Remarks on judicial review at opening of new legal year come in wake of stinging criticism by former top judge Henry Litton
EDDIE LEE AND CHRIS LAU
PUBLISHED : Monday, 11 January, 2016, 6:24pm
UPDATED : Monday, 11 January, 2016, 6:24pm
Chief Justice Geoffrey Ma says judicial reviews are all about legality and not about the merits or demerits of a political, economic or social argument. Photo: Sam Tsang
Judicial review overall serves the public interest and facilitates the well-being of our society despite causing occasional inconveniences, said the city’s chief justice.
“It is precisely because of the public interest being engaged in this way that in dealing with judicial review cases, the court will be anxious to ensure that all proper legal arguments are permitted to be ventilated before a decision is made,” said Geoffrey Ma Tao-li at the opening of the new legal year.
Ma’s remarks came after retired Court of Final Appeal judge Henry Litton questioned whether judicial reviews had been misused in recent years.
READ MORE: Hong Kong’s legal system ‘misused’ and ‘drowning in irrelevance’, says former top judge
Despite the fact that judicial review might involve political, economic and social factors, the court was only involved in the legal questions which arose, Ma said.
“It is usually simply irrelevant to inquire into the motives, political or otherwise, of the parties before the court,” he said. “What matters are the legal merits.”
“Judicial reviews are all about legality and not the merits or demerits of a political, economic or social argument,” Ma reiterated.
Litton previously said judicial review was not a challenge to government policy and should only concern law.
“It’s not a debating hall or a classroom. It’s only when the public authority has acted unlawfully or gone outside its lawful powers or abuses its powers given by a statute that a court can intervene,” he said earlier.
Litton cited a failed legal challenge to the government over its political reform package earlier this year by University of Hong Kong student union leader Yvonne Leung Lai-kwok as an example.
He also slammed some of the judges’ judgments for being “so obscure” that no one could understand.
Also commenting on judicial review, chairwoman of the Bar Association Winnie Tam Wan-chi SC said she disagreed with Litton as the court’s stringent vetting of whether to grant leave prevented the court from being abused.
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“I would argue the mechanism in guarding against abuse has performed its intended function, with no evidence of significant, not to mention widespread, abuse”, she said.
She cited that, although there was a 56 per cent increase in judicial review applications in 2015 compared with the previous year, they covered a wide spectrum of topics, most of which had no implications for the wider public.
She also said the there was no evidence the judiciary had not been able to cope with the case load.
She quoted former chief justice Andrew Li as saying expedience must not be at the expense of fairness. “A well reasoned decision, particularly in refusing leave in highly charged cases, is often what it takes to let justice be seen to be done,” she added.
She said there had not been signs the Hong Kong Judiciary had been under pressure, though “constant vigilance is of paramount importance”.
It was the duty of the Hong Kong legal profession, she also said, to communicate and explain the core value of the rule of law to its mainland counterparts and authorities when necessary.
Chairman of the Law Society Stephen Hung Wan-shun, although not commenting directly, said it was important for the Judiciary to be independent so that it could act as an effective check against the abuse of power by the authorities and legislature.
http://m.scmp.com/news/hong-kong/law-crime/article/1899962/simply-irrelevant-inquire-motives-political-or-otherwise
