The Foundation of Judicial Review in Hong Kong

The Foundation of Judicial Review in Hong Kong Should the doctrine of ultra vires be regarded as the foundation of judicial review in Hong Kong? If not, what should form the proper constitutional foundation of judicial review in Hong Kong? 1 INTRODUCTION...2 1.1 UNITED KINGDOM DEVELOPMENTS...2 1.1.1 THE MODIFIED ORTHODOX VIEW...2 1.1.2 THE COMMON LAW VIEW...3 2 DETERMINING THE MOST SUITABLE FOUNDATION OF JUDICIAL REVIEW FOR HONG KONG...3 2.1 CONSTITUTIONAL SUPREMACY IN HONG KONG...4 2.1.1 SUBORDINATION OF PRC ACTS UNDER THE BASIC LAW...5 3 ANALYSIS OF THE FORMS...6 3.1 RESPONSES TO THE CRITICISMS OF UK ULTRA VIRES...8 4 CONCLUSION...8 ~ 2,463 words excluding contents and title ~ ~ ~ - 1 -

1 Introduction Discovering the proper foundations for judicial review clarifies the scope of the courts jurisdiction as well as the relationship between the governmental bodies, the rule of law and the constitution. In the search for the most suitable foundation of judicial review, we look at why the courts have jurisdiction over the acts of the administration or executive as opposed to how. The exact mechanisms and principles in judicial review are undoubtedly creations of the judiciary. Before focussing on Hong Kong, it is instructional to study the United Kingdom where scholars have long contested the proper foundation of judicial review 1.1 United Kingdom developments The idea of parliamentary sovereignty has long stood as the cornerstone of the basis of judicial review in the United Kingdom. Parliament had the right to make or unmake any law whatever; and further, that no person or body is recognised by the law of England as having a right to override or set aside the legislation of Parliament. 1 From this background arose the traditional justification for judicial intervention designed to ensure that those to whom such grants of power were made did not transgress the sovereign will of Parliament. 2 Any action taken outside the express or implied intention of Parliament was deemed ultra vires and thus could be struck down. This orthodox view was subject to ardent criticism, however, with opposing scholars counting its weaknesses in addressing the actions of non-statutory bodies and the prerogative. 1.1.1 The modified orthodox view Responding to criticisms of the original ultra vires doctrine, UK scholars developed a modification of the orthodox view. The modified orthodox view maintains that Parliament is supreme and that it must intend its legislation to conform to basic principles of justice which operate in a jurisdiction based on the rule of law. This view assumes that Parliament cannot realistically work out the precise details that will be used to coerce conformity with its intentions and has thus delegated this duty to the courts, which fashion its general intention in accordance with legal principles. This view also considers it too strong a challenge to parliamentary sovereignty to disregard legislative 1 A.V. Dicey (1915) The Law of the Constitution, 8 th ed. 2 Craig, Administrative Law, Sweet & Maxwell at p.5 per DM - 2 -

intent as the foundation of judicial review, which is considered constitutionally entrenched. 3 1.1.2 The common law view The modified orthodox view has been challenged by scholars believing it to be artificial to deny that judicial review principles are developed by the courts and to attribute them to the legislature. 4 The common law view suggests that courts would not succumb to any artificial and uncertain parliamentary intention but instead decide on the appropriate procedural and substantive principles of judicial review based on the rule of law. Despite its criticism that the orthodox view and its variations are mere fig leaves used to honour the unsaid rule of parliamentary supremacy, scholars supporting the common law view would defer to the omnipotence of Parliament and obey express instructions issued by Parliament even if contrary to the rule of law. 5 2 Determining the most suitable foundation of judicial review for Hong Kong In determining the proper foundation of judicial review for Hong Kong, one can look to its historical development. Before the transfer of sovereignty in July 1997, there existed three limbs of judicial review: 1. where courts could invalidate statutes if they contravened British legislation or Hong Kong constitutional law, namely the Letters Patent and Orders in Council; 2. where courts could invalidate administrative action if it contravened either a statutory or constitutional provision; and 3. the power to review acts in general, i.e. the jurisdiction of the court. After the transfer of sovereignty, Hong Kong courts continued to exercise their jurisdiction under the Basic Law, Hong Kong s constitution, which entrenches numerous rights for people in Hong Kong including their right to institute legal proceedings in court against the acts of the executive authorities and their personnel. 6 3 See generally: Forsyth, Of Fig Leaves and Fairy Tales: The Ultra Vires Doctrine, the Sovereignty of Parliament and Judicial Review (1996) 55 CLJ 122. 4 See especially writings by Craig and Oliver on this topic. 5 it will be for Parliament expressly, or in some other unequivocal manner, to demonstrate that it does not wish the normally applicable judicially developed controls to apply in a particular instance. Craig, Competing Models of Judicial Review [1999] PL 428 at 438. See also R (Anufrijeva) v Secretary of State for the Home Department [2003] 3 All ER 827 at p.842 on the application of this principle which gives much deference to the rule of law. 6 Article 35, Basic Law - 3 -

Hong Kong has never experienced any parliamentary sovereignty. Furthermore, the existence of a fully fleshed-out and written constitution is markedly different from the UK, which follows an unwritten constitution. The Basic Law explicitly subordinates the government organs comprising of the judiciary, executive and legislature, mandating that their actions comply with both its provisions and basic human rights namely the International Covenant on Civil and Political Rights (ICCPR), which is given force through the Bill of Rights. That means, instead of parliamentary sovereignty, Hong Kong has constitutional sovereignty. Whatever law Legco enacts must be consistent with the provisions of the Basic Law. 7 Whatever actions the administrators and executive branches of Government perform must be in accordance with the Basic Law and will be amenable to judicial jurisdiction. The courts will protect the rights of Hong Kong people stipulated in the Basic Law and will exercise their jurisdiction in accordingly. 8 Under this system, courts reach the zenith of their powers when they invalidate statutes because this puts them on a virtually equal footing with the legislature. Likewise, since the executive is primarily responsible for the bills that Legco enacts, this scheme puts courts on a virtually equal footing with the executive. 9 2.1 Constitutional supremacy in Hong Kong Sir Anthony Mason once commented that the foundations of judicial review discussed by English scholars lead back to the same point. 10 However, given Hong Kong s very different constitutional order, the study of the basis of judicial review may better delineate the scope of judicial powers in the Territory. The doctrine of ultra vires, insofar as it is based on legislative sovereignty, is clearly not the best foundation upon which judicial reviews in Hong Kong should be based. Even in the UK, Parliamentary sovereignty is being eroded: by its integration into the European Union; enactment of the Human Rights Act 1998; and growing activism by courts in checking the government. 11 In Hong Kong, Legco is clearly constrained by the constitution and thus is not supreme. This was made unequivocal in the cases of Chan Kam Nga and Ng Ka Ling, 12 7 Article 11, Basic Law 8 Article 35, Basic Law 9 T.V. Lee, Aprés Moi le Deluge"? Judicial Review in Hong Kong since Britain Relinquished Sovereignty 11 Ind. Int'l & Comp. L. Rev. 319 10 J. McMillan, The Foundations and Limitations of Judicial Review A Commentary, 2002: On one approach those presumptions are treated as presumptions of statutory interpretation, in the other approach as presumptions arising from the common law, but on either approach the presumptions are similar and produce a similar outcome. 11 If the will of the Queen in Parliament is already being constrained by a group of European law professors sitting in Strasbourg, T. Ginsburg (2003) Judicial Review in New Democracies, Cambridge University Press. 12 Ng Ka Ling v Director of Immigration [1999] 1 HKLRD 304-4 -

where the Hong Kong Court of Final Appeal (CFA) invalidated parts of the Immigration Ordinance for being inconsistent with the Basic Law. In Chan, the issue was whether Chinese nationals born in China before a parent was granted permanent residency in the Region also have the right of abode once that parent becomes a citizen. Article 24 of the Basic Law cites categories of people who qualify as permanent residents of the HKSAR, the first three being: 1. Chinese citizens born in Hong Kong; 2. Chinese citizens who have resided in Hong Kong for a continuous period of not less than seven years; 3. Persons of Chinese nationality born outside Hong Kong of those residents listed in categories 1 and 2. As a supplement to these stipulations, the Immigration Ordinance (No.2) was enacted on 1 July 1997. Ordinance (No.2) requiring that the parent have the right of abode in Hong Kong at the time of birth of that person. 13 However, since the Basic Law did not specify whether the child must be born before or after the parent acquired residency, the CFA ruled the birth limitation in the Immigration Ordinance (No. 2) unconstitutional and granted right of abode to the children. Ng Ka Ling also dealt with a discrepancy between the Basic Law and the Immigration Ordinance between Article 22 and Ordinance (No. 3), enacted on July 10, 1997. As it had in Chan, the CFA deemed the ordinance unconstitutional, declaring that restrictions on entry did not apply to those with right of abode in Hong Kong. These affirmations of constitutional supremacy by the CFA provoked the National Peoples Congress Standing Committee (NPCSC) to restore parts of the Ordinance that were voided. 14 This reinterpretation did not, however, eviscerate judicial review in the context of statutory invalidation as it did not restore all the portions of the Immigration Ordinance invalidated by the CFA. Moreover, the NPCSC did not explicitly declare that Hong Kong courts lacked any power to void local statutes. 2.1.1 Subordination of PRC acts under the Basic Law In fact, the jurisdiction of the courts may go further than to pronounce acts of the legislature as void. In the clarification of Ng Ka Ling issued by the CFA on 26 February 1999, Li, CJ accepted that the courts cannot question the authority of the National People's Congress or the Standing Committee to do any act which is in 13 Lau Kong Yung v Director of Immigration [1999] 3 HKLRD 778 14 The Interpretation by the NPSCSC of Articles 2(4) and 24(2)(3) of the Basic Law of the HKSAR, PRC, 26 June 1999. - 5 -

accordance with the provisions of the Basic Law and the procedure therein. 15 It left open the provocative question of whether the CFA could review (question) acts of the NPC or its Standing Committee to do anything inconsistent with the Basic Law. This powerful obiter dictum further suggests that not only are domestic governmental organs powers governed under the Basic Law, the acts of the PRC government are also subordinate to it. 16, 17 The NPCSC gave this statement its tacit approval, however, by not mentioning it in its 26 June 1999 reinterpretation which amended the effects of the Ng Ka Ling judgement. 18 Li, CJ s position would seem to be a intentional deviation from Chan, J s opinion in Ma Wai Kwan where he stated: Regional courts have no jurisdiction to query the validity of any legislation or acts passed by the sovereign. There is simply no legal basis to do so. It would be difficult to imagine that the Hong Kong court could, while still under British rule, challenge the validity of an Act of Parliament passed in UK or an act of the Queen in Council which had effect on Hong Kong. 19 3 Analysis of the forms The voidance of primary legislation on grounds of unconstitutionality combined with the express words of Article 11 of the Basic Law positively asserts that the legislature does not have an unfettered power to make or unmake laws. 20 The effect of Articles 8, 11, 16 and 35 of the Basic Law is such that it is up to the judiciary to ensure compliance of government organs with the constitution of Hong Kong. It appears that the long tradition of autonomy that Hong Kong courts (as opposed to the legislature) have exhibited gave the drafters of the Basic Law confidence that the judiciary would uphold the constitutional principles. If the justification for judicial review does not lie in legislative supremacy, should Hong Kong instead adopt the common law as the seed of judicial review? That suggestion may be dealt with shortly. Judges in Hong Kong have indeed invoked rules of natural justice and other common law principles in their substantive reasoning in judicial 15 Ng Ka Ling v Director of Immigration (2) [1999] 1 HKLRD 577 16 Article 19, Basic Law expressly removes the jurisdiction of the courts from state matters such as foreign affairs and defence. 17 Compare with the USA experience where state courts have invalidated federal laws for being unconstitutional. E.g. US Supreme Court in In re Bridget R v Cindy R.41 Cal. App. 4th 1483 (1996) 18 This position was also expressed by Chen CJHC in Cheung Lai-Wah (An infant) v Director of Immigration (No.2) [1998] 2 HKC 405; and also A. Chen, The Concept of Justiciability and the Jurisdiction of the Hong Kong Courts (1997) 27 HKLJ 387. 19 HKSAR v Ma Wai Kwan David [1997] 2 HKC 315 this position has previously been criticised as being a misconceived analogy by the CFA in Ng Ka Ling v Director of Immigration [1999] 1 HKLRD 315 20 Article 11, Basic Law: No law enacted by the legislature of the Hong Kong Special Administrative Region shall contravene this law. This clearly contrasts the Dicean view of an unfettered Parliament. - 6 -

review cases. The common law constrains legislative will and executive power within modest boundaries of good faith and constitutional justice. 21 Li CJ, in Ng Ka Ling stated that courts have the duty to examine whether legislation enacted by the legislature of the region or acts of the executive are consistent with the Basic Law, and if found to be inconsistent, hold them to be invalid. This may resemble the USA where, because its constitution does not contain any explicit reference to judicial review, the foundation of that authority has been held to be the common law. 22 However, the Basic Law puts Hong Kong on better ground than both the United Kingdom and the USA there is no need to resort to vague notions of good faith and constitutional justice if there is a written constitution expressly providing for these rights. 23 The Basic Law lays the argument to rest by expressly providing for a right by citizens to institute legal proceedings against the acts of executive authorities. 24 Further, Article 8 provides that the common law shall form part of the law in Hong Kong save for any that contravene the Basic Law and any that are amended by the legislature. That means that the constitution is placed above the common law, and it is the courts responsibility to ensure their actions do not exceed the ambit of the Basic Law. The courts fettered authority would undermine the common law as the foundation of judicial review. Furthermore, it realised that the separation of powers is a foundation principle of administrative / public law it is for the courts to exercise judicial power to determine issues of law. They must not usurp the functions of the executive or the legislature insofar as they comply with the Basic Law. It is submitted that the appropriate foundation for judicial review in Hong Kong may actually be ultra vires. Rather than saying the doctrine is otiose for the narrow reason that the legislature is not supreme, this paper proposes to shift its basis such that any actions committed outside the permitted scope of the Basic Law is ultra vires in its literal sense and thus amenable to judicial review. This way, the source of vires in the ultra vires doctrine applicable to Hong Kong is moved from the legislature to the solid underpinnings of the constitution. 21 Oxford Journal of Legal Studies, 2(4) (2003) 563-584, at 566. That is also the view of Sir John Latham who professed that governments ought to function under law and cannot be above it. 22 See seminal cases such as Hylton v United States 3 U.S. 171 (1796) and Marbury v Madison 5 U.S. 137, which established or at least formalised the US judiciary s power of judicial review. 23 Bokhary speaking in the CFA in Lau Kong Yung v Director of Immigration [1999] 4 HKC 731 at p.776 found it necessary to identify the underlying principles which should govern the decision in question and that general notions of fairness that may reside in the common law may prove helpful, but it is more helpful still to engage openly with the necessary qualities of a modern constitutional democracy. 24 Article 35, Basic Law - 7 -

3.1 Responses to the criticisms of UK ultra vires Whereas this paper submits that the ultra vires doctrine is the most suitable foundation for judicial review in Hong Kong, it must also stand up to the ardent criticism it faces in the UK. There are two main criticisms of this model: Firstly, opponents of the UK ultra vires view assert that it imposes a fictional intention on Parliament. If the constitution of Hong Kong is considered the fountain of powers, mandating organs of government to abide by it, there is nothing fictional being imputed. The provisions of the Basic Law are fully fleshed-out, and where gaps exist, it is up to the courts to fashion the appropriate substantive principles to be used in judicial review. That concession does not mean that the common law should be the foundation of judicial review because the jurisdictional scope of courts is limited by the constitution. Secondly, opponents of the UK ultra vires view assert that it is incomplete and fails to explain judicial review s jurisdiction over non-statutory bodies. The Hong Kong ultra vires model explicitly governs the acts not only of government organs; it also has dominion over the actions of public bodies within the territory, 25 and may even extend to acts of the PRC. 4 Conclusion Since the two main criticisms do not hold sway over the ultra vires doctrine as applied to Hong Kong, its position as the proper foundation of judicial review in Hong Kong is strengthened. It can therefore be concluded that, if the theory of constitutional supremacy is accepted, 26 the ultra vires doctrine can be adjusted to fit the specific circumstances of Hong Kong such that any actions by government organs or perhaps even by the PRC committed outside the permitted scope of the Basic Law is ultra vires in its literal sense and thus amenable to judicial review. 25 Noted that certain rights such as those enshrined in the Bill of Rights Ordinance may have no application to legislation regulating private legal relations Court of Appeal in Tam Hing-yee v Wu Tai-wai [1992] 1 HKLR 185. 26 The point submitted by J. McMillan ibid. at p.5, that there may be a phase of executive and legislative leadership in developing administrative law, is acknowledged. However, any new framework for the control and accountability of state power must still comply with the Basic Law, and it is constitutional supremacy which results in this paper s conclusion. - 8 -