Benny Tai on Why Judicial Reviews are a Key Aspect of the Rule of Law (HKEJ)

"Judicial reviews are key aspect of rule of law"
Benny Tai
Hong Kong Economic Journal
16 January 2016

Former and incumbent chief justices of the Court of Final Appeal have acknowledged that judicial reviews are the key to good governance, and the chairperson of the Bar Association has also asserted that there is no sign whatsoever our judicial review system has been abused.

     Despite this, Chief Executive Leung Chun-ying has stubbornly insisted that many judicial reviews filed by members of the public in the past were politically motivated and that they were aimed at sabotaging key government-backed infrastructure projects.

     What worries me here most is not Leung’s hardline stance on judicial reviews as a whole, but his twisted understanding of the rule of law and his complete disdain for the right of the public to exercise oversight powers on government actions through proper and rightful judicial procedures.

     To make things worse, Leung’s opinion on judicial reviews is also out of sync with the view of the majority of the people of Hong Kong. According to the findings of a large-scale survey conducted by my research team last year, our citizens have over the past decade moved dramatically toward acceptance of judicial reviews.

     The percentage of people who were in favor of judicial reviews rose to 67.3 percent last year from 30.3 percent in 2006.

     There are a few reasons that can explain the significant rise in public support for judicial review:

1. The existing mechanism and channels of the government and the legislature to handle public complaints have proved inadequate for addressing the rising public grievances and social conflicts in recent years. Hence, the public has no choice but to turn to the court for help by means of judicial review. 

2. Extensive media coverage of a number of high-profile judicial review cases has raised public awareness about the nature and positive impact of the legal route for the defense of civil rights. 

3. The impartiality of the court in handling the cases has enhanced public recognition of judicial reviews as a rightful way to blow the whistle on unjust government measures or decisions. 

4. Under most circumstances the government departments which lose cases would act in line with court rulings and re-examine or even revoke their policies in question, indicating that judicial review is an effective means through which the public can monitor and oversee government actions.

 Our survey also shows that the more educated people are, the more in favour they are of judicial reviews.