Head of the Bar Association sides with former chief justice Andrew Li in defending right of the public to challenge government
GARY.CHEUNG@SCMP.COM
PUBLISHED : Monday, 14 December, 2015, 7:02pm
UPDATED : Monday, 14 December, 2015, 7:02pm
Winnie Tam, chairwoman of the Hong Kong Bar Association. Photo: DicksonLee
Judicial reviews should be viewed positively as they allow members of the public who want to take the government to court to place their trust in the independence of the judicial system, the head of the Bar Association says.
Winnie Tam Wan-chi told the South China Morning Post that if a judicial case failed after a full hearing in court, it did not mean that the applicant had abused the system.
She was weighing in on a between former chief justice Andrew Li Kwok-nang and a retired Court of Final Appeal judge, Henry Litton, on whether the judicial review process had been abused.
“What is positive about it is that the public must be taken as reposing their trust in the independence and effectiveness of the judicial system for them to want to take the administration to the court,” Tam said.
She noted there were additional hurdles to be crossed in order to obtain leave to proceed to full hearing – the application had to be made within three months of the decision being challenged, and the applicant must show he or she had sufficient interest.
“The fact that some hearings of application for leave in a case may be complex does not mean that every judicial review process was long or time-consuming,” she said.
“The pursuit of efficiency must not be at the expense of doing justice, not at the expense of showing to the public that justice is done. Justice must be seen to be done.”
Ex-lawmaker Ronny Tong Ka-wah, a former chairman of the Bar Association, said judicial review was a legal process unique to the common law system and epitomised the separation of powers.
“A judge will not allow a judicial review to proceed unless he thinks there is a reasonable chance the application might succeed,” he said. “We should not be too ready to criticise people who come to the court for redress.
“They do so because they believe in the law, and that is what the rule of law is all about.”
In an article for the Post yesterday, Li emphasised that judicial reviews were fundamental to the rule of law and the courts had an effective mechanism to stop any attempt to abuse the process.
READ MORE: Hong Kong’s legal system ‘misused’
Li, who presided over the judiciary from 1997 to 2010, urged that they not be viewed as a “nuisance”.
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 for a judicial review to challenge the government’s political reform package “simply grandstanding that should be roundly condemned”.
http://m.scmp.com/news/hong-kong/law-crime/article/1891155/judicial-reviews-allow-hongkongers-place-their-trust
