Abstract
Abstract Hong Kong’s system of administrative law has drawn strength and durability from its English counterpart, on which it was heavily modelled. Too often, however, there is a slavish acceptance of the pre-eminence of English law and a tendency to conservativism and a lack of innovation. This article argues that Hong Kong courts and legislators must dare to diverge from English law where an alternative path would prove more credible or appropriate. Three prisms are deployed through which to argue that a misplaced emulation of English law can result in a poor legal framework. First, it is shown that a failure to properly conceptualize error of law as a ground of judicial review has resulted in a ground that, locally, is in a state of incoherence and disarray and that the admission or non-admission of a distinction between jurisdictional and non-jurisdictional errors urgently requires clarification from the Court of Final Appeal. Second, it is proposed that the English-inspired incorporation of a specific time limit in the rules for applying for judicial review should be abolished in the interests of access to justice and legal certainty, drawing on the experience of jurisdictions such as New Zealand, Canada, and Scotland. Finally, it is explained why the antiquated system of administrative tribunals in Hong Kong, redolent of the unreformed English tribunal system of decades past, needs comprehensive structural and procedural redesign. Courts and legislators must dare to diverge in these areas, with Hong Kong’s administrative law standing on its own two feet, where minds are focused on a genuine, locally crafted improvement of standards prevailing in administrative law and public administration.
Talk to us
Join us for a 30 min session where you can share your feedback and ask us any queries you have
Disclaimer: All third-party content on this website/platform is and will remain the property of their respective owners and is provided on "as is" basis without any warranties, express or implied. Use of third-party content does not indicate any affiliation, sponsorship with or endorsement by them. Any references to third-party content is to identify the corresponding services and shall be considered fair use under The CopyrightLaw.