Monday, December 4, 2017

Henry Litton on Judicial Review and Good Governance (HKU & Citizen News)

"Judicial review helps or hinders good governance?"
Henry Litton (Honorary Professor)
Speech delivered at the HKU Faculty of Law on 20 November 2017 and text published in Citizen News on 27 November 2017.

The Judge Over Your Shoulder
A manual published by the Department of Justice entitled "The Judge Over Your Shoulder: A Guide to Judicial Review for Administrators" says this: "It would not be right to consider judicial review a hindrance to good government. On the contrary, when the legal process is used responsibly and appropriately, it is conducive to raising and maintaining standards of government action, improving governance and decision-making, and upholding the rule of law".
     The "legal process" referred to in the manual refers to a disciplined process. It is laid down by statue: s.21K of the High Court Ordinance and Order 53 of the Rules of the High Court. The Rules ensure that the process is clear-cut and speedy, so that both the administrator and the citizen know where they stand. In the recent past there have been many instances where the process has not been used responsibly and appropriately. Lawyers have become bolder in their extravagance as discipline in the courts declined. The failure of Judges to stand firm, impose discipline and apply strictly the law has grievously impaired the rule of law.

A Disciplined Process
Order 53 r.3 mandates an application for leave to be ex parte. This means that the Judge who receives the papers - Form 86 - has the responsibility of determining, on his own, whether the applicant's ground of application are arguable. The proposed respondent to the application is not to be viewed with any process unless the Judge considers the matter to be arguable, and gives leave for proceedings to begin.
     Judicial review is concerned with decisions and actions by public authorities which have substantial legal consequences. It is not a portal for courts to examine government processes generally or to engage in unfocussed discussion of government policies and actions, as if the court were a coffee shop... Click here to read the full text of the speech.  Henry Litton's Reflections on Judicial Independence speech delivered at the Foreign Correspondent's Club on 15 November 2017 can be viewed here.

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