Former top judge says facilitation of judicial reviews harms the community, rule of law
GARY CHEUNGgary.cheung@scmp.com
PUBLISHED : Thursday, 17 December, 2015, 4:39am
UPDATED : Thursday, 17 December, 2015, 4:39am
Retired Court of Final Appeal judge, Henry Litton. Photo:
A retired Court of Final Appeal judge who recently sparked a debate about the "abuse" of judicial reviews has gone a step further to declare that Hong Kong's courts are accomplices to such abuses by effectively facilitating them.
Henry Litton, who retired as a non-permanent judge of the city's top court in July, said this had brought harm to the entire community and undermined the rule of law.
Litton told the Post that this was "a disaster for the community in the making as 2047 closes in", referring to the date when Beijing's guarantees on Hong Kong's autonomy under "one country, two systems" end.
He said the High Court should bar parties from using the courts as platforms for venting their views when they were irrelevant to the remedies they sought.
He was responding to former chief justice Andrew Li Kwok-nang's article in the Post on Monday defending judicial reviews as fundamental to the rule of law and pointing out that the courts had an effective mechanism to stop any bid to abuse the process.
They should not be seen as a "nuisance" to the government, Li wrote.
READ MORE: Judicial reviews fundamental to rule of law in Hong Kong, says former top judge Andrew Li
His remarks came two weeks after Litton hit out at what he described as the abuse of judicial reviews, singling out a former head of the University of Hong Kong's student union, Yvonne Leung Lai-kwok.
Litton called her failed application to challenge the government's political reform package "simply grandstanding".
Li declined to comment on Litton's response to his article.
"But I wish to state that it's important for any commentator to be fair and not to exaggerate and blow out of proportion any concerns about our judicial system," Li said.
Litton was the most senior Court of Final Appeal judge after the chief justice during his tenure as a permanent judge of the city's top court from 1997 to 2000.
"If the court gives scope to such abuse [of judicial reviews], as has happened frequently in recent times, it becomes, in effect, an accomplice in such abuse," Litton told the Post. "This debases the whole process and brings harm to the entire community.
"I am not saying that these applications are simply a 'nuisance to government'. I say that they damage the rule of law," Litton asserted. "Without the discipline of law, there is no rule of law. The process of law becomes a charade."
He spoke of a pernicious tendency engrained in the practice of law in Hong Kong.
READ MORE: Hong Kong’s legal system ‘misused’ and ‘drowning in irrelevance’, says former top judge
"Counsels, in many instances, felt justified in throwing at the court every conceivable argument, without exercising judgment as to whether the points are relevant to the issues, nor whether they are reasonably arguable.
"Say an applicant puts forward six grounds. The likelihood is that counsel on the other side will respond to them in kind, advancing arguments to deal with those grounds, however absurd. The court in turn follows suit.
"The courtroom is turned into a debating hall, and the resulting judgment becomes replete with philosophical ponderings, removed from the practical issues on the ground.
"It makes the common law a total mystery to the common people and to lawyers for that matter," Litton said.
He added: "My suggestion is simple: in such cases, the High Court should follow its own rules, deal with such applications summarily."
A senior legal figure, who asked not to be named, said Litton's criticism of the handling of judicial reviews by the courts was "vastly exaggerated".
"There may be some cases where the courts could have been more robust. This could not be said to be frequent," the senior legal figure said. "He gets a real bee in his bonnet about judicial reviews."
http://m.scmp.com/news/hong-kong/law-crime/article/1892247/hong-kong-courts-accomplices-abuse-judicial-reviews-says
