Monday, 22 April 2013

Judicial Review and Non-Judicial Control

Here is a hypothetical case based on the facts in LEUNG Chin-man controversy: Andrew is a former government official in charge of land development. He retired in July 2008 and joined the Good Old Days Group (GOD) which bidding for a project development successfully during the term of Andrew. The Code of Conduct for Civil Servant states that any former civil servant who wants to join the business sector after their retirement must get an approval from the Committee of Civil Servant Retirement. According to the code of conduct, it requires the applicant to attach a certificate of declaration of interest with the application form. Furthermore, the approval must be signed by Chairman F, who is Andrew's father-in-law, and other 3 members from the Committee of Civil Servant Retirement. In 2010, Andrew's approval to join GOD was signed by 4 committee members including Chairman F. However, no declaration of interest was provided. Andrews was soon challenged by the public that he has a conflict of interest w/ GOD as he was the former official in charge of approving the project of land development. Rumors forced LegCo to form an investigation committee to hear this case. Later it was found out that legislator C, who was one member sitting in the investigation committee, was an employee of GOD and dismissed 2 years ago, did not declare conflict of interest in the investigation. After the hearing, the investigation committee produced a report saying that Andrew did have a conflict of interest w/ GOD.

The first question come to us is whether the LegCo's decision, which formed the investigation committee, is subject to judicial review. A simple answer is yes. LegCo is obviously a public authority,  and the decision to form a public authority is for the purpose of public benefit. The affected parties will undoubtedly be Andrew and GOD because their reputation will be damaged due to the report. The problem is, according to the decision of Cheng Kar Shun case, appointing a Select Committee is the practical need for the LegCo to fulfil its duties and exercise its powers. And the doctrine of separation of powers requires a court not to intervene the internal management of the Legislative Council. So, is the delegation of its power to an investigation committee subject to the jurisdiction of any court. In the first place it seems, there can be no review of the legislature. However, s.23 of Legislative Council (Powers and Privileges) Ordinance states, 'The council, the President or any officer shall not be subject to the jurisdiction of any court in respect of the lawful exercise of any power conferred or vested in the Council'. This provision would not seem to preclude an examination of unlawful exercises of power by the Council or the President. So Andrew and GOD have strong standing to apply for a judicial review because the delegation may be ultra vires in the aspect of natural justice. They can focus mainly their grounds on rules against bias, because Legistor C should be automatically disqualified.

Besides the decision made by LegCo, it seems there are two other decisions. One is approval made by Andrew involved in the land project. Another is the approval allowing Andrew to join GOD.

Due to the lack of facts, we will not consider the first decision which allowed the land project. The second seems more interesting because it affected nobody's interest immediately after the decision. All the parties involved in that approval, like Andrew, his father-in-law and GOD, were seemed beneficiaries. So it would be very likely that nobody would trouble himself to sue, then there would be no judicial review at all. To address this problem, we can break the discussion into two parts. In the first part, we will seek a practice way to deal w/ such kind of irregularity; In the second part, we will check whether there is really no possibility of judicial review.

Before the discussion, let's recall what is the central aims of judicial review. In simple words, it is for the object of a good administration. This includes ensuring that the government is fair in procedure and acting in the public interest in decision-making. However, judicial review is not the answer to all administrative problems due to its limitations in various aspects. In these situations, there can be other types of practical non-judicial control on government to promote good administration. To better illustrate how this non-judicial control works, the background of the New World case - Tang Chin-man controversy should be checked. Like approval in Andrew's case, the Secretary of Civil Servant, Yue Chung-yee signed the approval for Mr. Leung to take up the job in New World Company. Also, this caused public outcry amidst widespread suspicion of conflict of interest. The pressure of that outcry forced Chief Executive to ask Yue to explain. And about one week later, Yue submitted a report admitting that she had not taken into Mr. Leung's role in Hung Hom Peninsular project when approving his appointment. By reading her report, Chief Executive said, "OK, then you need to reconsider the approval". And the next following day, Mr. Leung resigned from the New World Company. So, we can see that unlike judicial review, which can be a long and expensive process, the non-judicial mechanism is very efficient. In the Leng Chan man controversy, it just spent half a month to achieve the result which has the same effect like certiorari and mandamus. Another thing should be noted in the controversy is check and balances and separation of powers. Although LegCo intervened later, and spent almost two years to produce a report saying that there was serious conflict of interest b/w Mr. Leung and New World Group, and asking Yue to be fully responsible. However, Chief Executive neglected the report because he thought Yue's apology is enough, and he would not seek for her resignation. So, it shows that LegCo cannot replace the Chief Executive's decision w/ its own decision.

Nevertheless, sb may ask whether non-judicial control is the only way to address the issue. Arguably, because Chairmen F seems exercised their power unlawfully, I think it is still amenable to judicial review as long as someone can establish his or her standing and willing to go to court. In my opinion, the first potential applicant is GOD. Let us make an assumption that GOD is actually innocent and it never has any exchange of interest with Andrew. It just wants Andrew to be ordinary employed for business consideration, and they think Andrew can do a good job. In such a situation, the misconduct of Chairman F will invalidate its contract with Andrew and further on affected its goodwill and probably its business. There may be a question whether the it is a direct affection. But it is still an arguable standing. However, what if there is not a public outcry, everything works out ok. Then it makes no sense for GOD to sue. In such a situation, I think the only possibility is to rely on someone is a responsible citizen and incidentally find that there is an irregularity in the exercising of public power and sue on citizen standing. According to Felixstowe Justice, a journalist is entitled to represent the public interest as a "private Attorney-General". In the case of Chu Hoi Dick, the claimant is also a journalist who lunch judicial review via public interest litigation. The only question here is whether the interest of the potential claimant, as a citizen other than an individual, is sufficient. It is a question to be decided up to the court.

All in all, from the example we discussed above, we can see that judicial review is not the only way or maybe not the best way to achieve good administration. And judicial review and other non-judicial control mechanisms should be supplementary to each other.