Who has the final say? Judicial review in Hong Kong since 1997 -1-
Who has the final say? Judicial review in Hong Kong since 1997 -2-
Introduction Judicial review plays an important role in every jurisdiction that is committed to the rule of law 1 . Especially in a society like Hong Kong, where the appraisal of policies through the ballot-box is limited, judicial review constitutes an effective instrument to challenge policies in public, that is, in an open court house. Yet courts that rule over issues of public concern, quickly become a political matter themselves. The “politization” of courts can do harm to their reputation and will expose the proceedings to exertion of various powers such as media or political parties. Yet, the courts have to deal with every matter that is being brought before them in some way. Thus, should the courts in Hong Kong execute their supervisory power copiously and with dedication in order to fill the gap between the lack of universal suffrage and the need for a lived rule of law or should they stay out of politics and practice “judicial restraint”, as many suggest? This paper intends to clarify the role of judicial review in Hong Kong and developments in this regard since the handover in 1997. I will start with a brief explanation of the nature of judicial review - which kinds of decisions can be impugned and what has to be borne in mind when doing so. In the second part, I will review the latest “politically delicate” cases that have been brought before the courts in Hong Kong in recent years. On the basis of these cases I will outline the difficulties the courts faced when dealing with them and I will also give examples of the sometimes far-reaching reactions the decisions had for those affected by the judgments.
The nature of judicial review2 The Basic Law of the Hong Kong Special Administrative Region (HKSAR) states: “residents shall have the right to institute legal proceedings in the courts against the acts of the executive authorities and their personnel”.3 Applicants for judicial review seek superior jurisdiction over decisions or proceedings of inferior courts or other public bodies or persons, because of flaws in the process that lead to the decision which is impugned. This characteristic distinguishes judicial review from a regular appeal. Whereas an appeal serves to impugn a decision on various grounds – on the question of consideration of evidence for instance - judicial review is not concerned
1
Readers interested in how strong HK’s commitment to the rule of law actually is, please consider Richard Cullen’s latest paper “The Rule of Law in Hong Kong”, available on Civic Exchange’s homepage. (www.civic-exchange.org) 2 This chapter does not intend to give a comprehensive understanding of the term judicial review but rather a brief summary in order to understand or commemorate the basic principles of the term. For an extensive definition of the very complex term “judicial review” see Supperstone, Michael and Knapmann, Lynne (Gen. Eds.), Administrative Court Practice – Judicial review, London 2002 3 The Basic Law Of The Hong Kong Special Administrative Region Of The People’s Republic Of China, Article 35
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with reviewing the merits of decision but the decision making process itself.4 Secondly, only a decision exercising public law is amenable to judicial review.5 That means it has to be made by a “public body” within the realm of public law. “Bodies that derive their authority from an Ordinance are generally amenable to review in respect of some decisions made when acting in a public capacity”.6 This precondition is sometimes hard to achieve, because the distinction between private and public law can be tricky and there is no checklist that can be consulted. Many applications for leave fail because although the decision was made by a public body, it was of a contractual nature and therefore not to be challenged by judicial review7. The process of judicial review itself hast two stages: A leave application followed by a substantial hearing.8 The requirements, which I will specify here, are checked at the beginning of the process. Many applications fail to comply with the requirements and are not being granted leave for judicial review, thus already ending at this stage. Judicial review is designed as an “avenue of last resort”.9 That is, in Hong Kong there is an obligation to exhaust all other potential remedies before applying for judicial review10. Hence, judicial review is not only narrow in the facts which it reviews but has also only a subordinate function. When applying for leave the applicant has to present the grounds on which he impugns the decision. These grounds are enumerated in RE RIGHT CETRE CO LTD (15/11/1989, HCMP2408/1989) as follows: “First, illegality. This involves proving that the decision was wrong as matter of law. Secondly, impropriety. This involves proving that the process by which the decision was arrived at (not the decision itself) was unfair, or otherwise flawed in some way. Thirdly, irrationality. This involves proving, not that a reasonable man could have come to a different decision, but that no rational person, properly directing himself as to the relevant law and properly appreciating the relevant facts, could possibly have come to the decision under challenge.”
Furthermore “the application for leave shall be made promptly and in any event within three months from the date when grounds for the application first arose.”11 Last but not least, the applicant has to prove that he has sufficient interest in applying for leave for judicial review. 4
See Supperstone, op.cit., 11 Chan, Johannes, Application for Leave for Judicial Review; A Practical Note, Hong Kong Journals Online, Law Lectures for Practitioners (http://sunzi1.lib.hku.hk/hkjo/view/14/1400256.pdf), April 1999, P. 175 6 Olley, Kate, Introduction to Judicial Review in Hong Kong, in: Judicial Review Journal, Vol. 8, Issue 2, June 2003, 109-115 (110) 7 for example PRISCILLA SIT KA YIN v. THE EQUAL OPPORTUNITIES COMMISSION (21/01/1998, HCAL119/1997), at 15 8 Chan, op.cit., p.175 9 HKSAR v. NG PAK MIN (27/07/1999, HCAL70/1999) 10 There are, of course, important exceptions to this duty in “exceptional circumstances”, i.e. if the applicant would have to provoke a decision or a criminal sentence in order to being able to appeal and apply for judicial review subsequently. In this case he was allowed to go for judicial review immediately. See for instance LEUNG TC WILLIAM ROY v. SECRETARY FOR JUSTICE (24/08/2005, HCAL160/2004) 11 O. 53 r. 4 High Court Ordinance 5
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Recent Cases: The importance of judicial review Courage or mischief? – The Court of Final Appeal’s judgment on the right of abode in Hong Kong and its aftermath Hong Kong’s first constitutional debate arose from two judgments of the Court of Final Appeal (CFA), handed down in January 1999. In these proceedings the CFA had to prove whether several provisions of the Immigration Ordinance,12 enacted by the Provisional Legislative Council in July 1997 were constitutional. It decided that they were not. Yet the constitutional debate did not evolve because of the court’s opinion on the provisions in question, but on the court’s approach to this result.
The cases The provisions challenged by judicial review determined the right of abode of Chinese nationals born in Mainland China whose parent(s) were permanent residents of the HKSAR. They stated – in a nutshell – that these persons only had the right of abode if the parent(s) were permanent residents of the HKSAR at the time of birth of the applicant for the right of abode. They also dealt with the right of abode of permanent residents of the HKSAR who were residing in Mainland China. The Ordinance required these persons to hold a one-way permit issued by Mainland Authorities before they could enjoy their right of abode in Hong Kong. As said above, both requirements were considered unconstitutional. In adjudicating the cases, the CFA interpreted the Basic Law – the constitution13 of the HKSAR. Yet, the question was, whether the court had the jurisdiction to interpret the relevant provisions. While it has the power to conduct an interpretation in cases that happen within the autonomy of the region and in some other cases, Article 158 of the Basic Law states: “…if the courts of the Region, in adjudicating cases, need to interpret the provisions of this Law concerning affairs which are the responsibility of the Central People's Government, or concerning the relationship between the Central Authorities and the Region, and if such interpretation will affect the judgments on the cases, the courts of the Region shall, before making their final judgments which are not appealable, seek an interpretation of the relevant provisions from the Standing Committee of the National People's Congress through the Court of Final Appeal of the Region.”14 12
Hereinafter referred to as “the Ordinance” There exists also a discussion whether the Basic Law can be called a “constitution”. Since this discussion is not relevant for the questions here, I will restrict myself to making a reference: Gewirtz, Paul, Approaches to Constitutional Interpretation: Comparative Perspectives and Chinese Characteristics (http://law.hku.hk/basic_law_conference/paul%20gewirtz%20(transcript).htm) 14 Chapter VIII Interpretation and Amendment of the Basic Law, Article 158 13
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Provisions that concern the relationship between the Central Authorities and the Region (called “excluded provisions”) were obviously relevant in the right of abode cases because of the involvement of Mainland Authorities. Starting from this fact, they would therefore be subject to interpretation by the Standing Committee of the National People’s Congress (SC). Although this provision is fairly clear, the CFA arrived at the conclusion that it does not have to seek interpretation by the SC in this case, thus arousing criticism by many, mostly Mainland sources. The question posed by the CFA was which of the provisions applied in the case had to be qualified as being “within the region’s autonomy” or as “excluded provisions” in the sense of the citation above. The CFA concluded, only if the predominant provision was an excluded provision it would have to submit it to the SC for interpretation. It goes without saying that many provisions of the Basic Law cannot be read independently but are related to others and have to be read cohesively. Referring every provision which comes into question to the SC would therefore “be a substantial derogation from the Region's autonomy and cannot be right”15. Since the predominant provision16 in the proceedings before the court was not an excluded one, the court abstained from seeking an interpretation. In its judgments the court also commented, in general terms, the position as to the constitutional jurisdiction of the courts in the HKSAR. In doing so, the CFA referred to the Basic Law and stated “the Region is vested with independent judicial power, including that of final adjudication.” 17 It concluded that it also had the power to examine, whether any legislative acts of the National People’s Congress or its SC were consistent with the Basic Law and to declare them to be invalid if found to be inconsistent.18 “This proposition gains added strength from the circumstance that the Basic Law was enacted to implement China's basic policies regarding Hong Kong to remain unchanged for 50 years as declared and elaborated in the Joint Declaration. Article 159(4) of the Basic Law provides that no amendment thereto shall contravene the established basic policies.”19
The CFA contended that although the courts of Hong Kong had not had jurisdiction in this regard before the handover in 1997, this situation changed fundamentally after that date. Since the Basic Law serves as the constitution of Hong Kong and the courts are vested with independent judicial power within the high degree of autonomy conferred on the region, it is for the courts of the region to determine questions of inconsistency and invalidity when they arise. “This jurisdiction to enforce and interpret the 15
NG KA LING AND ANOTHER v. THE DIRECTOR OF IMMIGRATION (29/01/1999, FACV14/1998) at 102. 16 Articles 22 and 24 of the Basic Law were the relevant ones: while Article 24 being the non-excluded, predominant one and Article 22 being the excluded one. 17 Article 19, Basic Law 18 NG KA LING AND ANOTHER v. THE DIRECTOR OF IMMIGRATION (29/01/1999, FACV14/1998) at 62. 19 ibid. at 65
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Basic Law necessarily entails the jurisdiction above over acts of the National People's Congress and its Standing Committee to ensure their consistency with the Basic Law”.20 In deciding so, the CFA overruled a judgment of the Court of Appeals from 199721 and worked the switches for a new development in constitutional jurisdiction in Hong Kong. However, the reactions to these judgments were rigorous, mostly because Mainland Authorities and scholars perceived this position as an improper upgrade of the HK courts. In a statement22 released via the New China News Agency on February 6th, 1999, scholars from the Mainland, representing the view of the Central Government uttered their concern about the judgment, saying: “According to the PRC Constitution, the NPC was the state organ of the highest authority of the country. Its legislative acts and decisions were not subject to challenge or veto by any other organ. The CFA claimed that it enjoyed such powers. This effectively meant it was above the NPC and its Standing Committee…The Basic Law had not and could not confer such power on the court. The judgment, however, arbitrarily expanded the power of the SAR courts to interpret the provisions of the Basic Law and thereby confused the source of power….The power of interpretation was delegated to the CFA by the SC and not an inherent power of the CFA.”
In the meantime the government feared that thousands of persons, armed with the CFA’s judgment would flood Hong Kong, calling upon their right of abode, thus causing a major economic problem. It presented surveys showing that the number of persons eligible for the right of abode was increased by an estimated number of 1.69 millions.23 What followed were two highly criticized moves by the HKSAR Government. Firstly, it filed a motion in the Court of Final Appeal seeking the court's “clarification of those parts of its judgment given on January 29, 1999, which relate to the National People's Congress and its Standing Committee.”24 This motion was answered by the court thereby clarifying that “…the Court's judgment on 29 January 1999 did not question the authority of the Standing Committee to make an interpretation under Article 158 which would have to be followed by the courts of the Region. The Court accepts that it cannot question that authority. Nor did the Court's judgment question, and the Court accepts that it cannot question, the authority of the National People's Congress or
20
ibid. HKSAR v. MA WAI KWAN DAVID AND OTHERS (29/07/1997, CAQL1/1997) 22 For a full translation of the statement, see Chan, Joseph, a.o. (Eds.), Hong Kong’s Constitutional Debate: Conflict over Interpretation, Hong Kong University Press, 2000, 53-59 23 The Chief Executive’s Report to the State Council concerning the right of abode, May 20th, 1999 (http://www.info.gov.hk/basic_law/upload/973586470/CE-01.doc) 24 view ttp://www.info.gov.hk/gia/general/199902/24/0224118.htm 21
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the Standing Committee to do any act which is in accordance with the provisions of the Basic Law and the procedure therein.”25
It was criticized that the Government put undue pressure on the courts and wanted it to change its judgment. Albeit this softening of the original statement of the court by clarification, the HKSARG applied to the SC for an interpretation of the relevant provisions of the Basic Law in May 1999. This interpretation was returned in June 1999 and stated that the CFA’s judgment was not consistent with the legislative intent of the relevant provisions. Since an interpretation by the SC defines the law as it has always been, the courts had to adhere to the interpretation. However, judgments already handed down were not affected by the interpretation of the SC.26 During the time between the CFA’s judgment in January and the interpretation by the SC in June 1999, immigration procedures continued, including the issuing of removal orders for persons overstaying. However, the situation amounted to a total of 5,308 successful applications for leave for judicial review. In a voluminous judgment from June 30th, 2000, jointly dealing with all cases, the High Court dismissed the judicial reviews, inter alia, by referring to the new and compulsive understanding of the provisions of the Basic Law and the retroactive effect of the interpretation 27 . This judgment closed the debate for the time being, since all appeals were also dismissed28.
Conclusions – need for “political self-restraint” While the constitutionality of the HKSARG’s request to the SC for interpretation remains doubtful in a theoretical sense 29 (as there is no provision in the Basic Law that explicitly empowers the HKSARG to do so) the reality is that the HKSARG leapfrogged this problem. Unsurprisingly, the SC interpreted the Basic Law in a way that favored the HKSARG’s reading of the provisions in question. Once an interpretation is at hand, the courts cannot ignore it.30 It is crucial for the future of the jurisdiction of the Hong Kong courts in constitutional questions, how the HKSARG will act in a similar situation again. While the HKSARG assured that there were “exceptional circumstances that compelled 25
NG KA LING AND ANOTHER v. THE DIRECTOR OF IMMIGRATION (26/02/1999, FACV14/1998) 26 “As from the promulgation of this Interpretation, the courts of the [HKSAR], when referring to the relevant provisions of the Basic Law of the [HKSAR] of the [PRC], shall adhere to this Interpretation. This Interpretation does not affect the right of abode in the [HKSAR] which has been acquired under the judgment of the Court of Final Appeal on the relevant cases dated 29 January 1999 by the parties concerned in the relevant legal proceedings.” Ibid. 27 NG SIU TUNG AND OTHERS v. THE DIRECTOR OF IMMIGRATION (30/06/2000, HCAL81/1999) 28 for details see CACV 415/2000 29 For a critics in terms of the constitutionality of the application see Chen, Albert H Y, The Court of Final Appeal’s Ruling in the ‘Illegal Migrant’ Children Case, in Chan, a.o., op. cit., 73-97 30 “…an interpretation under Article 158…would have to be followed by the courts of the Region.” NG KA LING AND ANOTHER v. THE DIRECTOR OF IMMIGRATION (26/02/1999, FACV14/1998)
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it to request an interpretation by the SC”,31 there is no guarantee that it will use this precedent restrictively in the future. Indeed, since 1997, the HKSARG requested two more interpretations by the SC.32 Frequent solicitation of SC interpretations would undermine the courts’ jurisdiction. Furthermore, they would prejudice the meaning of general terms used in the Basic Law by surrendering the final say in questions concerning the Basic Law to a non-democratic political body. This would also hinder the development of a substantial case law in constitutional affairs in Hong Kong. While court procedures in Hong Kong are conducted on the basis of well known rules that preserve objectivity and continuity, are open to public, traceable and to a certain extent predictable, the drafting process of an interpretation by the SC is not. Neither the determination of “exceptional circumstances” nor the process of interpretation itself is open to public, let alone reviewable by an independent body. In the long run the HKSARG’s tactics of “pre-emptive striking” – anticipating the court’s view by an interpretation of the SC – would seriously harm the Region’s juridical system in regard to its independence from Mainland Authorities. The repeated seeking of an interpretation shows that the HKSARG prefers political expediency over due process.33 Furthermore in 2004 and 2005, it was the court’s procedures that made the HKSARG assume “exceptional circumstances”, thus leading to an interpretation by the SC. In 2005, the HKSARG complained about the pending judicial review procedures in the High Court concerning the length of the term of office of the Chief executive, underlining their possible duration and the uncertainty of the outcome. “…the Government cannot afford the luxury of letting things run their natural course but is obligated to do everything possible to ensure that the new Chief Executive will be elected smoothly… The Government therefore cannot rely on the outcome of the current procedures for a resolution of the matter, but must proceed expeditiously by making a report to the State Council recommending a request for a NPCSC interpretation.”34
Consider the very similar view of the then chief secretary (and now Chief Executive) Donald Tsang in 2004: “The last thing we would like to see would be litigations…We could not afford to face a lengthy period of uncertainty resulting from such
31
Chief Executive’s Report, p.4 (my emphasis) First in 2004, the Government requested the SC’s view on the questions concerning the possible amendment of the Basic Law towards more democracy after 2007. The second interpretation (2005) was sought in order to clarify the meaning of Article 53 (2), concerning the length of the term of office of the Chief Executive. 33 see Leong, Alan SC, “Speech to be Delivered at Opening of the Legal Year 13 January 2003”, http://www.hkba.org/whatsnew/chairman-corner/speeches/2003/opening_of_legal_year-1 3.1.03.doc 34 Leung, Elsie, “Why the Government must seek an interpretation of BL 53(2) from the NPCSC”, http://www.doj.gov.hk/eng/public/pdf/sj20050419e.pdf 32
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litigations, which would create instability.”35
Since the acts of the sovereign – as long as they are in accordance with the Basic Law – are not negotiable once they are at hand, the procedures of the region’s Government preceding an interpretation have to be the starting point if one is to minimize Mainland’s influence in Hong Kong’s constitutional affairs. In the right of abode cases the HKSARG based the existence of “exceptional circumstances” that compelled it to seek interpretation on the economic and social consequences that the court’s decision implied. After the handing down of the CFA’s judgment, the HKSARG alleged the interest of the people of Hong Kong when requesting the interpretation of the SC.36 It said: “Queries and arguments as to whether the CFA's interpretation is in line with the Basic Law have been raised in the community. Public opinion is overwhelmingly in favour of an early resolution of this issue.”37
In the cases regarding the length of the term of office of the Chief Executive, it was the nature of court procedures in connection with the impending vacancy of the office that constituted “exceptional circumstances”. As a result, the keyword “exceptional circumstances” remains flexible, vague and can be adapted as and when required. In the process of the debate on the Government’s requests for interpretation, several proposals as to objectify the proceedings that lead to a request have been made. Alan Leong, the then chairman of the Hong Kong Bar Association, said the HKSARG should refrain from seeking an interpretation after the CFA has finally spoken on an interpretation of the Basic Law.38. I fully agree with this view and would acuminate it by saying that political not judicial self-restraint is the key to a proper development of an independent constitutional jurisdiction in Hong Kong. Despite the great certainty such a concession would produce, it disregards that an interpretation can also be sought during pending court procedures, as in the case concerning the Chief Executive’s term. Thus, instead of focusing on the time after the CFA has adjudicated, one can also turn the attention on objectifying the proceeding that ascertains “exceptional circumstances”. One idea is that the HKSARG should define “exceptional circumstances” clearly in order to make the procedures anteceding an interpretation traceable. Once these procedures are “objectified”, they themselves could be subject to judicial review. I am aware that this view abstracts from the time factor that usually accompanies the decision to seek an interpretation.39
35
“Beijing to interpret Basic Law on Reforms”, South China Morning Post, March 27th, 2004 see for example http://www.info.gov.hk/info/abode-e.htm for a comprehensive collection of press releases by the HKSARG, especially: Interpretation: A ‘legal and constitutional option, May 18th, 2005; 37 Chief Executive’s Report, p.4 38 see, Leong, op. cit. at 4 39 Be it the large number of potential immigrants that could apply for the right of abode every day or the impending vacancy of the CE’s office, time plays an important role whether the Government seeks interpretation in a certain situation. 36
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On the part of the Hong Kong courts, what has to go along with the political self-restraint as suggested here is a more “obedient” CFA. In order to defend itself from too much political pressure by being the decisive body in very delicate political questions, the CFA should apply a more open approach towards Article 158. While European Governments and constitutional courts are aware of and agree with the extensive consequences decisions in constitutional questions can have40, they do not have to consider the presence of a non-democratic sovereign. Thus, the CFA in Hong Kong has to practice a higher standard of self-restraint. As said above, the development of constitutional jurisdiction in Hong Kong very much depends on the HKSARG’s attitude towards this matter. For the time being, the decisions of the HK courts in judicial review cases only remain decisive as long as the do not interfere with strong political interests. I will now descend to the regional level and discuss aspects of judicial review that are of importance for the HKSAR and its regional affairs.
Suing the Government – Politics in Court Introduction “Judicial review should (therefore) be seen in the context of the general administrative system, where different mechanisms are employed to hold public bodies accountable in different ways. Political accountability, for example, is sought through regular elections…Institutions such as courts allow individuals to challenge a decision already made. This form of retrospective ‘check’ is just one technique of controlling discretion.”41
In every democratic system general elections play the leading part in controlling political action. The aforementioned positioning of judicial review emanates from the British political and juridical system. Equally, the rules of procedure of judicial review in Hong Kong derive from the English system. Yet the overall context in Hong Kong is fundamentally different in one regard: Hong Kong does not enjoy the control mechanism through regular elections to the extent the British do. Thus, can this deficit be balanced by imposing greater importance and responsibility on other, existing control mechanisms such as judicial review? Is the system of judicial review suitable for this 40
See for example the Austrian Constitutional court: “The Constitutional Court is the highest state body in Austria when considering constitutional law. By their decisions, the constitutional justices create legal certainty for federal and state legislators, for the administration, as well as for every individual. This is their core responsibility. The Constitutional Court is also one of the highest political bodies in Austria. Sometimes the justices of the Court have to make decisions that carry extensive political consequences.” http://www.vfgh.at/cms/vfgh-site/english/index.html 41 Lord Woolf, Jeffrey Jowell, A.P. Le Sueurde, Smith, Woolf & Jowell’s Principles of Judicial Review, London 1999, p. 4
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function? Or are the courts wronged and overstrained by being obliged to act as umpire between rivaling political groups? I will try to answer this question by looking into recent cases before Hong Kong courts that represented a general political debate. I will focus on how the courts’ role in these procedures was perceived by themselves and by others.
People vs. Government: The courts’ role Generally speaking, Hong Kong residents are increasingly active in taking court action against Governmental decisions. Although the absolute number of judicial review cases remains relatively solid, averaging at around 150 per year.42 many of them are well reported in the media and involve great public interest. Moreover, some are successful and applicants have recognized judicial review procedures as an effective remedy for decisions of administrative authorities. The Society for the Protection of the Harbour, for instance, challenged plans of the Town Planning Board concerning the development of Victoria Harbour and considered taking all lawful action, including judicial reviews, against governmental decisions as one of their principal tasks 43 . One of their cases paid off and, after long and pricey proceedings they successfully forced the Town Planning Board, by means of a judgment of the CFA, to desist from its original plan for reclaimed land in Victoria Harbour and to reconsider the matter respecting the courts interpretation of the relevant Ordinance.44 But how do the courts position themselves in disputes that involve antagonistic political opinions? In a case from late 2004, for example, the High Court elaborated on this question. The background of the case was that the Hong Kong Housing Authority45 (HA) had decided to sell of facilities (retail outlets and car parking spaces) in some of its estates in order to rehabilitate its ailing finances. It planned to sell the facilities to an incorporated real estate investment trust (REIT) which would be floated on the stock exchange to enable the public to invest in units of the trust. Two applications for leave for judicial review were filed shortly after the first formal steps in the process leading to the flotation had been taken. The applicants were tenants of an estate in the one case, and an investor of the REIT in the other case. Both challenged the decision, arguing that the HA was acting ultra vires – i.e. the Authority didn’t have the power to sell the facilities. The tenants, poor elderly people, feared the disposal entailed that social welfare services presently situated in the estates to assist the disadvantaged would themselves become the victims of commercial 42
1999: 147 cases; 2000: 2752, 2001: 3848; 2002: 204; 2003: 131; 2004: 150. The increase in 2000 and 2001 can be traced back to the right of abode cases. (www.judiciary.gov.hk) 43 “Our objectives are as follows: To take all lawful action in stopping any reclamation or encroachment of the harbour which is deemed to be contrary to public interest.” (www.friendsoftheharbour.org) 44 TOWN PLANNING BOARD v. SOCIETY FOR THE PROTECTION OF THE HARBOUR LTD (09/01/2004, FACV14/2003) 45 This is a statutory body established under the Housing Ordinance and is responsible for determining and implementing public housing programs.
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imperatives and would have to move away. The investor on the other hand bearing in mind the security of his investment, sought to clarify the lawfulness of the decision. Since there was great financial interest in the REIT46, media covered the procedures before the High Court intensively. But not only the business community was interested in the proceedings, also the tenants had supporters who rallied in front of the High Court on the day of the hearing47. During the procedures in the tenants’ case the respondent, the HA, complained that the applicants were abusing the court for political ends in order to attempt to embarrass the Authority 48 . The applicants were impoverished elderly people, hence the assumption that someone with political ambitions was “maintaining” this case. While this presumption was true – legislative councilor Albert Cheng was supporting the applications financially – the judge still did not detect an abuse of the court: As long as the applicants themselves had a legitimate interest in the litigation, funding by an outsider out of charity would not be disadvantageous. Due to the pending court procedures the flotation had to be postponed.49 Local business groups blamed Albert Cheng in public for putting Hong Kong’s reputation as a leading financial centre at risk.50 Yet, the court was right in granting leave for judicial review. It is not immodest to support poor people affected by a governmental decision to institute court procedures, even if the reason to do so is politically motivated and self-serving. Political background or motivations do not automatically constitute an abuse of the court. As long as the formal requirements for an application are complied with, the courts cannot refuse to deal with a case. But, for political purposes, judicial review procedures might not be the best option to substantially change a public policy. The aforementioned “retrospective” character of judicial review procedures is one factor that confines the effects of this remedy. This fact can easily be observed in the case of the Harbour Society: Once land is formed by reclamation, it cannot be undone and the reclaimed part of the harbour is lost forever.51 More important for the question of suitability, however, is the nature of judicial review proceedings: Court procedures cannot substitute the political debating and compromising that usually antecedes a policy. The “decision” which can be fought in court is only the expression of the whole policy. Taking a political discussion into a courthouse entails that the situation will be dealt with according to the rules of the game of constitutional law proceedings. These rules are completely different from the methods used in 46
The disposal compounded 180 shopping malls and 79.000 car parks, worth approx. 23 billion HKD 47 “Banks could scrap $ 23b IPO: counsel”, The Standard, Dec. 14th, 2004 48 See the judgment: LO SIU LAN AND ANOTHER v. HONG KONG HOUSING AUTHORITY (15/12/2004, HCAL154/2004) at 15 49 And still is until today. Though, the Government plans to list the REIT next month. This time with the option for subscribers to withdraw if any legal challenge that arises is deemed “substantial” (“REIT may allow withdrawal”, Wall Street Journal Asia, Oct. 18th, 2005) 50 Sing Tao Daily, 21.12.2004 51 TOWN PLANNING BOARD v. SOCIETY FOR THE PROTECTION OF THE HARBOUR LTD (09/01/2004, FACV14/2003 at 4)
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politics. Court procedures will not mirror the full political context of the problem. “It is fundamental for the community to understand that the judge does not function in the political arena where solutions to problems frequently involve a compromise of many factors and interests. The duty of a judge is always to administer justice according to law without fear or favour. A judge should not be deflected from this duty by considering what may be an expedient political solution. As has been well said, justice according to law and convenience are often not on speaking terms.”52
Equally, in judicial review procedures, there is no “compromising”, which is symptomatic for political debating. Either a decision challenged had been made according to the relevant laws and the judicial review will be dismissed, or the judge considers the decision to be inconsistent with the relevant laws. Wherever possible, the judges will relieve the case from its political implications and decide the matter on narrow grounds. In the REIT case, the court confined itself to strictly dealing with the juridical interpretations in question and not to judge the whole policy of the HA. In his decision the judge stated “It is not, of course, for this court to look to the wisdom of the Authority’s decision to sell its retail outlet and carpark facilities. Nor have I been asked in any way to consider whether the Authority has agreed a fair price for its assets. As I have said, the single challenge made goes to the statutory power of the Authority to dispose of the facilities in the manner that it proposes. This, it has been agreed, is a pure matter of interpretation of the Ordinance.”53
In the REIT case, however, the judge arrived at the conclusion that the Authority had not acted ultra vires. The judgment dealt solely with the lawfulness of the decision in regard to its consistency with the relevant Ordinance and did not include any further considerations. Albeit limited in effect, court procedures produce a serious hurdle for the Government, since their outcome cannot be predicted. The uncertainty caused by a pending case can result in economic loss or instability. Hong Kong as well as Mainland politicians therefore seem to have their dilemmas with the courts’ non-utilitarian approach to the facts of a case. In the right of abode cases, for instance, it was said, the CFA failed to take the interests of the Hong Kong people into consideration.54 Yet, as long as the political stage remains constricted in a democratic sense, the Government cannot resent that people use judicial reviews in order to utter dissent. Court procedures, if affordable, remain a very effective way 52
Chief Justice Andrew Kwok-nang Li, Speech at the Opening of the Legal Year 2005, http://www.info.gov.hk/gia/general/200502/17/02170118.htm 53 Ibid. at 6 54 See for instance the argumentation of the SC in its interpretation and the HKSARG in local media during the right of abode cases. They repeatedly complained about the economic impact of the CFA’s decision.
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for individuals to challenge unpopular governmental actions. A (final) judgment dealing with regional matters55must be obeyed by the HKSARG. The role of the courts in Hong Kong is, of course, not always as reluctant and neutral when dealing with judicial reviews as in the REIT case. As said before, the Basic Law uses “ample and general language”,56 leaving a wide margin for its interpretation. When an interpretation of the Basic Law must be conducted, the hands-off approach cannot be applied. Furthermore, the introduction of constitutionally protected individual rights added more restraints to administrative acting. Whenever an infringement of an individual human right by a decision or a law is substantially alleged, the standard of review would have to be most intensive.57 These cases are more sensitive, require more creative action by the court and the range for different solutions is wider. Consider for instance the cases of homosexuals against discriminatory laws all over the world since the 1990s.58 While the need for protection of young persons outweighed the legitimate demand of homosexuals for equality a short time ago in many jurisdictions, the situation has now changed in many countries and the minimum age for sexual intercourse between homosexuals is being equated with the age valid for heterosexual couples. The correlative case in Hong Kong dates from 2005 as a young homosexual, William Leung, challenged four provisions of the criminal law contained in the Crimes Ordinance. The provisions in concern prohibited certain acts of sexual intimacy and buggery, both dependent on the age of the partner(s). Already during court procedures the Government acknowledged the unconstitutionality of three of the four provisions. The remaining contested provision prohibited buggery only for gay couples and not for lesbians or for heterosexuals if either of them is under the age of 21. In adjudicating the case the judge stated that “…it is for the legislature to determine how best to protect young persons and the courts should defer to its sovereignty in this regard.”59
Mr. McCoy SC, leading counsel for the respondent, similarly submitted that “it was for the legislature, if it wished, to reflect the conservative attitude of the Hong Kong community in matters of sexual mores”60. Yet, the degree of deference to be given to the legislature is dependent on the subject matter under consideration. Whenever constitutionally protected individual rights are under consideration, the courts are obliged to give considerably less deference to the legislature than would otherwise be 55
Regarding the “finality” of CFA judgments in matters which do also concern the Mainland Authorities, see Chapter II.1.1 56 NG KA LING AND ANOTHER v. THE DIRECTOR OF IMMIGRATION (26/02/1999, FACV14/1998) at 325 57 TOWN PLANNING BOARD v. SOCIETY FOR THE PROTECTION OF THE HARBOUR LTD (09/01/2004, FACV14/2003 at 4) at 67 58 see for example the case law of the European Court of Human Rights (www.echr.coe.int) 59 LEUNG TC WILLIAM ROY v. SECRETARY FOR JUSTICE (24/08/2005, HCAL160/2004) at 101 60 ibid. at 105
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the case61. In the case of William Leung, for example, the court ruled the remaining provision discriminated directly and indirectly on the basis of sexual orientation.62 It is appropriate to advise the courts to leave it to the Parliament to draw the line within the margin given by the Basic Law, but the limits of this scope must be clear. The enactment of the Bill of Rights Ordinance left the Hong Kong courts well equipped to secure a high standard of human rights jurisdiction in such judicial review cases. In regard to general constitutional questions and to matters that affect the interests of the Central Government, there are serious constraints to the courts’ powers. The aftermath of the right of abode judgments showed the limits of the CFA’s power and independence. The development of the judicial review system in Hong Kong strongly depends on the Region’s and on the Central Government’s behavior in the next few cases that involve substantial political interest. At present, it would be premature to talk about a well-rehearsed system of judicial review in Hong Kong. This system has yet to develop. The judicial review cases described in this paper showed that there is ample scope for development towards a more independent as well as towards a more subordinate role of the courts in Hong Kong. How this may develop will depend on the stakeholders in the decisions and actions they take.
61 62
ibid. at 112 ibid. at 147
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SOURCES
A. Internet: Austrian Constitutional Court (www.vfgh.at) Civic-Exchange Hong Kong (www.civic-exchange.org) Department of Justice, Hong Kong (www.doj.gov.hk) European Court of Human Rights (www.echr.coe.int) Government of the Hong Kong SAR (www.info.gov.hk) Hong Kong Bar Association (www.hkba.org) Judiciary Hong Kong (www.judiciary.gov.hk) Society for the Protection of the Harbour (www.friendsoftheharbour.org)
B. Cases: (Cases cited here or in the footnotes are hyperlinks and can be directly activated by pressing CTRL+Click) HKSAR v. MA WAI KWAN DAVID AND OTHERS (29/07/1997, CAQL1/1997) HKSAR v. NG PAK MIN (27/07/1999, HCAL70/1999) LEUNG TC WILLIAM ROY v. SECRETARY FOR JUSTICE (24/08/2005, HCAL160/2004) LO SIU LAN AND ANOTHER v. HONG KONG HOUSING AUTHORITY (15/12/2004, HCAL154/2004) NG KA LING AND ANOTHER v. THE DIRECTOR OF IMMIGRATION (29/01/1999, FACV14/1998) NG SIU TUNG AND OTHERS v. THE DIRECTOR OF IMMIGRATION (30/06/2000, HCAL81/1999) PRISCILLA SIT KA YIN v. THE EQUAL OPPORTUNITIES COMMISSION (21/01/1998, HCAL119/1997) TOWN PLANNING BOARD v. SOCIETY FOR THE PROTECTION OF THE HARBOUR LTD (09/01/2004, FACV14/2003)