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Keynote address by the Secretary for Justice, Mr Wong Yan Lung ...

Keynote address by the Secretary for Justice, Mr Wong Yan Lung ...

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- 10 -the implementation does not conflict with the authority’s statutoryduty.22. Where it might have been thought for some time thatthis protection of legitimate expectation was only procedural, theCourt of Final Appeal, some twenty years later, held in one of itsdecisions concerning the right of abode 16 that the protection is alsoafforded in a substantive sense. In so doing, it held thatindividuals had substantive rights to remain in Hong Kong, and notmerely a procedural right to be processed in a particular way, as aresult of official statements. Such substantive rights may arisewhen a public officer has, by way of a promise or establishedpractice, raised a legitimate expectation.23. The notion of ‘legitimate expectation’ is now no lessthan a “household name” among government officials. Becausepublic officials realise their public statements may give rise tolegitimate expectation, they have become more careful about whatthey say. In other words, the risk of judicial reviews has tamed thetongue of the decision makers.Government applying for judicial review24. It is not always the case when the government or apublic body is on the respondent side of a judicial review16Ng Siu-tung and Others v. Director of Immigration [2002] 1 HKLRD 561

- 11 -application. There have been occasions where the Government,with a view to clarifying certain matters of principle affectingproper governance, may have to apply for judicial review,particularly to seek declaratory relief.25. The Secretary for Education, for example, brought anapplication for judicial review to challenge a finding by aCommission of Inquiry which concluded, on the Government’sinterpretation, that direct contacts of a senior government officerwith academic members of an education institution to protestagainst the critical views of the latter, without any threat of sanctionor reprisal, would constitute improper interference with academicfreedom 17 . The Government is concerned that an unreasonablylow threshold for improper interference with academic freedom hasbeen set and, if allowed to stand, is likely to seriously affect thedealings between government officials and academic institutions inthe future. Since the judgment in this judicial review is stillreserved, I must refrain from discussing the matter further.However, this is a case in point demonstrating another obviousconnection between judicial review and good governance.“Effective” judicial review17Secretary for Justice v. Commission of Inquiry on Allegations relating to the Hong Kong Institute ofEducation HCAL 108 of 2007

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