【明報專訊】我們以普通法為基礎的司法制度裏有一個不可或缺的特徵，就是市民有權去到法院，以司法覆核來挑戰公共機構的決定。由獨立的司法機構去處理司法覆核，對法治極其重要，亦可全面保障我們的權利和自由。司法覆核被視為一國兩制下香港這一制的特色是恰當的。
提出司法覆核必須基於法律理據，不能基於政治理由。司法覆核可以挑戰的決定包括：不符合成文法例或《基本法》的決定、決策過程中有程序不當的決定、超出了一個合理決策者可作的選項的非理性決定。
不能為社會問題提供解決方案
香港與許多其他普通法轄區一樣，司法覆核案件在過去20年急劇增加。這些司法覆核的挑戰通常獲法律援助支援。司法覆核現象已經重塑了法律環境，這個說法絕不為過，現象的成因包括：現代社會日趨繁複、社會管理所需法例大幅增加、《人權法案》及《基本法》的頒布，以及市民對自身權利和自由的意識加強。
我不時向公眾解釋司法覆核的性質及限制。司法覆核不能為社會面臨的複雜的政治、經濟及社會問題提供解決方案。法庭的職能只是按照法律原則來決定事物合法與否的界限。在合法的界限內，這些社會難題只有透過政治領域的討論及妥協，方能找到解決辦法。市民須倚賴政治過程來解決問題，確保政治過程可以恰當及有效地運作的責任，屬於行政機關及立法會。
隨着司法覆核個案增加，社會人士關注到有一些個案顯示司法覆核被濫用，在該些個案中，有人試圖以政治而非法律理據提出司法覆核挑戰。最近，法律界資深人物烈顯倫先生，在一篇像他的個人特色那樣強勁而生動的演說中，對此表示關注。
法庭具有效方法阻濫用
我亦關注這個現象，但我認為把不恰當動機加諸這些申請失敗的司法覆核申請人身上，並不能幫助我們更有建設性地討論這課題。我認同一般人的看法，這些個案主要反映了政治制度的運作有缺陷，這顯然不是司法機構的責任。
可是，必須強調的是，法庭具備有效方法阻止司法覆核被濫用。與一般民事案件不同，申請人展開司法覆核訴訟前，必須先向法庭尋求許可，若法庭拒絕發出許可，他們根本無法展開有關程序。此外，除非法庭認為有良好理由准予延期，有關申請必須適時提出，最遲應在有關理據發生後三個月內提出。此外，法庭亦有權頒布適當的訟費命令。
2007年前，法庭批出司法覆核許可的門檻相對較低，只要案件有潛在可爭拗之處便會獲批准。至2007年，終審法院丟棄原有做法，大幅提高司法覆核的門檻，法庭必須認為有關申請有合理可爭拗之處，因此在現實上有勝訴的機會，假如達不到這標準，法庭便會以公眾利益為由終止這宗司法覆核。
司法覆核許可是一個有效的過濾器，透過上述的測試準則，法庭可濾掉試圖濫用司法覆核的個案，許多司法覆核挑戰因此被截停。
若法庭信納申請人能證明有合理可爭拗之處，並批出了許可，該宗司法覆核就不可能被視為濫用司法程序。無論訴訟最後結果如何，該宗司法覆核獲准繼續進行，是因為法庭認為申請人在現實上有機會勝訴。
當一宗司法覆核獲准展開，這或會對公共機構實施被挑戰的決定帶來不便，耗費時間、開支及造成延誤等。但在法治制度下，便利和公義時有矛盾。
我們不應從負面角度將司法覆核看成對政府的滋擾，相反應正面看待。廣為人敬重的前律政司長黃仁龍於2008年一篇演辭中說：「有效的司法覆核應被視作良好管治的重要基礎。」他表示，「我確信……許多其他在政府內的人亦認同……致力維護合法性、合理性和公正性等崇高準則，以及司法紀律不時帶來的蛻變，可以改善公共行政，令香港成為一個更好的社會、下一代更好的家。」
追求效率 不能以公義為代價
據傳媒報道，烈顯倫先生在演說中批評法官在處理司法覆核案件時不夠強硬，又泛指司法機構未能滿足現今社會的需要。他的評論無疑是出於好意，但我認為他的批評缺乏合理依據。
烈顯倫先生以審案時嚴格講求效率聞名。法官審理案件時，當然要有合理進度，尤其是司法覆核案件。但必須要強調，追求效率絕不能以公義作為代價，司法質素是任何時候都不能夠妥協的，這一點至為重要。
當處理司法覆核許可申請時，法官要仔細謹慎地考慮是否達到合理可爭拗的標準。當法官拒絕發出許可，在合適的個案中會頒布詳盡的拒絕理由，而非簡單幾句交代裁決，好讓公眾及失望的申請人透徹地明白為何申請許可被拒，這樣做有助維護公眾對司法程序的尊重。我對此是理解的，法官不應因此被批評為過分熱心盡責。
烈顯倫先生的演辭予人一個印象，就是司法機構在各方面都令人不滿意。我認為，這說法並不反映真實情况。司法機構雖然常有改革和進步的空間，但我認為司法機構現時狀况良好，近年亦有不少發展，包括改革民事司法制度、推廣調解，以及推進雙語審案。
我認為司法機構會繼續為大眾所尊重。我們擁有矢志為市民大眾服務的優秀法官，他們無畏無私、不偏不倚地處理一切糾紛，包括牽涉政府的案件。我們以普通法為原則的法律制度體現了法治，是一國兩制的重要基石，獲得香港境內和境外一致信賴，我有充足信心，在未來年月乃至2047年後，司法機構將會繼續為香港貢獻良多。
作者是首任終審法院首席法官（1997-2010）
（編者按：原文為英文，本報翻譯為中文，原文請參閱《明報》新聞網觀點版；文內小題及重點黑體為編者所加）
Judicial Review
The citizen's right of access to the courts to challenge
decisions of public authorities by judicial review is an essential feature of
our legal system based on the common law. Judicial review by an independent
Judiciary is fundamental to the rule of law and enables our rights and freedoms
to be fully protected. It is rightly regarded as a distinctive feature of our
system under one country two systems.
A judicial review challenge cannot be made on political
grounds. It must be made on legal grounds. These would include that the
challenged decision was inconsistent with statute or the Basic Law, that there
had been procedural impropriety in making it and that it was irrational in the
sense that it was beyond the range of decisions open to a reasonable
decision-maker.
Consistent with developments in other common law
jurisdictions, judicial review cases have increased in the last two decades. The
challenges are often funded by legal aid. It is not an exaggeration to say that
the growth of judicial review has redefined our legal landscape. This has been
due to various factors, including the increase in the volume of legislation for
the governance of a complex modern society, the enactment of the Bill of Rights
and the Basic Law and citizens' greater awareness of their
rights.
Time and time again, I have tried to explain to the
community the nature and limits of judicial review. Judicial review cannot
provide a solution to the complex political, economic and social problems which
confront our society. The role of the courts is only to determine the limits of
legality in accordance with legal principles. Within those limits, the answers
to those difficult problems must be found through debate and compromise in the
political arena. Citizens must look to the political process for their
resolution. The responsibility for the proper and effective functioning of the
political process of course rests with the executive authorities and the
Legislative Council.
With the growth of judicial review, there has been
concern that there have been cases where this process has been abused. In these
cases, attempts were made to mount a judicial review challenge on political and
not legal grounds. In a recent robust and colourful speech, which is
characteristic of this senior legal figure, Mr Henry Litton also expressed such
concern.
I too am concerned about this phenomenon. I do not
however think that attributing improper motives to the unsuccessful applicants
in such cases would contribute to a constructive debate on this matter. The
common view which I share is that this is mainly a reflection of the
unsatisfactory functioning of the political process. This is of course entirely
outside the Judiciary's responsibility.
However, it must be emphasized that the courts have
effective ways to stop any attempt to abuse judicial review. Unlike ordinary
civil proceedings, an applicant must seek the permission of the court to
commence judicial review proceedings. Where such permission is refused, they
cannot even begin. Further, an application must be made promptly and in any
event within three months from the time when the grounds first arose unless the
court considers that there is good reason for extending time. Moreover, the
court may make appropriate costs order.
Before 2007, the threshold for the grant of permission
was a relatively low one. The test was merely that the case was potentially
arguable. In 2007, the Court of Final Appeal discarded this and raised the
threshold significantly. The test to be applied is that the court has to be
satisfied that there is a reasonably arguable case which enjoys realistic
prospects of success. The Court observed that it is in the public interest that
challenges which fail this test should not proceed.
The grant of permission is an effective filter. By
applying this test, the courts are able to screen out attempts to abuse the
judicial review process. Many challenges have been stopped in this
way.
But once the court is satisfied that the applicant has
shown a reasonably arguable case and grants permission for proceedings to
commence, the judicial review challenge cannot be regarded as an abuse of the
process. Whatever its eventual outcome, the challenge was allowed to commence as
the court was satisfied that it had a realistic prospect of
success.
Where a judicial review challenge has been allowed to
proceed, this may well result in inconvenience to the public authority as it
would involve time, expense and delay in the implementation of the decision
under challenge. But under the rule of law, convenience and justice are
sometimes not on speaking terms.
It would not be right to view judicial review negatively
as a nuisance to government. On the contrary, it should be viewed positively. As
our widely respected former Secretary for Justice, the Honourable Wong Yan Lung,
had observed in a speech in 2008: "Effective judicial review is and remains a
cornerstone for good governance". He stated: "I am convinced and … [this] is
shared by many … in the government, that the commitment to the high standards of
legality, reasonableness and fairness, and the metamorphosis brought about by
judicial discipline at times, will improve public administration, and will make
Hong Kong a better society and home for our next generation."
Mr Litton's speech as reported in the media criticized
judges for being insufficiently robust in dealing with judicial review cases and
the Judiciary generally for not meeting contemporary needs. His comments were no
doubt well intended. But in my view, his criticisms are
unjustified.
Mr Litton is known to be an enthusiastic advocate of
rigorous efficiency in judicial work. Judges must of course deal with cases with
reasonable expedition. This is particularly important in judicial review cases.
But it must be strongly emphasized that the pursuit of efficiency must not be at
the expense of justice. It is of paramount importance to appreciate that the
quality of justice must never be compromised.
In dealing with applications for permission to commence
judicial review proceedings, a judge must give the matter due consideration
before he can decide whether the test of a reasonably arguable case is met.
Where he refuses permission, I can understand why in appropriate cases, a judge
decides to deliver full reasons rather than a terse judgment of a few lines.
This would enable the disappointed applicant and the public to understand fully
why permission was refused. This would enhance respect for the judicial process.
Judges should certainly not be criticized for being conscientious or
over-conscientious.
The impression conveyed by Mr Litton's speech is that all
is not well with the state of the Judiciary. In my view, this does not reflect
the true position. Whilst there is always room for improvement and reform, I
believe that the Judiciary is in good shape. There have been many developments
in recent years, including civil justice reform, the promotion of mediation and
the progress in bilingualism.
I believe that the Judiciary continues to be highly
respected by the community. We have good and dedicated judges who are fully
committed to serving the community by adjudicating disputes, including those
involving government, without fear or favour. Our legal system based on the
common law enshrines the rule of law and is a cornerstone of our society under
one country two systems. It commands confidence both within and outside Hong
Kong. I have every confidence that it will continue to serve us well in the
coming years and beyond 2047.
The Honourable Andrew Li Kwok
Nang
First Chief Justice of the Court of Final Appeal
1997-2010
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