Public interest litigation in Hong Kong: a new hope for social transformation?

Abstract

Public interest litigation is an important tool for social transformation in many developed and developing countries. It is often used by the underprivileged or the oppressed, whose voices are otherwise under-represented in the democratic process, to vindicate their legal rights and to push for social change through the judicial mechanism. The success of public interest litigation requires a liberal court and activist judges who are willing to loosen traditional adversarial procedural rules in litigation and to allow non-governmental organisations and individuals to bring the often controversial and political public interest issues to the court. In Hong Kong, we see a surge of judicial review cases relating to issues of wide public interest in recent years that are similar to public interest litigation in other jurisdictions. Yet many of these cases are constrained by legal obstacles under existing judicial review rules and the resistance from the court in adjudicating on essentially political questions. This article examines some of the recent public interest judicial review cases in Hong Kong in light of her unique legal and political environment. It analyses the judicial attitude towards public interest cases, and the challenges and opportunities in the development of public interest litigation in Hong Kong.