FAIR’S FAIR? THE CONCEPT AND APPLICATION OF JUDICIAL REVIEW
What is Judicial Review?
Hong Kong citizens are subject to a plethora of administrative decisions and constitutional constraints in their daily lives. But what recourse exists for someone who feels that he or she has been subjected to unfair treatment or judgement?
Various independent organisations exist to enable citizens to challenge maladministration and inappropriate decisions made by government authorities. These include the Equal Opportunities Commission (EOC), The Office of the Ombudsman and the Independent Police Complaints Council (IPCC).
Investigations from the likes of the EOC, IPCC and the Office of the Ombudsman are not legally binding on the government authority concerned, but those bodies may also opt to take legal action on behalf of the aggrieved member of the public.
One form of legal action that can apply in such a situation is Judicial Review (JR) – a course of action that is also open to individual citizens.
Judicial Review is a formal mechanism for challenging both administrative actions or judgements (acts by the Judiciary or other public authorities) and wider constitutional issues.
When does Judicial Review apply?
JR proceedings often make the news when they concern large social and economic issues such as the right of abode, the Link REIT and the construction of the Hong Kong-Zhuhai- Macau Bridge.
But JR is equally applicable to everyday situations faced by individuals. Examples can include:
- Reviewing the decisions of government bodies and disciplinary proceedings (against civil servants and professionals) such as the Town Planning Board and the Medical Council of Hong Kong
- Challenging the decisions of appeal tribunals which have reviewed the decisions of public bodies in areas such as noise control, housing, buildings regulations or registration of persons
- Querying the refusal of a public body to grant subsidy or legal representation to individuals
How does one apply for Judicial Review?
The application must be made to the Court of First Instance (CFI). The process has two stages:
- Permission must be sought from the CFI to apply for JR. The merits of the case are subject to what is known as the ‘Arguability Test’. This comes from a previous case in which the Court of Final Appeal[1] considered what makes a case legitimately subject to Judicial Review.
- Secondly, if permission to pursue JR is granted, the complainant needs to file a so-called ‘originating summons’ – a court document to start legal action – to arrange for a date for the formal court hearing.
The notion of ‘fairness’
There are several grounds for the granting of JR. Procedural impropriety is that which relates most commonly to inappropriate action – or inaction – by public authorities.
In deciding on such a case, the court will carefully consider the legal notion of fairness – the Hong Kong courts have made clear that they are the only and final arbiters on the fairness of a public function as it affects a complainant. Taking its lead from a landmark UK case[2], the court views a complaint of this type to rest on the presumption that any administrative power conferred by law will be exercised in a fair manner. It also recognises that standards of fairness may change over time, and that fairness is dependent upon the context of a particular case.
The court will usually require that a person who may be adversely affected by a decision has the chance to make representations on his/her own behalf, either before or after the initial decision is taken, with appropriate contextual information to be provided by the authority concerned. This ‘right to be heard’ is a fundamental tenet of our legal system, inherited from common law and enshrined in the Basic Law of the Hong Kong SAR.
Any individual who believes he/she may have valid grounds for securing a Judicial Review should consult a solicitor.
For further information, please contact
Martin Waldron
Partner
Hampton, Winter and Glynn
Tel: (852) 2847 2468
Email: mwaldron@hwg-law.com