Friday, March 27, 2020

Eric Ip on China's New Public Health Constitution: a Cause for Hope (The Lancet)

"China's new public health constitution: a cause for hope?"
Eric Ip
The Lancet
Published online on 17 March 2020
Summary: ​China's landmark Basic Healthcare and Health Promotion Law, enacted in December 2019 and set to be implemented in June 2020, is in many ways a de facto constitutional charter for public health, guiding health policy and development in the next decade and beyond. The massive global attention to the outbreak of the 2019 novel coronavirus disease (COVID-19) should not divert us from the potential consequences of this statute as a major determinant of health in the world's most populous country; China's dramatic responses to COVID-19, however, also sheds light on important concerns about the implementation of this law in the near future. Click here to read the full article.

Wednesday, March 25, 2020

Richard Cullen on the Gains from China's Measures Outweigh Costs (China Daily)

Published on 11 March 20020
An editorial in the magazine Economist claimed in February that it was still too early to tell if the gains from the containment policy adopted in China in response to the new coronavirus epidemic were worth the price paid in economic and individual terms.
     In the preceding paragraph, however, the same editorial said that, without these containment measures, China would have "registered many millions of cases and tens of thousands of deaths"... Click here to read the full text.

Monday, March 23, 2020

New Issues - HKU Law's SSRN Legal Studies Research Paper Series (January to March 2020)


Vol. 10, No. 4: Mar 9 , 2020
Po Jen Yap, The University of Hong Kong - Faculty of Law
Zixin Jiang, The University of Hong Kong - Faculty of Law

Syren Johnstone, Faculty of Law, University of Hong Kong, Asian Institute of International Financial Law
Syren Johnstone, Faculty of Law, University of Hong Kong, Asian Institute of International Financial Law
Frederick J. Long, Olympus Capital Asia, Hong Kong

A Viral Warning for Change. COVID-19 Versus the Red Cross: Better Solutions Via Blockchain and Artificial Intelligence
Syren Johnstone, Faculty of Law, University of Hong Kong, Asian Institute of International Financial Law


UNIVERSITY OF HONG KONG FACULTY OF LAW LEGAL STUDIES RESEARCH PAPER SERIES
Vol. 10, No. 3: Mar , 2020

Yahong Li, The University of Hong Kong - Faculty of Law

Research Foundation Review 2017
Jeffery V. Bailey, CFA Institute
Thomas M. Richards, CFA Institute
Frank J. Fabozzi, EDHEC Business School
Sergio M. Focardi, Ecole Superieure d'Ingenierie Leonard de Vinci (ESILV)
Caroline Jonas, CFA Institute Research Foundation
Laurence B. Siegel, CFA Institute Research Foundation, Ford Foundation
Robert C. Pozen, Independent
Suresh Nallareddy, Duke University - Fuqua School of Business
Shivaram Rajgopal, Columbia Business School
John E. Grable, Texas Tech University - College of Human Sciences
Douglas W. Arner, The University of Hong Kong - Faculty of Law
Janos Nathan Barberis, The University of Hong Kong - Faculty of Law, CFTE - Centre for Finance Technology & Entrepreneurship
Ross P. Buckley, University of New South Wales (UNSW) - Faculty of Law
Greg B Davies, University of Oxford - Said Business School
Angel Wu, Independent
Clarke Pitts, Independent

Shahla F. Ali, The University of Hong Kong - Faculty of Law

Kelvin Hiu Fai Kwok, The University of Hong Kong - Faculty of Law

Haochen Sun, The University of Hong Kong - Faculty of Law

Weixia Gu, University of Hong Kong - Faculty of Law

Syren Johnstone, Faculty of Law, University of Hong Kong, Asian Institute of International Financial Law
Frederick J. Long, Olympus Capital Asia, Hong Kong

Kelvin Hiu Fai Kwok, The University of Hong Kong - Faculty of Law

Weixia Gu, University of Hong Kong - Faculty of Law


UNIVERSITY OF HONG KONG FACULTY OF LAW LEGAL STUDIES RESEARCH PAPER SERIES
Vol. 10, No. 2: Jan 29, 2020

Table of Contents


Albert H. Y. Chen, The University of Hong Kong - Faculty of Law

Shahla F. Ali, The University of Hong Kong - Faculty of Law

Eric C. Ip, The University of Hong Kong

Eric C. Ip, The University of Hong Kong

Eric C. Ip, The University of Hong Kong

Fu Hualing, The University of Hong Kong - Faculty of Law

Cora Chan, The University of Hong Kong - Faculty of Law
Fiona de Londras, Birmingham Law School, University of Birmingham, UK, ANU College of Law

Cora Chan, The University of Hong Kong - Faculty of Law

Cora Chan, The University of Hong Kong - Faculty of Law

Friday, March 20, 2020

New Book by Johannes Chan: Righteousness - The Rule of Law: Just Before the Dawn (正道‧法治 ─ 寫在黎明之前)

正道‧法治 ─ 寫在黎明之前 (Righteousness - The Rule of Law: Just Before the Dawn)
a sequel to 正道·大學 : 寫在風雨之後 (Righteousness - The Academia: After the Storm)
Published in January 2020
399 pp
Description: This book is about the rule of law and the challenges to the Hong Kong’s legal system. It comprises seven parts. Part 1, titled the Rule of Law, provides an introduction to some basic concepts about our legal system, such as the independence of the judiciary. Part 2, titled the Basic Law, examines some controversial issues about the Basic Law, such as the principles governing and the restraints on the power of the Standing Committee of the National People’s Congress to interpret the Basic Law, the doctrine of separation of powers, residual powers and the constitutional duties under Article 23 of the Basic Law. Part 3, on Selected Legal Issues, discusses some issues of public concern, such as academic freedom, colocation, civil disobedience, and a special section on a review of the controversies arising from the Extradition Bill. Part 4 focuses on the Courts. It discusses some interesting cases such as the oath case and the transgender case, and reflects on the strengths or weaknesses of our legal system. Part 5, titled Democracy, covers issues such as the core values of Hong Kong, clean and good governance, and the right to self-determination. Part 6 is on Occupy Central Movement. It provides a snapshot of the Occupy Central Movement and makes suggestions on what could be done to resolve the current crisis arising from the controversies over the anti-extradition Bill. The last part, Part 7 on China, discusses some major cases involving China, including the cases of Liu Xiaobo, Meng Wanzhou, sovereignty disputes over South Sea, and explores the difficulties that hinder the development of the rule of law in the Mainland. Through these discussions and commentaries, it is hoped that it will allow the readers to have a better understanding of these social and legal controversies, and in turn, a better understanding of the rule of law and our legal system.
(這本書集中談及法治和香港法制面臨的困境,全書共分為七部份:​第一部份為「法治篇」,希望為讀者提供一些對法制的基本認識。第二部份為「基本法篇」,當中涉獵一些相當具爭議的問題,例如人大釋法及釋法所應受到的限制、人大釋法的追溯力、三權分立及第二十三條立法的憲制責任等。​​第三部份為「專題篇」,集中討論一些特定議題,如學術自由、一地兩檢和公民抗命,亦有一個專門系列,反思《逃犯條例》風波的前因後果。​​第四部份為「法庭篇」,討論一些有趣或值得反思的案件,從中檢視我們的法律制度。​​第五部份為「民主篇」,談到香港的核心價值如廉潔及良好管治,對歷任特首的評價及從法律角度看何謂民族自決等。第六部份的「佔中篇」,由佔中談到《逃犯條例》風波,分析當中的前因後果及如何走出困局。最後一部份為「中國篇」,當中對一些具爭議的案件如劉曉波案的判詞作出評論,南海主權案,孟晩舟​案以至中國對《聯合聲明》的看法,從中探討中國當前在法治建設上的困局。透過這些評論,除令讀者可以對一些具爭議的案件及社會事件有多一個角度的了解,亦希望可以加深讀者對法治和我們的法律制度的認識。)

Thursday, March 19, 2020

Danny Gittings on Unpalatable Realities and Hard Choices - Hong Kong's Article 23 (new book chapter)

"Unpalatable Realities and Hard Choices"
Danny Gittings (PhD candidate)
Chapter 16, pp. 297-306
Introduction: The unmistakable message running through the chapters in Part III of this book is that any fresh attempt to enact comprehensive Article 23 legislation is virtually certain to pose far greater challenges to Hong Kong's rule of law and freedoms than its 2003 predecessor. While that, ultimately abandoned, legislative effort was rightly seen as posing significant challenges at the time, for all its flaws many of the offences proposed during that earlier exercise were confined to conduct that means, with the latter defined by reference to anti-terrorism legislation. Then Chief Executive Tung Chee-hwa's administration was careful to stress that the 'mere expression of views' would not have been outlawed under the National Security (Legislative Provisions) Bill 2003, unless this incited others to use either force or serious criminal means...

Wednesday, March 18, 2020

Yahong Li on Copyright Issues with the “Black Hole” Image and their Legal Implications (Cardozo Arts & Ent LJ)

"Copyright Issues With The “Black Hole” Image And Their Legal Implications"
Published on 31 January 2020
Abstract: The release of the world’s first-ever black hole image generated an immediate copyright dispute and revealed multiple copyright issues that remain unsettled. This Article argues that the black hole image should be left in the public domain without copyright protection for the following reasons: First, the image’s copyrightability and copyright ownership are too uncertain to warrant legal protection, making fair use and compulsory licensing largely irrelevant; second, the image is a work of worldwide significance that was created through broad international collaboration with substantial public funding, which strongly implies a public interest in access to the work; and third, a Creative Commons 4.0 Attribution license cannot guarantee public access because it can be changed at any time to a more restrictive license. This Article concludes that only by leaving the black hole image in the public domain can copyright’s objective of increasing public access to creative works and promoting scientific progress be achieved.

Yahong Li on the Age of Remix and Copyright Law Reform (Law, Innovation and Technology)

''The age of remix and copyright law reform''
Published on 18 February 2020
Abstract: The remix has emerged as a dominant force of creation in the digital and Internet age. The solutions under current copyright law such as fair use as well as voluntary, compulsory and public licencing have failed to adequately protect remix works and remixers, and as a result hampered the creativity of remix artists. New approaches are needed to cope with the challenges. This article proposes to add remix as a protectable subject matter; create a right to remix and grant it to remixers; obligate remixers to attribute source works to copyright holders and remunerate them for remixing; require the same remix rights and obligations to be passed on to future remixers; and impose a statutory levy on social media for using remixes. It is argued that the proposed approach can better protect remix creation and help achieve an optimal balance of interests between copyright holders, social media and users.

Tuesday, March 10, 2020

Calvin Ho on the Regulation of Human Germline Genome Modification in Singapore (new book chapter)

Summary: In Singapore, genome editing techniques may be applied in research but not for therapeutic (or clinical) purposes. Broadly speaking, the legal, regulatory and ethical provisions that apply to genome editing are drawn from five (at times overlapping) regulatory regimes: (i) research involving human embryos and stem cells; (ii) research involving assisted reproduction centers (and assisted reproduction services); (iii) research involving non-human animals; (iv) human biomedical research other than clinical trials; and (v) clinical trials. A human embryo may be created solely for the purposes of research (to study a genome editing technique, for instance), provided certain conditions are met and requisite approvals are obtained. Any such research should not extend beyond fourteen days from the time that the embryo was created. These requirements apply mutatis mutandis to the use of genome editing techniques to modify the genome of human oocytes and embryos. Owing to a moratorium that has been imposed, human germline genetic modification is not allowed in the clinical setting. However, it is less clear if such procedures could be applied in a clinical trial. This chapter provides an analysis of the regulatory framework and its application, as well as how it is expected to change in the foreseeable future.

Sunday, March 8, 2020

New Book: Hong Kong Constitutionalism: The British Legacy and the Chinese Future (Richard Cullen)

Routledge
Published on 17 February 2020
262 pp.
Description: Hong Kong is widely regarded as an exemplar of authoritarian jurisdictions with a positive history of adhering to Rule of Law–shaped governance systems. British Hong Kong provides a remarkable story of the effective development and consolidation of such a system, which has continued to apply since 1997, when it became the Hong Kong Special Administrative Region (HKSAR) within the People’s Republic of China (PRC).
     This book adopts a fresh approach in examining the evolution of Hong Kong’s political-legal experience. It establishes that these prominent governance achievements were built on particular British constitutional foundations forged over many centuries. The work shows how the analysis of the British theorist Albert Dicey and, in particular, “Diceyan Constitutionalism” was fundamental, within the pivotal context of “Chinese Familism”, in shaping the development of governance institutions and operational procedures within the new British Colony.
     It discusses how Hong Kong’s system of Authoritarian Legality has come to pass. Exploring the essence of that system, the study probes how thoroughly it has been stress-tested, not least in 2019, and how well it may be placed to cope with tests yet to come. It also analyzes Hong Kong–Beijing relations and the long-term prospects for the HKSAR within the PRC based on a balanced contemporary assessment of China’s exceptional One Party State.

Richard Cullen on Coronavirus Outbreak Promoting Intolerance and Bigotry (China Daily)

28 Feb 2020
Using a Chinese metric, one can credibly describe the long era of European history following the fall of the Western Roman Empire in AD 476 until 1945 as, more often than not, a “warring states” period. Before and after that fall, powerful tribes invaded by land from the north. Vikings later did likewise by the sea. Within much of Europe, numerous kingdoms were recurrently engaged in conflict with one another. Then came the Reformation in the 16th century. Christianity was split as never before. Still, more savage levels of warfare followed.
     Martin Luther, the man who did most to trigger the Reformation, was deeply hostile to the pope and the Roman Catholic Church. In due course, he also became militantly anti-Jewish. Here we encounter another severe Western religious divide — one which dates back over 2,000 years to the dawn of the birth of Christianity.
     In the 20th century, Europe brought us World War I, from 1914 to 1918 — the “war to end all wars”. That war did not secure this outcome. World War II followed from 1939 to 1945.
     The most infamous aspect of WWII was the Holocaust — the name given to the horrific Nazi-German scheme where millions of Jews and other “undesirables” were exterminated in a series of central European death camps. As it happens, Luther’s anti-Jewish legacy helped lay important foundations for this genocidal project.
     The propagation of misleading and false information, for example citing the dangers of eating regular Chinese food, about the disease is epidemic. Highly discriminatory discussion and treatment of Chinese people is increasingly rampant in places like Australia, the UK, and the US
     The lead-up to this overwhelming terror encompassed years of fearsome Nazi attacks on Jews, which included Kristallnacht, in November 1938, when hundreds of synagogues were wrecked, thousands of Jewish businesses were destroyed and some 30,000 Jews were arrested and sent to concentration camps.
     The extreme revulsion felt around the world — after the totality of these unspeakable Nazi projects was revealed — helped energize a powerful desire to create the United Nations. In early 1946, the first meeting of the UN General Assembly was held in London. In late 1948, the General Assembly adopted the Universal Declaration of Human Rights (UDHR) as a pivotal part of the project to protect individual rights against horrific abuse.
     This seminal international instrument states in its title that it is a universal declaration. In the preamble, it goes on to proclaim the essential need for “the promotion of universal respect for and observance of human rights and fundamental freedoms”.
     These are admirable aims. Since 1948, a vast human rights movement has evolved around the globe, standing on the shoulders of the UDHR. This movement has asserted the crucial need to protect human rights and its readiness to do so.
     The outbreak of the new coronavirus in China, in Wuhan, in 2019 has, however, conspicuously tested this readiness on a global basis...  Click here to read the full text. 

Thursday, March 5, 2020

New Book: China's National Security: Endangering Hong Kong's Rule of Law? (Cora Chan & Fiona de Londras)

China's National Security: Endangering Hong Kong's Rule of Law?
Editors: Cora Chan & Fiona de Londras
Hart Publishing
March 2020, 356 pp.
Description: All states are challenged by the need to protect national security while maintaining the rule of law, but the issue is particularly complex in the China–Hong Kong context. This timely and important book explores how China conceives of its national security and the position of Hong Kong. It considers the risks of introducing national security legislation in Hong Kong, and Hong Kong's sources of resilience against encroachments on its rule of law that may come under the guise of national security. It points to what may be needed to maintain Hong Kong's rule of law once China's 50-year commitment to its autonomy ends in 2047.
   The contributors to this book include world-renowned scholars in comparative public law and national security law. The collection covers a variety of disciplines and jurisdictions, and both scholarly and practical perspectives to present a forward-looking analysis on the rule of law in Hong Kong. It illustrates how Hong Kong may succeed in resisting pressure to advance China's security interests through repressive law. Given China's growing international stature, the book's reflections on China's approach to security have much to tell us about its potential impact on the global political, security, and economic order.
     This book is the output of a collaborative project based in the Centre for Comparative and Public Law.  Faculty contributors included Cora Chan, Albert Chen, Hualing Fu, Simon Young, Johannes Chan, Danny Gittings (PhD candidate) and Yash Ghai.

Cora Chan and Fiona de Londras on China's National Security in Hong Kong: A Challenge for Constitutionalism, Autonomy and the Rule of Law (new book chapter)

"Introduction: China's National Security in Hong Kong: A Challenge for Constitutionalism, Autonomy and the Rule of Law"
Cora Chan and Fiona de Londras
Introduction: For 30 years now, the Hong Kong people have persevered in holding an annual candlelight vigil on 4 June to commemorate the 1989 Tiananmen Square Massacre, urging the Chinese Government to admit it was wrong to perpetrate the massacre and to end one-party rule. Hong Kong is the only jurisdiction in China in which such a demonstration could openly take place. A former British colony and now a Special Administrative Region (SAR) of the People's Republic of China (PRC or China), since its return to Chinese sovereignty in 1997 Hong Kong has been governed under the framework of 'one country, two systems', which allows it to practice separate economic, legal and political systems from those on the mainland. The framework's aim is to preserve Hong Kong's distinctiveness vis-a-vis China, including its liberal rule of law tradition, which remains strong after more than two decades of Chinese rule. Yet, given China's intensifying national security advances and rising economic stature, real questions arise about how much longer, and by what means, this tradition can persist.
     In this book we aim to explore those questions, understanding them through the prism of the query suggested by its title - Does China's national security endanger Hong Kong's rule of law? - by investigating whether, and if so how, China's national security can be protected without jeopardizing the rule of law in Hong Kong. From the perspective of both China and Hong Kong this is a vitally important question, not least because it goes to the heart of whether 'one country, two systems' is a viable model for governing the constitutional relationship between them in the long run. Although the opening up of China's economy has rendered the economic differences between China and Hong Kong much less apparent than when that governing model was first conceived, their legal traditions remain highly divergent. For many Hong Kong people the biggest challenge in implementing 'one country, two systems' has been maintaining Hong Kong's vibrant common law system, with its respect for human rights and the separation of powers, within the envelope of China's Leninist legal system. A solution to that challenge would resolve the broader question of how to make this constitutional model work. This is of wider significance for China: from its perspective what is at stake is not just the ability to govern Hong Kong and continue utilizing the territory to facilitate its market reforms, but also the prospect of reunification with Taiwan, for which the 'one country, two systems' model was originally designed. What is at stake for the seven million inhabitants of Hong Kong is not just the ability to maintain a separate legal system, but the very identity of Hong Kong, which has long defined itself by being what China is not. For Hong Kong people, without the rule of law, the territory seems destined to become 'just another Chinese city'.
     When it comes to security, the relationship between China and Hong Kong, and the functioning of 'one country, two systems' are especially challenging; on the one hand, China fears that security risks to the overall state may foment and find operational space in Hong Kong and thus insists that the Hong Kong Government introduce what it considers 'appropriate' security-related laws; on the other, people in Hong Kong fear the imposition of such laws in a way that undermines their civil liberties, including liberties on the basis of which Beijing can be challenged, organised against and subjected to public criticism. Both concerns have purchase, both point towards the very real difficulties of reconciling two fundamentally different dispositions towards law and legality within one overall national legal system.

Albert Chen on the Project of 'One Country, Two Systems' and the Question of National Security (new book chapter)

"Hong Kong in China: the Project of 'One Country, Two Systems' and the Question of National Security"
Introduction: In July 2017, Hong Kong celebrated the 20th anniversary of the establishment of the Hong Kong Special Administrative Region (HKSAR) of the People's Republic of China (PRC). In October 2017, the 19th National Congress of the Chinese Communist Party was convened, at which General Secretary Xi Jinping outlined a grand vision for China's strategic development all the way up to the middle of the twenty-first century. The vision was termed 'socialism with Chinese characteristics for the new age. It consists of 14 policy components, and the 'one country, two systems' policy is one of them. What was this policy originally and how has it been implemented in the case of Hong Kong? What is the status of Hong Kong as a special administrative region (SAR) of the PRC? What is the nature of Hong Kong's 'high degree of autonomy' - a term used in both the Sino-British Joint Declaration on the Question of Hong Kong (1984) and the Basic Law of the HKSAR of the PRC (1990)? How does the Basic Law seek to protect China's national security and limit Hong Kong's autonomy for this purpose? This chapter explores these questions. 
     Although the HKSAR is our focus, it should be borned in mind that Hong Kong is one of the two SARs of the PRC, and the other SAR is Macau. Following the reunification of Hong Kong and Macau with China in 1997 and 1999 respectively, the structure of the PRC consists of a national or central government, and at the level directly below it, 27 provincial governments (including the governments of five autonomous regions but excluding Taiwan), four governments of municipalities directly under the Central Government, and two governments of the SARS (Hong Kong and Macau).
     Chinese scholars have always stressed that PRC is a unitary state. It is not a federal system; there is nothing in the PRC Constitution that provides for a formal division of power between the national Government and the provincial, municipal, and SAR governments. That is, there is no constitutional limitation on the capacity of the national Government to exercise power with regard to any matter within any province, city or SAR pf the PRC. However, since the enactment of the Basic Laws of the HKSARs of Hong Kong and Macau, the powers that the Central Government may exercise with regard to the SARs have been constrained by the Basic Laws. It can be argued that the concept of an SAR within the PRC with a high degree of autonomy, and the related policy of 'one country, two systems' represent a substantial modification of the original model of a highly centralized unitary state...

Hualing Fu on China's Imperatives for National Security Legislation (new book chapter)

"China's Imperatives for National Security Legislation"
Introduction: In his speech to celebrate the 20th anniversary of Hong Kong's return to China, President Xi highlighted two national security threats that Hong Kong may pose to China. One is the traditional concern of territorial integrity. While Xi did not specifically mention the emerging secessionist advocacy in Hong Kong, he made it clear that any attempt to harm China's sovereignty will be 'absolutely impermissible.' A second threat concerns the use of Hong Kong as a base to endanger China's security, broadly defined as 'us(ing) Hong Kong to carry out infiltration and sabotage activities against the mainland.' Those two threats in Hong Kong are microcosms of what China has claimed to be the larger national security threat that it faces.
     In the eyes of the Central Government, those threats are not imagined. They are real and live issues facing Hong Kong and China. Coinciding with Xi's warning, Hong Kong courts have been handling down decisions on two types of cases: one is the disqualification of members of the Legislative Council (LegCo) from assuming legislative office for, essentially, their advocacy of Hong Kong's independence in violation of the oaths-taking law; and the other is criminal prosecution (ie a democratic movement demanding universal suffrage, widely known as the Occupy Central Movement, and riotous activities that followed it). Regarding both as posing a threat to its national security, China demands effective political and legal action to remove these risk factors.
     This security concern is in many ways a subsidiary question to the working of the 'one country, two systems' policy which is considered in detail in other contributions to this volume. Xi's warning reflects a long standing and now entrenched fear that Hong Kong's high degree of autonomy, its growing impulse towards democracy, its political stagnation, and (as Beijing puts it) its occasional democratic violence may have turned a historically glorious city that China used shift in the balance that underpins 'one country, two systems' to give priority to the concept of sovereignty, central control over Hong Kong affairs, and above all of the contention is the demand from the Central Government for Hong Kong to enact national security legislation pursuant to Article 23 of the Basic Law.
     This chapter discusses China's new national security regime that includes Hong Kong as an integral part, and its implications for Hong Kong's own domestic security laws. In particular, it will outline China's internal and external security in Hong Kong, and explore the critical questions of whether the introduction of a nationals security in Hong Kong is necessary or sufficient to address prevailing security concerns regarding Hong Kong and China, as well as its potential impact on rights and freedoms that Hong Kong treasures. China's Party State has given priority to stability and security as a development strategy and increasingly sees Hong Kong's democratic aspiration as a threat to China's national security. Since the failed attempt in 2003 to enact national security legislation, the Hong Kong Government has been reluctant to reactivate the legislative process, but how has Hong Kong as a whole and the courts in particular struck a balance between China's national security and Hong Kong's struggle for democracy and maintenance of rule of law? How has this small liberal city engaged in a mega constitutional dialogue with its authoritarian sovereign?

Simon Young on Old Law in New Bottles: Reintroducing National Security Legislation in Hong Kong (new book chapter)

"Old Law in New Bottles: Reintroducing National Security Legislation in Hong Kong"
Introduction: It is unthinkable that any future legislative exercise to reintroduce national security legislation in Hong Kong would start from a clean slate. To do so would be to ignore the considerable amount of intellectual work and public debate that went into the 2003 proposals. Those proposals had imperfections, but they also had some merit in proposing to modernise existing offences and abolish laws that, if used, would impinge on fundamental rights protected in the Basic Law. However, just as it would be foolhardy to disregard the 2003 proposals, it would be equally so to believe those proposals could be reintroduced without change; they are now old bottles for old wine. Important developments since 2003 in the legal and political contexts of China, Hong Kong and Macau need to be taken into account in any future exercise. Relevant international developments in anti-terrorism laws should also inform law-making deliberations.
     This chapter considers the shape of new bottles for the old law of national security in Hong Kong. It identifies important local and international developments relevant to any future Article 23 legislative exercise, particularly two of the controversial proposals of 2003 concerning the offence of secession and the proscription mechanism for foreign political organisations. It will be argued there is no justification for reintroducing the proscription mechanism and its accompanying criminal offence. As for the secession offence, the 2003 proposal can be made legitimate by drafting the terms more clearly and keeping the scope within tighter limits. It is further argued that notwithstanding the rise in pro-independence sentiments amongst a small number of people in Hong Kong, introducing an additional offence criminalising the advocacy of secession would be unjustified and highly problematic.
     The chapter begins with a review of significant legal developments since 2003. First there is the case law of the Court of Final Appeal (CFA), from which can be derived a set of legislative guidelines for drafting national security offences. Next there are the legislative developments in mainland China and Macau related to national security. Finally, the consequences and experience of post-9/11 antiterrorism legislation may shed light on the merits of adopting similar procedural mechanisms. Following this review, proposals for the secession offence, required by Article 23, and a proscription mechanism for individuals and bodies on national security grounds are discussed having regard to the developments since 2003 particularly the legislative guidelines proposed in this chapter...

Cora Chan and Fiona de Londras on Building Rule of Law Resilience Through Institutions; A Proposed Institutional Infrastructure for National Security Legislation (new book chapter)

"Building Rule of Law Resilience Through Institutions; A Proposed Institutional Infrastructure for National Security Legislation"
Cora Chan and Fiona de Londras
Introduction: Institutions can help to embed and protect the rule of law, even in the face of seemingly oppressive and worrying legislative moves to 'protect' security. Of course, many of those institutions - courts, the legal profession, the international human rimight infrastructure - have already been canvassed in this collection as possible bulwarks against the encroachment of China's national security on Hong Kong's rule of law. However, in this chapter we wish to propose the construction of a new institutional architecture that is designed systematically to build rights-based and rule of law concerns into the context in which an Article 23 law or similar legislation would operate and China's national security imperatives might 'leak' (formally or informally) into the law, politics and practice of governance in Hong Kong. As is well-known, Article 23 of the Basic Law provides that Hong Kong shall enact law on its own to prohibit any act of treason, secession, sedition, subversion, against the Central People's Government, or theft of state secrets, to prohibit foreign political organizations or bodies of the Region from establishing ties with foreign political organizations or bodies. This is widely understood as an obligation to introduce national security law in Hong Kong, although that obligation has not yet been fulfilled. 
     In undertaking our task in this chapter, we recognize that institutions alone are not sufficient to reorient process of law, policy and operation that have at their heart an oppressive approach to protecting national security that suppresses, among other things, political dissent and organizing. However, neither is the text of a law itself, so that even if - as has been widely proposed - an Article 23 law is drafted in a way that minimizes its potential disruption to the ordinary criminal law and the rule of law, institutions will still be important as it is through them that the law will be interpreted, applied, reviewed, revised, resisted and realised. Institutions are the places where everything happens; state power flows through institutions (such as police forces, intelligence agencies and executive bodies), is formally constrained through institutions (such as courts and political institutions), and is called to account also through informal institutions (such as civil society and the electorate). Thus, we start from the institution that institutions founded on sound principles, effectively constructed, and independent in their operations - that is, institutions that are 'strong' in the language of the Sustainable Development Goals - have the capacity at the very least to inculcate participatory, reflexive, right-based modes of working that in turn may temper the operation of repressive security laws and policies. 
     We start this chapter by considering the role of institutions in a system that is committed to sustainable security, and then consider the existing institutional infrastructure in Hong Kong in the light of this. That consideration reveals system concerns that, we argue, must be addressed if there is to be any chance of Article 23 legislation or the like being something less than a license for oppressive governance by Beijing in Hong Kong. Some of those difficulties are reflections of broader challenges of constitutional infrastructure between Hong Kong and Beijing which take on a particular urgency and challenge in the context of security, while others are subject specific, focused on the particular dynamics and anxieties of security as a rhetoric and a mode of governance. Having mapped the challenge around institutional infrastructure in these first two parts, we then go on to propose a new institutional architecture within which national security laws in Hong Kong might operate, arguing that it should be designed to achieve four key aims: effectiveness, accountability, transparency and participation.
     In this exercise we are purposefully not constrained by concerns of what is politically likely or feasible; instead, we aim to map out an institutional model to which, we argue, Hong Kong should aspire if the 'one country, two systems' model of constitutional pluralism and accommodation that underpins the relationship with China is to sustain in the security context. However, this is not to suggest that we assume a benign or governance-oriented disposition on the part of Beijing to institutions within which a national security law might operate, we recognize that, to a government so inclined, 'strong' institutions might mean institutions that bolster its power and approach to security. As clearly outlined by Hualing Fu in this collection, China's approach to national security is one in which many of the fundamental elements of politicisation, resistance, dissent, and protest that attempt to discipline state security power in other contexts are, themselves, susceptible to being seen as security risks that require suppression. In other words, we know that institutions have capacity to compound oppressive and repressive regimes. They do not, in and of themselves, guarantee or even provide forms of transparency, accountability, reflection and participation that we will argue are the hallmark of the kinds of institutions that might provide resilience to the rule of law of Hong Kong, or, indeed, elsewhere. Nor do they 'have minds of their own.' Instead, institutions (just like laws and all other elements of governance) are deeply dependent on political commitment to their effective deployment towards the goal of maintaining security while respecting (and strengthening) the rule of law. We are acutely aware that such commitment cannot be assumed in the context of the China - Hong Kong relationship...

Johannes Chan on Maintaining Institutional Strength: The Court, the Act of State and the Rule of Law (new book chapter)

"Maintaining Institutional Strength: The Court, the Act of State and the Rule of Law"
Johannes Chan
in Cora Chan & Fiona de Londras (eds), China's National Security: Endangering Hong Kong's Rule of Law? (Hart Publishing, March 2020),
Chapter 14, pp. 251-274
Introduction: Protection of national security and respect for personal liberty and the rule of law are not always on speaking terms. In the Hong Kong context, the conflicts between them are exacerbated by the diametrically opposing social and political values between Hong Kong and China. While an enlightened legislature and vibrant civil society are important in maintaining balance between rights and security in devising the legislative framework and monitoring its implementation, the courts' role is crucial for they are the ultimate safeguard for human rights and the rule of law in the enforcement of national security legislation. This role of particular importance in the sensitive area of national security which, in the Hong Kong context, refers to the security interest of the sovereign. The Hong Kong courts have to balance legitimate national interests and overzealous intervention by the Sovereign on the one hand and the integrity of the common law system and fundamentally liberty on the other. This role may be seriously hampered by the vague concept of act of state under the Basic Law which restricts the jurisdictions of the courts. Unfortunately, the concept of act of state is equally elusive under the common law. The problem is further exacerbated by the power of final interpretation of the Basic Law being vested in a political organ of mainland China, the inherently secret nature of national security, and the weak adherence to procedural and evidential safeguards in the mainland legal system. This chapter will address the jurisdiction limits on the courts in handling national security matters, arguing for a narrow doctrine of act of state, fine-tuning the special advocate procedure and strengthening the independence of the judiciary and the prosecuting authority.

Yash Ghai and Jill Cottrell on Security, Economy, Politics: The Chinese Agenda (new book chapter)

"Conclusion: Security, Economy, Politics: The Chinese Agenda"
Yash Ghai and Jill Cottrell Ghai
Chapter 17, pp 307-332
Introduction: The story of Article 23 of the Basic Law governing, in part, the relationship between China and Hong Kong, is largely a reflection of the changes in China's perception of its standing at home and abroad. At first China accepted the Basic Law as governing its relationship with Hong Kong and largely adhered to the commitment to ensure Hong Kong's autonomy for 50 years. The Chinese authorities had been greatly disturbed by the impact of the student rebellion in Tiananmen Square, and put it down with great violence including considerable loss of life. Seeing Hong Kong people's strong condemnation of the crackdown, China worried that Hong Kong might become a base for subversion, and hence strengthened the wording of Article 23 of the Basic Law with an aim to desist foreign interventions. The situation is now somewhat different. China, on the whole, welcomes intimate relations with leaders of foreign states and enjoys greater international standing than it did in the 1990s. It also seems less inclined to treat itself as bound by the Joint Declaration and the guarantee of Hong Kong autonomy, and as other chapters in this collection have shown, seems quite wiling to intervene in Hong Kong affairs, including through interpretations of the Basic Law.
     In this concluding contribution to the collection, we discuss the impact of China's economic and global policies on the development of close relationships with foreign states, in spite of the scepticism of citizens in those states as well as in Hong Kong.  In particular, we will argue that China's global economic and investment approach - and especially the Belt and Road Initiative (BRI) - is strengthening its relative international position and as a result, that the people of Hong Kong may find themselves less able to call on international solidarity to ensure that China respects and gives effect to Hong Kong's autonomy, with potential negative implications for the Rule of Law.  The discussion in this chapter reveals that China is coherent in its domestic and global policies through which it aims to extend control in political, security and economic terms (echoing the Chines regime's priority on advancing 'sovereignty, security, and development interests').  China's treatment of Hong Kong therefore makes for interesting comparisons with, and shed lights on, China's activities in the international political, security and economic order...
        

Thursday, February 27, 2020

Maisie Ooi on Rethinking the Characterisation of Issues Relating to Securities (J of Private Int'l L)

"Rethinking the characterisation of issues relating to securities"
Published online on 16 Dec 2019
Abstract: This article contends that there is a pressing need to rethink the characterisation of issues relating to securities, both complex and plain vanilla. It will demonstrate that the less than coherent choice-of-law process that exists for securities today is a consequence of courts utilising characterisation categories and rules that had not been designed with securities in mind and applying them in disregard of the new dimensions that securities and their transactions bring to characterisation. These have resulted in rules that do not provide certainty and predictability to participants in the securities and financial markets.
     The thesis that this article seeks to make is that a new characterisation category is required that is specific to securities which will encompass both directly held and intermediated securities (possibly also crypto-securities), and address issues of property, contract and corporations together. This will have its own choice-of-law rules which will be manifestations of the lex creationis, the law that created the relevant res or thing that is the subject-matter of the dispute. The convergence of issues traditionally dealt with by separate categories and rules will simplify and make for more coherent choice-of-law for securities.

Wednesday, February 26, 2020

Richard Cullen on Woolf Wisdom (Social & Legal Studies Blog)

"Woolf Wisdom"
Richard Cullen
Hong Kong’s Basic Law is a law of the National People’s Congress (NPC) of the People’s Republic of China (PRC). It was passed by the NPC in 1990 under the authority conferred on the NPC by Article 31 of the PRC Constitution of 1982. The Basic Law provides the fundamental, regional legal foundations for governing the Hong Kong Special Administrative Region (HKSAR) within the PRC under the One Country Two Systems (OCTS) formula.
     As I write, there is some suggestion that the NPC Standing Committee (NPCSC) may issue an Interpretation under Article 158 of the Basic Law to stipulate, explicitly, who may determine the compatibility of laws and regulations with the Basic Law. It is unclear if this will happen or how sweeping any such stipulation may be, if delivered. We know, based on the wording of Article 158 and the decision of Hong Kong’s Court of Final Appeal (CFA) in Lau’s case, in 1999, that the NPCSC enjoys a plenary power to issue interpretations of all components of the Basic Law on its own initiative at any time. All such interpretations are binding in the HKSAR. These Beijing moves arise from the overturning, by a Hong Kong court, of a regulation banning the wearing of masks at public demonstrations in the HKSAR... Click here to read the full text.