“Judicial Review” means a review of the public authority’s decision through judicial procedure, in order to determine whether such decision is constitutional, or whether such decision satisfies the requirement under the administrative law.
“Public Authority” refers to all authorities or organization which could exercise public power, that includes all departments of the Government, the Hospital Authority, the universities, the statutory committees/commission and various public tribunals. In general, judicial review involves mainly debates on and determination of law. Thus, the parties to judicial review are not required to give evidence in court.
The core of judicial review is the debate on constitutional law and administrative law. In relation to constitutional review, it involves the Basic Law, Hong Kong Bill of Rights Ordinance, International Covenant on Civil and Political Right, and International Bills of Human Right. On the other hand, as to administrative review, that includes the determinations on whether the relevant authority has made its decision in accordance with legal procedures, and whether the discretion of public authority has been properly exercised.
Applicant
To lodge an application for judicial review, the applicant must be a legal person whose interest was affected by the decision of the public authority and must be an interest party to the substance of review. Generally, those who are not relevant to the public authority’s decision have right to apply for judicial review.
The Procedure of Judicial Review
The application for judicial review must be lodged within 3 months after the decision is made. The court has the discretion to reject the application if the application was made beyond the limit. Unless there is reasonable and cogent excuse, the Court would normally not entertain the application for review made out of time.
The first step of judicial review is that the applicant makes an ex-parte application of judicial review to the court; such application must come along with detailed legal argument and reasons. Meanwhile, the application is obliged to submit to the Court all relevant documents and well-founded legal arguments.
In case the court grant leave for the application, within 14 days, the applicant shall serve the same set of documents and legal arguments to the relevant public authority.
Thereafter, the public authority as putative respondent, may oppose to the application for judicial review by way of affirmation with relevant legal arguments and supporting documents. Meanwhile, the trial date of judicial review will be scheduled and fixed.
