公民黨黨魁梁家傑今日(10月2日)在香港電台節目Letter to Hong Kong回應最近兩宗公眾關注的訴訟，中文譯本摘要如下﹕
Legislator Alan Leong﹕
In April, Madam Chu Yee Wah, a resident of Tung Chung, successfully challenged the Government for passing the environmental assessment of the Hong Kong-Zhuhai-Macau Bridge. The Court of First Instance declared that the report fell short of the requirement of the law. As a result, the Government had to reassess the situation, and work on the Bridge was halted. Media reports in the Mainland were jubilant and marveled at the triumph of the rule of law in Hong Kong which enabled an “old woman to halt a bridge”. But in Hong Kong, the press reported the fury of a political campaign against the applicant and any organization, especially political party, which might have helped her. Isn’t this ironical for a city which prides itself on the rule of law?
The Government went on appeal. Last week, the Court of Appeal allowed the Appeal. But at the same time it affirmed, in its Judgment, a crucial principle that the Government has a duty to minimize pollution; the Court says:
“… the duty to minimize pollution would not depend on the extent of the pollution footprint of a designated project. Whatever the footprint of a project … a proponent must minimize pollution.”
This is a major milestone in advancing the standard of environmental protection in Hong Kong which green groups at once acknowledged. You would expect the public to thank Madam Chu for having made this possible. You would expect the Government to breathe a sign of relief, learned its lesson, affirm the rule of law, and move on. But no. Instead, officials and their supporters brayed for blood. Someone must be blamed for the extra cost to speed up the works. Reporters rounded on Madam Chu on the doorsteps of her home. Will you go on to the Court of Final Appeal? You are just an ignorant old woman, so who is the evil instigator behind you?
Goaded beyond endurance, Madam Chu burst out that she has had enough, call her an old fool if you wish, but she just wanted to be left alone. It is clear that she had been put under tremendous pressure since April, from all sides, including her children and her family. On her was heaped the blame for all sorts of probable or improbable consequences: the supposed loss of thousands of jobs, and now this extra cost of billions of dollars. One can well understand that Madam Chu would want to have nothing more to do with the whole thing.
To turn up the heat further, thinly veiled attacks were made on Civic Party as the “evil backstage blackhand” which manipulated and instigated Madam Chu. In a year of many elections, the political motivation behind such attacks is not difficult to discern.
This is a good point for Hong Kong people to pause and consider what is really happening to our core values. It is the foundation of the rule of law that the Government has to abide by law, and that if it oversteps the limit of the law, any person or group of persons who is affected may seek the intervention of the courts to bring the executive into line. And the correct procedure is judicial review under the strict supervision of the Court. This is our law.
In the unbalanced political structure of Hong Kong, the judicial review is frequently the only weapon with which unjust Government policies are challenged and made to change.
Hong Kong saw the complaint against the reclamation of the Victoria Harbour in 2004; the challenge against the Housing Authority’s power to dispose of its retail and car park facilities to the Link Reit Estate Investment Trust in 2005; the review of the decision refusing to declare the Queen’s Pier a monument in 2007; and the challenge against the failure to legislate on minimum wage in 2009. The Bridge Case is the most recent to join this queue of judicial review cases.
These cases invariably involve a competition between two sets of fundamentally different values: the short-sighted utilitarian approach seeking immediate financial gains on the one hand, and long term sustainable development that will enhance the quality of life on the other. When the Executive and the Legislature have no intention to heed such a fundamental difference and insist on doing things in ways not for the sustainable development of Hong Kong, the people have no choice but to turn to the Judiciary for remedies.
This time, with the Bridge Case, it seems we are seeing a very dangerous development in Hong Kong. The Executive accused the Civic Party of “abusing” the judicial process in order to halt construction of the Bridge for political gains. Political groups and some members of the Legislature even pointed to the Civil Party as the “evil backstage manipulator” who had incited and abetted the applicant to go for judicial review. Yet others call the Party champertor.
The Civic Party denies these accusations. They were unfounded. The Court of Final Appeal already ruled that champerty had no place in litigation involving parties with legitimate common interests of a public or social character. The Civic Party has been a staunch advocate of a green economy and policy of sustainable development for Hong Kong. Better air quality is the concern of an overwhelming majority in our city. We have never been afraid to stand in the forefront of advocating for the conservation and green cause. We have put our professional expertise at the disposal of the community in pursuing and defending what are their rights. But we have never instigated or manipulated Madam Chu or anyone into bringing legal action, nor is this her allegation. We respect the decision of everyone to proceed with an action or to refrain from it, whatever our own wishes.
Controversial judicial reviews, particularly on environmental protection and immigration, are not unique to Hong Kong. The question is, how should our community look at these challenges? Do we respect this fundamental right of access to court and accept it as a civilized way to resolve disputes and clarify the law, and perhaps to rethink whether our law or policy should be changed? Or do we stigmatize every challenge someone dislikes as a political plot? If every individual who brings the case is attacked as trouble-maker, then who would want to come forward and bring the challenge? If anyone who gives him or her advice and assistance is smeared and attacked as “evil manipulator” and champertor, then it will not be long when all but the most courageous will shrink from extending the necessary advice or support. The judicial review we are once so proud of will soon become a dead letter. Or worse, it will become the prerogative of only those who are already politically advantaged.
People should stop hounding Madam Chu now. Instead, they should concentrate on the real issue, which is how much is clean air worth to us, and how can Government do better.
Typhoon Nesat delayed for a day the handing down of the Court’s Judgment in another controversial case: the right of abode of foreign domestic helpers. This time, public fury was whipped up against Civic Party because the Senior Counsel representing the foreign domestic helpers is a member of the Civic Party, and so, the logic goes, it must be the party which has instigated the litigation, and Counsel must be furthering the Party’s evil purposes, whatever they are.
Such reasoning is not only perverse. It is unworthy of a community as sophisticated as Hong Kong. It is not for me to comment on the Court’s decision. One way or another, the matter is most likely to go on to appeal. But I do want to say this: respect the independence of the courts and the right of access to them. It is the cornerstone of our stability under the rule of law.
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