不可能期望政府有合理解釋

香港電視表示願意撤銷/不申請司法覆核,希望政府能夠股解釋不發牌的原因。

當然,我相信這只是虛晃一槍,誰都知道政府不可能在這一刻作出讓人滿意的解釋,香港電視可以以不能接受為由拒絕不申請司法覆核(好像還沒有正式入稟)。但問題的根本是憲政與法治:政府的決定是否合法?現在的提案讓人感覺現時的反對者重視香港電視的牌照多於法治,見小利而忘大義。程序問題不在法律層面上說清楚,將來第四個申請者應該怎麽辦?

香港政府也不可能因爲這樣的提案而突然作出解釋;要解釋就一早解釋清楚了,根本不用等到現在。上法庭是解決這件事的唯一方法,如果香港電視願意放棄司法覆核,或者過程中不提出(拒絕)發牌程序是合法的問題,事件就會不了了之。

一如所料,梁振英報之以廢話

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10 則回應給 不可能期望政府有合理解釋

  1. Bill 說:

    香港電視在現階提出司法覆核許可的申請(leave for judicial review), 許可有可能不獲批准,既然要採取這行動,就索性做過河卒,還講甚麽撤回申請。

    • 山中 說:

      我也不明白,不知他們的法律顧問有什麽意見?

      • Bill 說:

        我們都討論過,香港電視應該按第34(1)(b)先向行政長官會同行政會議提出上訴,失敗後才考慮甲請司法覆核,好過現在的處理方法。這上訴是梁振英重新考慮的下台階,或者給他重新解釋的機會。這樣不更好嗎?

        • 山中 說:

          或許他們對上訴和司法覆核已經打了輸數。
          而且政府好像已經封了上訴一路。

        • rei 說:

          It seems weird to appeal by way of petition to the Chief Executive in Council as the decision was made by the CE in Council. Could HKTV go directly to court as it appears that JR is the last resort?

          • Bill 說:

            It is not a second bite of the cherry. It is what the law has provided, weird it may be. I would exhaust every avenue before venturing JR. From another perspective, what if the court rules against the government? The judge cannot grant the licence to HKTV. The court may ask the CE in Council to reconsider the application. In the end, it may end up in CE in Council again.

  2. rei 說:

    It seems that the current system is against natural justice. If CE in Council is requested to review the decision made by it before, does it mean that CE in Council is asked to be a judge in its own case?

    I think this can be distinguished from the situation where CE in Council is asked to review its decision again after the court rules that the decision was illegal, irrational or there was procedural impropriety. It is because the CE in Council would have to consider the whole issue afresh, taking into account the directions given by the court and not just to review the decision it made before.

    • 山中 說:

      The point of the appeal was that the decision maker has to provide a venue for the applicants to be heard and an explanation why the application was turned down. The applicant can use this information to get a leave of judicial review.

  3. Bill 說:

    I thought I posted a 2-paragraph reply but it just vanished. I say again then.

    I am not sure I can agree that the current system is in breach of natural justice save for the handling of this particular case.

    There is no problem for CE in Council to be a judge of its own case, I paraphrase what rei says. We have to interpret S.34 in a board and liberal sense. It is just analogous to a magistrate reviewing his own determination either by application from the parties or on his own volition. Even if HKTV succeeds in the Judicial Review, the court cannot grant it a licence. The court will only remit the case back to CE in Council to reconsider matters they omitted in the course of consideration or procedural unfairness to be rectified. Therefore to CE in Council to consider the application afresh is within the ambit of the power conferred by the said Ordinance. It is in a way reviewing its previous decision.

    I prefer to exhaust all avenues before the case is taken to court. I would rather leave no stone unturned.

    • 山中 說:

      S.34 also provides a chance for the admin. to correct its mistake. Seeing how things are going, it is, of course, not possible for the gov’t to alter its decision, and yet this process helps the applicants in preparing theirs case in court should they want to apply for JR as it forces the govt to reveal its decision process and criteria. Knowing how the govt made its decisions, the court can rule that the govt has interpreted the law incorrectly or gong beyond its authority as conferred by the law.

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