumstances, it ill behoves a just society to artificially restrict the number of specialist counsel available to the public by limiting the number of cases that a barrister may undertake.

To the best of my knowledge there has never been an allegation of impropriety levelled against a barrister representing an applicant for Judicial Review in Hong Kong, so why should the administration be in such an intemperate hurry to stamp out a non-existent malpractice?

In the UK a sleazy populist administration headed by a mendacious opportunist still smarting from being brought to heel by the Supreme Court wants to limit judicial capacity to curb its excesses.

Some may be tempted to ascribe an ulterior motive to such moves but whereas you might very well think that, I could not possibly comment.

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Queen's Counsel