Retired judge puts the SAR's judicial reviews in the dock
Updated: 2015-12-09 09:12
By Song Sio-chong(HK Edition)
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During a lunch talk at the Foreign Correspondents' Club on Dec 2, former Court of Final Appeal judge Henry Litton criticized the gross abuse of judicial reviews in Hong Kong. He cited several cases to support his arguments.
In regard to the Hong Kong-Zhuhai-Macao Bridge judicial review, Litton pointed out that judicial review was not available for challenges to government policy. The litigant eventually lost the court case, but the project was delayed by almost two years. It also incurred extra costs of more than $1 billion due to the litigation process.
Litton even questioned how the SAR government could explain the whole issue to the central government. If I have understood this argument correctly, what he took issue with was how a multilateral agreement to build the bridge based on public policy considerations among Beijing, Hong Kong, Zhuhai and Macao could be reviewed by a local court without triggering substantial legal issues; how a political party in Hong Kong could play such a vital role in the case; and how the legal aid department could provide a lot of money to the litigant for such a purpose.
In regard to the judicial review against the government's electoral reform proposal, Litton's criticism was even stronger. This was particularly so in regard to the Chief Executive being implicated as the fourth putative defendant, and also on the motives of the applicant. In discussing the former, Litton used an analogy of a terror attack. He said, "If everyone in the government could be made a putative respondent, there would not need to be a terrorist attack to paralyze the work of the government." Comparing the situation with a terrorist attack showed the seriousness with which he viewed the action. He went on to say that it was as if the applicant, Yvonne Leung Lai-kwok, was hoping one day to put on her resume the fact that she had sued Hong Kong's Chief Executive and that she would be proud of this.
In regard to the injunction against the illegal "Occupy Central" movement, Litton argued that this was a civil process which was being evoked for what he felt was a public order issue. But he did not blame taxi drivers and bus operators for abusing the process because the issue of individual rights was involved. Instead, Litton questioned why the government did not take over the lawsuit to directly enforce the rights of the public. If public order issues could be tackled first then the injunction as a remedy for a tort - or a civil wrong - would be settled automatically. There is clearly something wrong here and it should be reviewed by the government.
At the beginning of his discussions, Litton said the audience should not just assume that the common law system is perfect and will automatically continue after 2047. On the contrary, he said the common law system appeared to be slow, costly and obscure. Therefore, the question should be asked: How can such a system be used in a global financial center like Hong Kong? To resolve the problems of the common law system in the HKSAR, he said any judgment should be written in simple, clear English, so it can be accurately translated into Chinese. The court should refrain from exercising unnecessary jurisdiction. The courts should also reject undue applications for judicial review without legal merit or standing.
Courts higher than the Court of First Instance of the High Court, which include the Court of Final Appeal, have the final adjudication on judicial reviews. They should pay particular attention to the power and limitations of such interpretations as provided in Article 158 of the Basic Law. By virtue of this, provisions of the Basic Law have been classified into three categories. This classification is useful in determining whether to seek an interpretation from the Standing Committee of the National People's Congress. But the final interpretation still rests on the Standing Committee - without exception. In dealing with local legislation and public policies, the court (which has power of final adjudication but without the power of final interpretation of the Basic Law) should be prudent when deciding whether things are constitutional or not.
(HK Edition 12/09/2015 page11)