Transforming "fairness" as a ground of judicial review in Hong Kong

Abstract

This paper evaluates the recent development of “fairness” as a ground of judicial review by the courts in Hong Kong. This newly developed ground of fairness is significantly more far-reaching than “procedural fairness” and other existing uses of fairness in judicial review. Key innovations include: (a) the courts’ review of systemic problems with decision-making processes; (b) the extension of the courts’ review of the fairness of such processes beyond the traditional focus on, for example, the right to a hearing; and (c) the introduction of a sliding scale of review with stronger or “anxious” scrutiny of decision-making processes. The paper evaluates the need for these innovations, noting an absence of a conscious internalization of procedural standards in decision making at the executive level. The paper concludes that the ground of fairness, therefore, is a positive development of administrative law. However, in addition to the usual risk of over-judicialization of administrative process, there is a risk that the recently developed ground is too hard-edged as currently formulated. The paper, therefore, proposes the introduction of a justificatory and balancing component to its usage, similar to that used in the context of proportionality. It also proposes a clarification of the kinds of situations that would trigger the use of this stronger ground of fairness.