Abuse of ju­di­cial re­views and soft ap­proach to se­cu­rity is­sues come un­der spot­light

China Daily (Hong Kong) - - 20TH ANNIVERSARY OF HKSAR - By LUIS LIU in Hong Kong luis­liu@chi­nadai­lyhk.com

Aca­demics, lawyers and judges ar­gue that de­spite the suc­cesses of the spe­cial ad­min­is­tra­tive re­gion’s le­gal sys­tem some as­pects still re­quire at­ten­tion.

T hese e xper ts say their most press­ing con­cern with the le­gal sys­tem is the abuse of ju­di­cial re­views (JRs) that has ob­structed the city’s de­vel­op­ment.

The­o­ret­i­cally, th­ese ar­range­ments were es­tab­lished for in­di­vid­u­als or in­sti­tu­tions to chal­lenge the de­ci­sions of pub­lic au­thor­i­ties. The re­views were seen as im­por­tant “checks and bal­ances” un­der the city’s con­sti­tu­tional sys­tem.

Le­gal aid is also granted to peo­ple who can­not af­ford proper le­gal coun­sel in such cases.

How­ever, some re­cent JR cases baf­fled the pub­lic. One of the most fa­mous con­cerned the Hong Kong-Zhuhai-Ma­cau Bridge — which had been de­layed a num­ber of times. A Tung Chung res­i­dent sought a JR against the en­vi­ron­men­tal im­pact as­sess­ment in the early stages of the pro­ject. As a re­sult, it was de­layed two years in­cur­ring ad­di­tional costs of HK$8.8 bil­lion.

In­deed, most JR cases on pub­lic con­struc­tion projects lead to sus­pen­sion of works un­til the court can hand down its rul­ing.

Con­tentious JRs

There have been other re­cent ex­am­ples of con­tro­ver­sial JRs. In 2013, Tele­vi­sion Broad­casts lodged a JR against the gov­ern­ment’s de­ci­sion to grant new free-to-air tele­vi­sion li­censes. The High Court re­jected the ap­pli­ca­tion as it con­sid­ered the de­ci­sion to grant new li­censes did not hurt any­body’s in­ter­ests — ex­cept the pri­vate in­ter­ests of TVB.

Other ex­am­ples in­clude a stu­dent ac­tivist’s at­tempt to chal­lenge the na­tion’s top leg­is­la­ture’s de­ci­sion on elec­toral re­form in Hong Kong. It is gen­er­ally un­der­stood the ju­di­ciary should not in­ter­vene in po­lit­i­cal mat­ters — and cer­tainly not at na­tional level.

Le­gal heavy­weights are also con­cerned about the prob­lem. In a speech at Hong Kong’s For­eign Cor­re­spon­dents’ Club in 2015, for­mer Hong Kong Bar As­so­ci­a­tion chair­man and re­tired Court of Fi­nal Ap­peal j u d g e He n r y L i tt o n c o n - demned the “abuse” of the JR sys­tem in re­cent years.

He warned ap­pli­cants that JRs are not sup­posed to chal­lenge gov­ern­ment pol­icy or be abused. “The court is not a

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