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October 21st, 2011:

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Judicial reviews worth defending

South China Morning Post – 21 Oct 2011

Concerns have been raised that lawyers are abusing the legal process for personal gain by handling judicial reviews challenging government policies. These are serious allegations. Thankfully, there is no evidence to suggest that this is happening. Applications for legal aid are subject to rigorous scrutiny. The merits of each case are carefully examined. There is no reason to think that this screening mechanism is not effective. Moreover, legal fees under the scheme are capped. For that reason, the question posed by pro-government lawmaker Ip Kwok-him on whether there is any mechanism to stop lawyers making money out of legally aided judicial reviews is one which could be seen as a thinly veiled attack on judicial reviews and the independence of the judiciary, prompted by rulings against the administration. Most notable among them is the recent High Court ruling in favour of right of abode for domestic helpers, a case in which opponents feel they have considerable public support.

Thanks partly to legal aid, judicial reviews, many of them against the government, have indeed been a growth area of legal work. The number of applications for help with judicial reviews granted by the Legal Aid Department has risen from 20 out of 147 in 2001 to 93 out of 268 last year. That is a big increase, but not inconsistent with the trend in other common law jurisdictions. Judicial review is a fast-developing area of law. It acts as a brake on abuse of executive power by ensuring that the government operates within the law.

The helper’s abode case, which will be subject to appeal, is not the only politically contentious one. Pro-government politicians have questioned whether lawyers from the pro-democracy Civic Party made any gains from the judicial review of environmental approval that delayed a start on our side of the Hong Kong-Zhuhai-Macau bridge. This one was launched by a retired Tung Chung resident who said she was prompted by “unidentified parties”. The government has since successfully appealed. Concerns about the cost of the delay, which officials say will run into billions, are understandable. Both cases are controversial. But the court agreed to hear them and the government lost both in the first instance, so they cannot have been without merit.

Under Hong Kong’s rule of law an independent judiciary and equality before the law are fundamental principles. Judicial review is a means by which anyone can challenge actions of government they contend are unconstitutional and legal aid is a means by which people of limited means can have equal access to justice.

Any suggestion that lawyers are abusing the process to make money sounds like a cheap shot at the empowerment of ordinary citizens against big government, one aspect of our system that is widely envied and worth defending vigorously.