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Author: Antonio Da Roza

Date: 7/8/10


This was an application for judicial review against the Government for its failure to address the problem of air pollution in Hong Kong. It was held that section 7 of the Air Pollution Control Ordinance makes “direct provision for the Secretary for the Environment, in consultation with a statutory body, not only to introduce air quality objectives but to update them whenever necessary” (para 27). The failure to exercise the power under this section was characterized by Hartmann J (as he then was) as being a matter of policy, which is not the domain of the Courts in judicial review.


However, Hartmann J accepted that it is at least prima facie arguable (for the purposes of leave for judicial review) that the right to life under Article 28 of the Basic Law and Article 2 of the Bill of Rights imposes a duty on the Government to combat air pollution, a duty reflected “more directly in point” in Article 12 of the International Covenant on Economic, Social and Cultural Rights (ICESCR) on the progressive achievement of the highest attainable standard of health (para 17).

Endnote

  1. [2007 HKCU 1265 (unreported, HCAL 35/2007)] – last accessed 10/8/10

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