People walk in front of the Court of Final Appeal in Central, which is the former Legislative Council building. Roy Liu / China Daily

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

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

These experts 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 judge Henry Litton condemned 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 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 reiterated.

He said JRs in the city wasted court resources.

Law professor Song Sio-chong agrees. "Overall, Hong Kong provides the easiest access of JR among common law jurisdictions," Song said, citing previous studies on the issue.

Song argues that the worst-case scenario is when there is no mechanism in place to stop such abuses.

He believed that the current situation had to some degree made the government hesitate when handling thorny issues.

Lawrence Ma Yan-kwok, a barrister and chairman of the China-Australia Legal Exchange Foundation, is also concerned.

He believes Hong Kong's judiciary should set up additional bodies to address the matter.

Firstly, the city's Legal Aid Department should form an independent panel of judges to assess the granting of legal aid, Ma proposed. He cited the city's Legal Aid Ordinance, where currently applications for aid are reviewed by a group of barristers and solicitors who could become the applicant's lawyer in the same case. This obviously could lead to conflicts of interests, he noted.

By reforming the system, the department could obtain neutral and authoritative decisions, Ma argued. But such changes require an amendment to the Legal Aid Ordinance.

Ma also urged the Hong Kong judiciary to learn from its counterparts in Australia. There, they prioritize urgent cases affecting the public interest - including JR cases.

He believed such changes would help prevent JRs from being used to serve political interests.

Stronger law enforcement

Meanwhile, legal experts are also worried about the way the police force is now treated in Hong Kong. Song said the force had lost the "strictness of law enforcement" and had instead become a "team of services".

This dilemma was evident during protests during the illegal 79-day "Occupy Central" movement in 2014, he noted. Radical protesters were seen assaulting front-line police officers - often without a strong response from the officers.

"Normal police tactics are to disperse an (illegal) assembly in other developed countries, including with the use of tear gas and high pressure guns. But in Hong Kong these are often seen as unacceptable police violence," Song noted. Police officers use very restrained tactics when dealing with protesters, he explained.

Song also condemned some opposition activists for criticizing the police for not respecting international standards.

"Hong Kong's standards are actually much higher than the international ones," Song said. He hoped police would enforce laws strictly to uphold the rule of law.

Article 23

The absence of a national security law on Hong Kong's statute books has also generated considerable controversy.

According to Article 23 of the Basic Law, Hong Kong has a constitutional responsibility to enact laws to prohibit any act of treason, secession, sedition or subversion against the Central People's Government and to stop national security threats arising from foreign forces.

However, after a failed attempt in 2003, the government shelved the national security legislation.

Chairman of the Basic Law Institute, Senior Counsel Alan Hoo Hong-ching, said recent calls for "Hong Kong independence" had demonstrated the importance of such a law - particularly in an international city in China.

He said a national security law was a "standard setting" in most other countries. "Hong Kong is a city of China, not of the universe. It should not be an exception," Hoo said.

The "one country, two systems" principle should not be an excuse for not having a national security law, Hoo argued.

He also cited the example of Canada. "Quebec uses a civil law system, which is totally different from the common law system used elsewhere in the country. However, they use a unified national security law," Hoo added.

Zou Pingxue, director of Shenzhen University's Center for the Basic Law of Hong Kong and Macao, said he appreciated that some people had concerns about legislating such a law. Therefore, he advised the government to divide it into a few sub-laws. It could then complete legislation "in batches", with phase one, two, three, etc, explained Zou.

He hoped a shift from "wholesaling to retailing" the legislation would help the process of passing it go more smoothly.

luisliu@chinadailyhk.com

(HK Edition 07/01/2017 page7)