Judicial Review

Grounds of Judicial Review

These grounds ensure public authorities act lawfully, fairly, and reasonably.

  • Illegality:

    • When a public authority exceeds its legal powers or misinterprets the law.

    • Example: A decision not authorized by legislation can be challenged.

  • Irrationality:

    • A decision is unreasonable that no reasonable authority would have made it.

    • Often termed "Wednesbury unreasonableness."

  • Procedural Impropriety:

    • Decision-making process is flawed.

    • Examples: Bias, Failure to follow proper procedures, Breaches of natural justice.

  • Legitimate Expectation:

    • A public authority creates an expectation through a promise or consistent practice, and then fails to honor that expectation.

  • Breach of Human Rights:

    • Decisions that violate fundamental rights under the Basic Law or the BORO.

    • Examples: Freedom of expression, The right to a fair trial.

  • Error of Law:

    • A public authority incorrectly interprets or applies the law.

    • Example: Misapplying a legal test.

  • Fettering of Discretion:

    • An authority restricts its own discretion by adhering too strictly to a policy, Ignores the specifics of a case.

These grounds uphold the rule of law by ensuring accountability, legality, and fairness in public decision-making.

Constitutional Basis for Judicial Review

Judicial review is the power of courts to review and potentially invalidate laws or government actions inconsistent with the Basic Law.

  • Article 2:

    • Authorizes HK to exercise independent judicial power, including the power of final adjudication.

    • This independence and authority underpin the courts' ability to conduct judicial review without interference.

  • Article 8:

    • Preserves the common law system in HK, which traditionally includes judicial review as a core principle.

    • By maintaining pre-1997 common law practices, the Basic Law ensures that courts can assess the constitutionality of legislation and executive actions.

  • Article 11:

    • Mandates that no law enacted by the Hong Kong legislature may contravene the Basic Law.

    • Implying that courts have the authority to enforce this requirement through judicial review.

  • Article 19:

    • Confirms that HK courts have jurisdiction over all cases in the region.

    • Consistent with the pre-existing judicial system that embraced judicial review.

  • Article 35:

    • Guarantees residents the right to access courts and seek judicial remedies, including challenging executive actions.

    • This is a form of judicial review.

  • Article 80:

    • Vests judicial power in HK’s courts.

    • Reinforcing their role in reviewing legal and administrative matters.

  • Article 158:

    • Grants HK courts the power to interpret the BL when adjudicating cases.

    • Interpretation is a fundamental aspect of judicial review, enabling courts to determine compliance with the Basic Law.

    • The NPCSC retains ultimate interpretative authority in certain cases.

    • Courts have significant autonomy in most matters.

In practice, Hong Kong courts have exercised judicial review, as demonstrated in the case of Ng Ka Ling v Director of Immigration (1999), where the Court of Final Appeal struck down legislation for violating the Basic Law.