II. The foundation of judicial review & role of the court
The principles and procedure of judicial review can find their origin in English common law as early as in 1863. One of the mainstream theories is based on the principle that public officials cannot act beyond their power. If a decision exceeds the scope of power, then it is invalid (such as when the decision-maker exceeds his or her power conveyed upon them by legislation). Another theory bases itself on common law, in that the Court possesses inherent power to impose certain standards based on fairness and justice upon decision-makers. Lastly, rule of law is also said to be one of the foundations of judicial review, see the discussion on this point by the Court of Final Appeal in C v Director of Immigration (2013) 16 HKCFAR 280. In Hong Kong, judicial review is also developed by reference to the Hong Kong Bill of Rights Ordinance (Cap. 383) and the Basic Law.
In judicial review, the court is concerned with the legality of administrative decisions. The court can examine whether an administrative decision has been made in accordance with the relevant legislations and other common law principles, and at the same time secure the procedural and substantive fairness of the process. However, the court does not substitute its own view as regards what decision should be made. Provided that the administrative decision is one a minister or an executive body can lawfully make, the court cannot interfere.
General speaking, other than the legality of administrative actions, judicial review proceedings may also be used to challenge the constitutionality of any administrative act and/or enactments (such as ordinances or regulations), and an applicant may rely on the provisions of the Basic Law and/or the Hong Kong Bill of Rights Ordinance (Cap. 383) to make the challenge. See Section IX below for further discussion.
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