Enhancing the Judicial Review Mechanism
In most common law jurisdictions, judicial review is a process whereby executive actions are subject to review by the judiciary. It is a core element of the principles of separation of powers and rule of law. The legislative branch makes laws for the state, which are then enforced by the executive branch. The power of the executive branch to enact laws is, however, restricted by laws. The judicial branch thus plays an important role in supervising the executive by interpreting laws and determining the boundaries of executive powers. This provides for a system of checks and balances, which allows one branch to limit another and prevent abuse of power.
In Hong Kong, Judicial Review proceedings cover two different aspects, namely, (1) Constitutional Review of domestic legislation as to their compatibility with the Basic Law; and (2) Administrative Review of executive decisions by the Government.
It should be noted that as the United Kingdom does not have a codified constitution and is governed within a parliamentary democracy framework, UK courts do not have the power to evaluate the constitutionality of the laws passed by its parliament (the so-called parliamentary supremacy”), whereas in some other common law jurisdictions, such as the United States, constitutional review is exercised by the judiciary. It therefore follows that UK judges have relatively less power in reviewing executive and legislative decisions than their Hong Kong counterparts.
Controversy on Judicial Review
From 2011 to 2016, the number of applications for leave for judicial review in Hong Kong has more than doubled from 103 to 228. Some argue that judicial review is being abused for political purposes against the HKSAR Government. Meanwhile, the number of leave granted remains steady over the years, amounting to less than half of the total number of applications. The success rate of leave applications has even seen a drop from 25% in 2005 to 7% in 2016. Among applicants who were granted leaves, only less than 30% won the cases. Overall speaking, only 10% of judicial review applications (including those which failed at the leave application stage) successfully challenged the lawfulness of executive decisions.
In June 2017, Mr. Kwok cheuk-kin, nick-named “King of Judicial Review”, has been barred from applying for legal aid for three years. The Legal Aid Department made the decision in accordance with Legal Aid Regulations, citing the reason that Mr. Kwok had made 21 unsuccessful legal aid applications and such act amounted to an “abuse” of the legal aid system. Although this research report does not discuss Hong Kong’s legal aid system, it is worth mentioning that many judicial review applications are supported by legal aid (84 cases in the past 5 years, costing the government over $25 million a year on average).
Former High Court Judge Henry Litton criticised social movement protagonists for abusing the system with political purposes, citing examples such as the Hong Kong-Zhuhai-Macau Bridge Judicial Review case. According to some estimated figures, the delay caused by this case resulted in an extra cost of HK$6.5 billion. On the other hand, former Chief Justice Andrew Li has a different view from Litton’s. Li believes Hong Kong’s judicial review system (with the requirement for leave application) is sophisticated enough from being abused.
It is not our intention to examine whether there is an abuse of the judicial review system; instead, we will make recommendations as to how the current system can be enhanced.
The need for institutional reforms
In 2009, Civil Justice Reform was implemented in Hong Kong with a view to increasing cost-effectiveness of civil proceedings and ensuring that a case is dealt with as expeditiously as is reasonably practicable. Despite the reform, the average waiting time for civil cases to be handled has actually risen since 2009. It is obvious that the Government should provide more resources to the judiciary to increase efficiency.
We put forward the following recommendations on institutional changes to enhance Hong Kong’s judicial review system through the improvement of judicial review procedures, as well as the provision of more resources.
1. Dedicated Judicial Review Courts
The Government may refer to the practice of the UK courts to set up a specialist court for judicial review cases, in which specialised judges are appointed to handle all judicial review applications.
A specialist court has the advantage of boosting efficiency and accuracy in handling Judicial Review cases, as judges in the court shall have expert knowledge and experience in a specific field of law. It may also increase the predictability of court decisions since cases of similar nature are likely presided by the same pool of judges. Additionally, in the longer run a specialist court enjoys greater flexibility as it may adopt a unique set of court procedures that suits its needs.
The concept of dedicated or specialist court is not novel. At present, there are a number of specialist courts or tribunals in Hong Kong handling specific types of cases, including the Competition Tribunal, the Lands Tribunal, the Coroner’s Court, the Labour Tribunal, the Small Claims Tribunal, and the Obscene Articles Tribunal. .
We suggest that a Judicial Review Court be set up within the High Court.
(a) The Judicial Review Court should handle all judicial review applications. It should be responsible for both approving leave applications at the first stage, and conducting hearings and giving judgments at the second stage.
(b) A High Court judge specialised in judicial review cases should be appointed as the President of the Judicial Review Court, who would be responsible for reviewing all judicial review applications and allocating cases to suitable specialised judges. He or she should also be the person in charge of handling expedited procedures applications.
(c) Other judges in the Judicial Review Court should be High Court judges experienced in judicial review cases, who may include specialised judges recruited from foreign jurisdictions.
(d) Making reference to the Planning Court in UK, the Judicial Review Court may, if deemed appropriate, further set up specialist courts like Constitutional Court and Planning Court to handle specific types of judicial review applications.
(e) On a rough estimate, the annual cost of a specialised Judicial Review Court would not be less than HK$10 million. A simple cost-benefit analysis will tell that it is worthy if judicial review judgements can be delivered early and the costs incurred by delay in development projects, which may amount to billions of dollars, can be reduced.
2. Expedited Procedures
A unique feature of judicial review is that applications are divided into two stages. Applicants must first obtain leave from the courts before they formally apply for judicial review. The objective is to avoid waste of judicial resources by screening out applications that are very unlikely to succeed.
Applicants must submit in written forms their grounds for applications when they apply for leave. There will be no oral hearing unless a hearing is requested by the applicant or if the judge directs otherwise. If leave is refused, applicants may appeal against the refusal within 14 days after the order of refusal is made.
We suggest that the Hong Kong courts adopt certain expedited procedures to shorten the overall time incurred for judicial review applications.
(a) The courts should consider making changes to the oral hearing practice in the leave stage. In the UK, courts do not conduct oral hearing in the leave application stage unless the judges find it necessary. Only after the court has refused to grant leave may an applicant require an oral hearing and reconsideration of the application. This practice can avoid unnecessary oral hearings in the leave stage, which slows down the application process.
(b) Courts can order “rolled-up” hearings to shorten the waiting time for urgent or important cases. The current procedures required by High Court Rules make it almost impossible for courts to conduct a combined oral hearing for the two stages of judicial review application. By refining procedural requirements, courts can consider granting of leave and, if leave is granted, immediately proceed to the full hearing on the same day. This helps to get a case dealt more quickly.
(c) Restrictions on “leapfrog” appeals should be relaxed to make it easier for an appeal to bypass the Court of Appeal and directly go to the Court of Final Appeal. This can help to speed up litigation and save costs. Leapfrogging may even be regularised and be granted whenever agreed by both parties.
(d) The courts can create an expedited cases list for special or urgent judicial review cases. Prioritisation of cases is currently only up to courts’ discretion. A judge-controlled expedited cases list, open to judicial review applications that deserve expedition, can regularize prioritisation and ensure prompt solution to important judicial review cases.
It may take some to implement the above proposals as they involve amending the Rules and Practice Directions of the High Court as well as the Hong Kong Court of Final Appeal Ordinance.
3. Specialised Judicial Review Judges
Hong Kong courts are currently facing a shortage of experienced judicial review judges to handle the increasing number of judicial review applications. To alleviate this problem, the Government should consider recruiting specialist Judicial Review judges from other common law jurisdictions. Under Article 92 of the Basic Law, recruitment of foreign judges are permitted.
4. Increasing overall judicial manpower and resources
Lastly, it is recommended that the Government should address the overall problem of judge shortage by, for instance, extending retirement age, employing more local and foreign judges, as well as improving welfare and support to judges. Computerisation should also be adopted in courts to increase efficiency and accuracy. In the long term, the Government may make reference to the Judicial Review Reform in the UK in 2015, which was more drastic, to consider applying suitable measures in Hong Kong courts.
Some scholars argue that in recent years the Hong Kong Government has fallen into the “Tacitus Trap”, which means some people are not pleased with any public policies because they resent the Government. This may be one of the reasons why the number of judicial review cases challenging government decisions has risen lately. As pointed out by both former Chief Justice Andrew Li and incumbent Chief Justice Geoffrey Ma, the court is the forum for resolving legal issues but not political ones. In the longer run, it is crucial that the Government should rebuild trust through improving governance.