Saturday, June 27, 2020

HKU Celebrates (Another) Victory in the HSF Competition Law Moot 2020

Congratulations to the HKU Law team, consisting of Jason Louie (LLB IV), Adrian Mak (PCLL), Clara Wong (PCLL), and Alex Yeung (PCLL), for winning the Herbert Smith Freehills Competition Law Moot 2020 hosted by King's College London! This is the third time HKU has won the championship in the Moot since its inauguration in 2014, and the first time that the oral rounds were held virtually via Microsoft Teams. The team was coached by Associate Professor Thomas Cheng, Assistant Professor Kelvin Kwok, and alumnus Allison Wong. We are particularly grateful to the practice moot judges, most of whom are mooting alumni representing HKU in past competitions, for their generous time and support.

Thursday, June 25, 2020

Amanda Whitfort et al on Wildlife Forensic Science in Hong Kong (Wires Forensic Science)

"Wildlife forensic science in Hong Kong"
Published in June 2020
Abstract: In the past decade, Hong Kong has seen an increase in volume and diversity of endangered wildlife imported through its borders. Recent amendments to legislation concerning wildlife crimes in Hong Kong allow for increased sentencing and prosecution of the crimes. This calls for an increased forensic capacity to aid enforcement efforts. Wildlife forensic science in Hong Kong is generally performed ad hoc via a confidential tender‐application process. Additionally, minimal communication between forensic scientists, the prosecution and the judiciary on the use and production of wildlife forensic analyses has compounded the problem of wildlife crimes not being addressed as “serious” crimes. Improving communication and collaboration between relevant stakeholders, including the development of a wildlife forensic reference database, shared forensic practices, and shared information concerning expertise and analyses available within Hong Kong, would provide benefits to wildlife crime investigations. This article addresses some of these concerns in more detail and provides suggestions for improvements to the overall wildlife forensic capacity in Hong Kong. Increasing Hong Kong's capacity for wildlife forensic science will not only facilitate law enforcement efforts but also help to change Hong Kong's status as a regional hub for wildlife trade to one for excellence in wildlife crime deterrence.

Thursday, June 18, 2020

Douglas Arner et al on the Evolution and Future of Data-Driven Finance in the EU (Common Market Law Review)

"The Evolution and Future of Data-Driven Finance in the EU"
Zetzsche Dirk, Douglas Arner, Ross Buckley, Rolf H. Weber
Common Market Law Review, Issue 57, pp. 331-360
published in 2020
Abstract: Europe’s path to digitization and datafication in finance rests on four pillars: (1) extensive reporting requirements imposed after the global financial crisis to control systemic risk and change financial sector behaviour; (2) strict data protection rules reflecting European concerns about dominant actors in the data and technology industries; (3) the facilitation of open banking to enhance competition in banking and payments; and (4) systems for digital identification for individuals and legal entities designed to further the Single Market and enhance financial integrity and transparency. The article analyses these pillars and suggests that - together - they are triggering a transition to data-driven finance and will underpin the future of digital financial services in the EU. The pillars bolster an emerging ecosystem which aims to promote a balance among a range of sometimes conflicting objectives, including systemic risk, data security and privacy, efficiency, customer protection, and market integrity. As well as supporting digital financial transformation in Europe, the EU experiences provide important insights for other societies in developing regulatory approaches to the intersection of data, finance and technology.

Tuesday, June 16, 2020

Eric Ip & Daisy Cheung on Global Mental Health Security—Time for Action (JAMA Health Forum)

Published in June 2020
Global health security has been concerned predominantly with organizing transnational collective action to prevent the risks of bioterrorism and infectious disease outbreaks, such as the Ebola crisis of 2014-2016.1 One confounding omission in global health security has been mental health. The Global Health Security Agenda (GHSA), currently a partnership of more than 60 sovereign states plus the World Health Organization (WHO), other international institutions, nongovernmental organizations, and private companies, is committed to “a world safe and secure from infectious disease threats.” Of its 8 Action Packages, from antimicrobial resistance to biosecurity to zoonotic disease, none pertains directly to mental health. The WHO’s Global Preparedness Monitoring Board, which gauges global preparedness not just for outbreaks but also health emergencies, makes no meaningful reference to mental health in its first annual report, released in September 2019.2 None of the 6 indicators on the Global Health Security index, developed by the Johns Hopkins Center for Health Security, the Nuclear Threat Initiative, and The Economist Intelligence Unit, even mentions mental health... Click here to read the full article.

Saturday, June 13, 2020

New Issues - HKU Law's SSRN Legal Studies Research Paper Series (May - June 2020)


Vol. 10, No. 7: June 1, 2020

SIMON N. M. YOUNG, EDITOR

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

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

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

Weixia Gu, University of Hong Kong - Faculty of Law

Weixia Gu, University of Hong Kong - Faculty of Law

Holning Lau, University of North Carolina School of Law
Kelley Loper, The University of Hong Kong - Faculty of Law, University of California, Berkeley - Berkeley Center on Comparative Equality & Anti-Discrimination Law

Vol. 10, No. 6: May 1 , 2020
Table of Contents

David S. Law, The University of Hong Kong - Faculty of Law, University of California, Irvine School of Law
Ryan Whalen, The University of Hong Kong - Faculty of Law

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
Julia Walker, Thomson Reuters - Refinitiv (formally Thomson Reuters)
Ross P. Buckley, University of New South Wales (UNSW) - Faculty of Law
Andrew M. Dahdal, Qatar University - College of Law
Dirk A. Zetzsche, Universite du Luxembourg - Faculty of Law, Economics and Finance, Heinrich Heine University Dusseldorf - Center for Business & Corporate Law (CBC)

Giuliano G. Castellano, The University of Hong Kong, Faculty of Law
Andrea Tosato, University of Nottingham, School of Law, University of Pennsylvania Law School

Thursday, June 11, 2020

"On Street Protests and Human Rights" (Special Issue of the Asia-Pacific Journal on Human Rights and the Law)

Editors-in-Chief: Simon NM Young and Kelley Loper
Publisher: Brill, Leiden

Table of Contents

As 2019 came to an end, many labelled it ‘the year of street protest’. One estimate counted 71,790 protest events around the world in 2019, compared to 35,707 in 2018 and 23,990 in 2017. Rachman could see no ‘convincing global explanation’ for the 2019 protests, but they were obviously ‘connected’ in terms of ‘inspiring emulation’ and ‘shared tactics’. The bbc identified several common themes: inequality, corruption, political freedom, and climate change. Wright noted that ‘virtually all protests worldwide quickly escalated, and began issuing ultimatums for their governments to embrace sweeping changes – or to move aside’. Social media has been a ‘powerful organising tool everywhere’. It was assumed protests would continue unabated into 2020, but then the coronavirus pandemic struck. With global lockdowns and other social distancing measures, the first four months of 2020 have seen a substantial decrease in street protests worldwide. Governmental responses to prevent the spread of Covid-19 have severely restricted public gatherings and assemblies, not to mention other rights and freedoms. For example, in Hong Kong, gatherings of more than four persons in a public place were criminalised on 29 March 2020, punishable by up to 6 months imprisonment or a fine of HK$25,000. While these extraordinary measures are aimed at flattening the curve of new infections, there are growing concerns some governments are using these emergency powers for repressive ends, a situation that may possibly continue even after the pandemic has been contained... Click here to read the full Introduction.

To Facilitate and Protect: State Obligations and the Right of Peaceful Assembly in International Human Rights Law
By: Michael Hamilton
Pages: 5–34

The Democracy Dichotomy: Framing the Hong Kong 2019 Street Protests as Legitimacy Counterclaims against an Incoherent Constitutional Morality
By: James Greenwood-Reeves
Pages: 35–62

‘It was you who taught me that peaceful marches did not work’, Uncivil Disobedience and the Hong Kong Protests: Justification, Duty and Resistance
By: Jane Richards
Pages: 63–97

Implications of Easter Island Protests – Breach of Rapa Nui Rights by Chile in the Context of National, American and Universal Legal Systems
By: Joanna Siekiera
Pages: 98–120

The Law and Policy of Police and Prosecutorial Control of Detention in China
By: Kuibin Zhu and David M Siegel
Pages: 121–137

Wednesday, June 10, 2020

Johannes Chan on Whether the NPC Decision to Enact a National Security Law for Hong Kong Contravenes the Basic Law? (Verfassungsblog)

Does the Decision of the National People’s Congress on Enacting a National Security Law for Hong Kong Contravene the Basic Law?
Verfassungsblog
1 June 2020

On 28 May 2020, the National People’s Congress (NPC) resolved to authorise its Standing Committee (NPCSC) to enact a piece of national security law for Hong Kong (Decision). Would this Decision be in contravention of the Basic Law? Some people may say that this is a stupid question. Maybe it is. But if the Central Government still claims to abide by the rule of law, and if the NPC is not above the law, then whether the Decision would contravene the Basic Law is a serious question about the rule of law.
     As a matter of law, there are at least five reasons why one could query the legality of the Decision.

Enacting Law 'on Its Own'
First, Article 23 of the Basic Law clearly stipulates that Hong Kong shall enact laws “on its own” to prohibit any act falling within the ambit of national security as defined in that article. The phrase “on its own” is of crucial importance. As Hong Kong retains a common law system which embodies a set of values of personal liberties and freedoms or the rule of law which are not shared by the socialist civil law system on the Mainland, and given the political sensitivity of national security law which carries criminal sanctions and threatens personal liberty, it was agreed in the Basic Law that such laws shall be enacted by the Hong Kong legislature in accordance with the distinct common law traditions, values and procedures. The reason to have the phrase “on its own” is to protect the integrity of the common law system and freedoms of the people of Hong Kong from the threat of arbitrary political prosecution. At the time of the drafting of the Basic Law, there were widespread concerns about the prevalence of counter-revolutionary crimes on the Mainland. The famous trial of the human rights activist Wei Jingsheng, who was convicted and imprisoned for 14 years for publishing an essay “The Fifth Modernisation” on the Democracy Wall in Beijing in 1978, was fresh in the minds of many people in Hong Kong. The phrase “on its own” was inserted to allay the worries of the people of Hong Kong. 
     Thus, the overall design of the Basic Law is to give Hong Kong the autonomy to enact its own law. The Central Government will not enact law for Hong Kong, nor will national law of the Mainland be extended to Hong Kong. The Central Government then asked, what about national law dealing with foreign affairs, defence and matters outside the autonomy of the HKSAR? Article 18 was drafted to allow national laws to be extended to the HKSAR, but such laws are confined to foreign affairs, defence and matters outside the autonomy of the HKSAR. This formulation still gave rise to the worry about national security law, which may fall within the scope of foreign affairs and defence. Thus, Article 23 was drafted to craft out this area of law to be enacted by Hong Kong “on its own”. The suggestion that the Central Government has a parallel power to make national law for Hong Kong is clearly inconsistent with the intention and drafting history of Article 23.
     Some people argued that Article 23 only imposes an obligation on the HKSAR to enact national security law; it does not exclude the NPC or the NPCSC from making national security law for Hong Kong. Nor does the fact that the NPCSC making national security law for Hong Kong exempt Hong Kong from its responsibility to enact national security law under Article 23. This argument does not really address the question. The whole point of inserting the phrase “on its own” is to ensure that the Central Government will not impose its national security law on Hong Kong. This phrase would be absolutely meaningless and its protection would be illusory if it means that the Central Government could at the same time make national security law for Hong Kong. If the Central Government wants to make national security law for Hong Kong, which it does have the authority but for the Basic Law, it has to first amend the Basic Law and pay the political price for doing so.

Specific Provision Prevails over General Provision
Secondly, a general principle of statutory interpretation is that a specific provision would prevail over a general provision. Article 18 is a general provision which allows the NPCSC to extend national laws to Hong Kong via Annex 3, whereas Article 23 is a specific provision dealing with national security. As a matter of interpretation, the scope of Article 18 would not include the specific matters set out in Article 23, which are left to Hong Kong to enact laws on its own.
    Further, Article 18 only applies to national laws. Some people argue that the term “national laws” is used in contradistinction to “local laws”, and simply means any laws enacted by the NPC or the NPCSC. This interpretation may be valid in the general circumstances, but it is clearly inappropriate in the context of Article 18. The laws referred to in Article 18 have to be in the areas of foreign affairs, defence and matters outside the autonomy of the HKSAR. These are not matters that would fall into the jurisdiction of any local authorities, provinces or autonomous regions, but matters for the NPC and NPCSC. Thus, national laws could not be defined in terms of the organisation making the law, which would make the term “national laws” meaningless, but have to mean territorial coverage of the law. The point is that these laws are made for the whole country and extended to Hong Kong. It reflects the concern that the Central Government should not make specific laws for Hong Kong. Any national laws that are to be applied to Hong Kong should be those that apply generally to the country. This is reinforced by the fact that the power to make law for Hong Kong is vested in its Legislative Council; that Article 23 confers on Hong Kong the power to make laws for those matters specifically defined therein; and that Article 18 confines the types of national laws that could be extended to Hong Kong. When these provisions are read together, the intention is obvious. The Central Government will only extend national laws to Hong Kong provided that these laws fall within the areas of foreign affairs, defence and matters outside the autonomy of Hong Kong, excluding those covered in Article 23, and would not make laws for Hong Kong. The obvious purpose is to protect the integrity of the common law system in Hong Kong, which is completely different from the system in the Mainland.
     Some people argued that the Garrison Law is a piece of law made by the Central Government for Hong Kong. This is not accurate, as the target of the Garrison Law is the People’s Liberation Army stationed in Hong Kong. It defines the duties and responsibilities of the Garrison, and does not concern or affect the rights of ordinary citizens in Hong Kong. In contrast, the national security law will infringe the rights and liberty of the people of Hong Kong which are protected by the Basic Law.

PRC Constitution Does Not Empower the NPC to Ignore the Basic Law
The above analysis shows that there is no power on the part of the NPC/NPCSC to make national security law for Hong Kong under the Basic Law, which is binding on the NPC. The Decision refers to various sources to purportedly justify this power.
     Article 31 of the PRC Constitution authorizes the NPC to set up a Special Administrative Region. It is on the basis of this article that the Basic Law was enacted. Article 11 of the Basic Law expressly stated that the systems and policies practised in the HKSAR, including the system for safeguarding the fundamental rights and freedoms of its residents, the legislative and judicial systems, shall be based on the provisions of the Basic Law. Article 11 thus reinforces the proposition that the power of the NPC to deal with Hong Kong is indeed confined by the Basic Law by virtue of Article 31 of the PRC Constitution and hence its Decision cannot contravene the Basic Law. Article 62(2) of the PRC Constitution said that the NPC has the power of supervision of the constitution. Article 62(14) provides that the NPC has the power to decide on the establishment and the systems of the special administrative region. This has been done through the Basic Law. Article 62(16) states that the NPC shall exercise other functions of the highest national organs. None of these general provisions authorises the NPC to act other than in accordance with the Basic Law.
     As pointed out above, this does not mean that the NPC has no power to address national security issues. This can be done, but this can only be done by amending the Basic Law first, such as repealing the phrase “on its own” in Article 23 and expressly conferring the power on the NPCSC to make law for Hong Kong. This would require a formal amendment of the Basic Law, and there will be political costs. There are proper procedures for amending the Basic Law, and this cannot be done by a decision or resolution of the NPC. Such amendments would have a profound impact on the design of One Country, Two Systems, but if the Central Government is to amend the Basic Law in a way that would change or abandon One Country, Two Systems, there is at least nothing in law that could prevent it from doing so. What it cannot do is to legislate for Hong Kong as if the Basic Law does not exist.

The Role of the Court in Protecting Human Rights
Fourthly, it has been pointed out that the scope of the proposed national security law is not exactly the same as that under Article 23. Yet this only gives rise to greater concerns. The Decision authorises the NPCSC to enact law to prohibit “acts of secession, subversion, organizing and implementing terrorist activities that would seriously endanger national security and interference with Hong Kong affairs by collaboration with foreign bodies outside Hong Kong and the Mainland.” The scope is exceeding broad, and may cover finance, economy, communications, and even connection and collaboration between religious organizations and NGOs with foreign religious bodies and NGOs. It may even cover normal academic collaboration between local universities and foreign bodies. 
     Even more worrying is the diminishing role of the courts. Under Article 18 of the Basic Law, any laws which are extended to Hong Kong have to be related to foreign affairs, defence or matters outside the limits of the autonomy of the HKSAR. Under Article 19, these matters are outside the jurisdiction of the courts in Hong Kong. Thus, unless there is express authorisation in the national security law, these matters are logically outside the jurisdiction of the Hong Kong courts. Even if the courts were conferred jurisdiction over the national security law, should the courts interpret the law according to Chinese law or the common law principles of interpretation? The Mainland approach to statutory interpretation is dominated by political consideration and less restrained by the language of the law. This is best illustrated by how the NPCSC is able to extend a requirement to take an oath of office upon successful election under Article 104 of the Basic Law to become an eligibility requirement of allegiance for candidacy to run for the election, and how the China Liaison Office has argued that it is not a department of the Central Government for the purpose of Article 22 of the Basic Law and hence it is free to interfere with internal affairs of the HKSAR under its alleged authority to supervise the implementation of the Basic Law. I have full confidence in our judiciary that they would adhere to the common law principles in interpreting the national security law, but this would give rise to another problem. What is going to happen if the Hong Kong courts, applying the ordinary canons of statutory construction, substantially restrict the scope of an offence under the national security law, or declare a provision in the national security law null and void for contravening the human rights protection in the Basic Law? Would the NPCSC give the Hong Kong courts a round of applause, or would it be tempted to “correct” the Hong Kong judiciary for failing to properly understand the national security law? In this regard, it should be noted that the NPCSC has the power to give an interpretation of the national security law, being a piece of national law, under Art 42 of the Legislation Law. While such interpretation is not an interpretation of the Basic Law, such interpretation has the same status as the national law itself under Art 47 of the Legislation Law, and is hence binding on the Hong Kong courts. How much freedom would the Hong Kong courts enjoy in interpreting the national security law? 
     This gives rise to another issue: would the national security law be subject to the human rights protection under the ICCPR as applied to Hong Kong or the human rights provisions in the Basic Law? Under Article 78 of the Legislation Law, when there is a conflict between national law and local law, national law prevails. Therefore, the national security law would prevail over the Bill of Rights, which is local law of the Hong Kong. The ICCPR as applied to Hong Kong receives a higher status, not by virtue of the Bill of Rights, but by virtue of Article 39 of the Basic Law. However, the Basic Law itself is also a piece of national law. If two provisions of national law are in conflict, the specific provision will prevail over the general provision, and the latter will prevail over the earlier provision. Article 39, as well as other human rights provisions in the Basic Law, may be regarded as a general provision, and if the national security law, which is a specific law and latter in time, is inconsistent with the Basic Law, the national security law will prevail under Articles 83 and 85 of the Legislation Law. Thus, there seems to be strong arguments that the national security law is not subject to the ICCPR as applied to Hong Kong or other human rights provisions of the Basic Law.
     It has also been suggested that there should be a special tribunal to handle cases about national security, and such cases should only be tried by judges who have no foreign nationality and no right of abode in a foreign country. This suggestion would threaten the rule of law and judicial independence. National security law could cover activities that may also constitute ordinary crimes, such as arson or possession of offensive weapon. If a defendant is charged with the ordinary crimes, he will be tried by the ordinary courts. If he is charged for the same activities under national security law, he will be tried by a special tribunal. This would give rise to legitimate doubt of fairness and impartiality. Historically, such special tribunals, such as the Star Chambers in England in the 15th to 17th century or the special counter-revolutionary tribunal in Russia in the early 20th century, earned their reputation as a political tribunal for social and political oppression through arbitrary use and abuse of power. 
     A nationality requirement for the appointment of judges would be inconsistent with the Basic Law. Article 92 provides that judges and other members of the Hong Kong judiciary shall be “chosen on the basis of their judicial and professional qualities and may be recruited from other common law jurisdictions”. Indeed, apart from the Chief Justice and the Chief Judge of the High Court, it was a deliberate decision not to impose any nationality requirement on other judges. Article 82 of the Basic Law expressly permits the Court of Final Appeal to invite judges from other common law jurisdictions to sit on the Court of Final Appeal. Under the common law, the judges take a judicial oath to administer the law fairly and impartially. This duty does not depend on his nationality. If there is any allegation of bias or conflicts of interests, this can already be handled under the existing system. If a nationality requirement is to require a judge to approach a case with patriotic principles, this will be an affront to the principle of judicial independence.

Establishment of a National Security Unit in Hong Kong
Fifthly, the Decision envisages that the National Security organization may, if necessary, set up a unit in Hong Kong to protect national security in accordance with law. It is unclear what this unit would be, but it is unlikely to be a “department of the Central Government” under Article 22 of the Basic Law, but the representative of the Central Government that is not bound by Article 22. What is the scope of its authority? What power would it have? To whom is it accountable? Could it exercise the power of investigation, arrest and detention, or interrogation? Under Article 42 of the PRC National Security Law, national security organization shall have the power to investigate, detain, interrogate, arrest, and other power as prescribed by law. In short, it enjoys the power of law enforcement, and how could the operation of a parallel police force in Hong Kong be consistent with the Basic Law?

The Tragedy of One Country, Two Systems
The past few weeks have witnessed a dramatic constriction of public space in Hong Kong. The Liaison Office of the Central People’s Government in the HKSAR claimed that it is not a “department” of the Central Government within the meaning of Article 22 of the Basic Law, and that it has the power to supervise the implementation of the Basic Law in Hong Kong. The Education Bureau put pressure on the Hong Kong Examinations and Assessment Authority to set aside an examination question of a public examination (HKDSE) on the ground that the question is biased and inappropriate. The question asked the students to comment whether Japan has done more good than evil to China between 1900 and 1945. Then the Communications Authority found substantiated the complaints against a political satire by the Radio and Television Hong Kong (RTHK) on the ground that the popular satirical programme has “denigrated” the Police Force by making fun of the police. And then the NPC decided to authorise the NPCSC to enact national security law for Hong Kong. How much of “a high degree of autonomy” is still left with Hong Kong?
     The only difference between the two systems in Hong Kong and the Mainland now is the legal system. In order to protect the common law system in Hong Kong, the design of the Basic Law is that Hong Kong will enact its own law, that Mainland law will not apply and the Central Government would not make law for Hong Kong, and that Hong Kong law will be enforced by the Hong Kong law enforcement agencies, and administered by the Hong Kong judiciary. These are the pillars that protect the common law system, and all these pillars are now shattered. The Central Government is going to make law for Hong Kong; national security organisation is allowed to carry out law enforcement in Hong Kong, and it is unclear whether the national security law will be administered by the Hong Kong courts, and even if it is so, it is unclear how much autonomy the Hong Kong courts would have over the interpretation of the national security law.
     Some people said that if Article 23 legislation had been introduced in 2003, we would not have been in the position where we are now. There are too many assumptions in such an argument. The recent protests are a result of many different causes. About a decade ago, the former Premier Wen Jiabao reminded the HKSAR Government to address the “deep-rooted causes and conflicts” in Hong Kong, but successive governments only paid lip service to this advice. Instead, the former Government became a major source of conflicts and was a key player leading to sharper polarisation in society, whereas the present Government is too arrogant and missed many opportunities to resolve the social conflicts last year. The situation was further complicated by the Sino-American trade conflicts. Even if Article 23 law were enacted in 2003, with the poor performance of the last two governments of the HKSAR, the social conflicts would probably still be inevitable. To many people in Hong Kong, the current problem is largely one of public disorder and has little to do with national security.
     To the Central Government, there seems to be a conspiracy theory that the protests were part of a conspiracy of foreign powers against China. Instead of making the successive Chief Executives accountable for their poor governance, the Central Government is prepared to adopt radical steps that could destroy One Country, Two Systems. How far the Decision was a result of those who have the ears of the Central Government exaggerating the situation in Hong Kong is something only history could tell. Would the current problem in Hong Kong be resolved by enacting the national security law? There will be prosecution, suppression and censorship. The national security law may have a chilling effect so that people will no longer criticise their authority. There will no longer be any civil society, and independent and critical thinking would become non-existent. On one hand, the Government criticised the critics for demonising the national security law when they do not even know the content of the law. On the other hand, senior government ministers and many patriots were mobilised to pledge their support for the national security law without knowing their content! Hong Kong will become nothing but a compliant society. Political correctness will become the major yardstick in determining right and wrong. Public space will continue to shrink; a high degree of autonomy will exist in name only. Some people said that the national security law will only target at a small number of criminals. History tells us that this is naïve. Once introduced, instead of being liberalised, such law will only become increasingly oppressive. “Four legs good, two legs bad”. Before long, some four legs would be found bad as well!

30 May 2020

(The original of this article in Chinese was published in Ming Pao, 25 May 2020. The above is the revised version in English.)

Chinese version:

人大決議
是否符合《基本法》?

陳文敏
香港大學法律學院公法講座教授
人大決議授權人大常委會為香港制定《港區維護國家安全法》,這決議是否符合《基本法》?或許有人會,這個問題實在太愚蠢了!可能,但如果國家仍然堅持法治,如果人大仍然要守法,不能凌駕法律,那人大決議亦不能違反《基本法》,這便是一個嚴肅的法治的問題。
     從法理而言,最少有五個理由指出人大的決議並不符合《基本法》。


自行立法
第一,《基本法》第23條明確指出,就該條所指的及國家安全的法例由香港「自行立法」。「自行立法」的意思明顯是由香港特區根據普通法的傳統和立法程序進行立法,理由是香港和地有完全不同的法制、價和法治觀念,當及這類高度政治性和敏感性,並觸及人身自由和刑事責任的法律時,《基本法》的原意是讓特區自行制定這些法律。及國家安全的法律從來都是非常敏感的,「自行立法」的目的正是要保障香港普通法的完整性。基本法》的設計是國內的法律不適用於香港,中央政府亦不會為香港立法,香港的法律由香港的立法會自行訂立。在草擬的過程中,中央問,那涉及國防外交的法律又如何?於是便有第18條,讓中央可以將一些全國性法律透過附件三適用於香港,但這些法律只局限於涉及國防、外交及香港自治範圍外的法律。然而,這個規範仍然過於籠統,仍然可包括涉及國家安全這些極具政治色彩的法律。在草擬這一條法律的時候,香港人特別關注國對國家安全那種空泛的觀念,不少人對當年的反革命罪記憶猶新,魏京生便是因為發表求民主的言論已被判反革命罪成,並判處14年監禁。第23條對「自行立法」的規定便是在這樣的背景下生,將國家安全的立法由特區根據普通法的原則訂立,以釋除港人的憂慮。
     有人,人大常委會立法並不等於香港不需要再為《基本法》第23條立法,但如果中央可以同時立法,「自行立法」還有什麼意義?這種論説是漠視當日為何要有「自行立法」這規定的立法原意。 香港仍然有責任為第23條立法之説,但並不足以支持中央可以為香港立法。如果中央認為香港沒有履行其憲法責任而要收回這憲法性的授權,便得先修改第23條,這才是體現法治的要求。

具體條文優於普遍性條文
第二,有人自行立法和將全國性法律在香港實施並無衝突,但這是明顯違反一般的立法解釋原則。第18條是一條普遍性法律,容許人大常委會透過附件三將一些全國性法律適用於香港;第23條則是一條具體的法律,指明在第23條範圍的法律由香港自行立法。普遍解釋法律的原則是具體的條文優於普遍性的條文。於是,第18條這種普遍性的權力,便不應包含第23條具體所指的範圍的法律條文,否則第23條便變為多此一舉。
      再者,第18條附件三只適用於全國性法律,有人全國性法律意指由人大或人大常委會通過的所有法律,有別於由地區省市通過的法律。這個解釋在一般情況下可能合適,但在第18條便明顯不適用。第18條規定附件三的全國性法律必須及國防,外交和其他自治範圍外的法律,這類法律根本不是省市地區有權制定的,故此全國性法律不能取決於由什麼機構作出,而是指法律的性質是適用於全國。《基本法》賦予香港立法機關立法權, 23條規定在該條範圍的法律由香港自行立法,第18條則規定在國防、外交及香港自治範圍以外的法律可以由中央透過附件三在香港適用,這幾條綜合起來的目的,明顯是中央在國防、外交及香港自治範圍以外的事情才會為香港立法,而不會在這些範圍以外為香港立法;即使適用於香港的法律,也須要是全國性適用的法律,目的也是為保障和維護香港與地有截然不同的法律制度,中央政府不會為香港立法。
     有人,《駐軍法》不是為香港特別制定的法律的先例?《駐軍法》的對象是在香港駐守的解放軍,這條例規範解放軍在香港的責任,而不是一條應用於香港普遍市民的條例。人大常委會這次立法,卻是針對香港人的權利和自由,而這正正是《基本法》所要保障的。

《中國憲法》沒有賦予人大可以不理會《基本法》的規定的權力
第三,人大決議指其法律基礎源於《中國憲法》第31條,第62條第21416項。第31條是設立特區的法律依據,《基本法》第11條便明確指出,特區的制度,對自由權利的保障,立法和司法制度等均以《基本法》為依據。這一條同樣適用於人大,人大的決定不能違反《基本法》的規定。《憲法》第62條第2項指人大有「監督憲法的實施的權力」,第14項指人大有「決定特別行政區的設立及其制度」的權力,第16項則指人大可行使「應當由最高國家權力機關行使的其他職權」。這幾條普遍性的條文,均沒有賦予人大可以不理會《基本法》的規定的權力。人大當然有權修改《基本法》,刪除第23條對「自行立法」的規定和賦予人大常委會為香港直接立法的權力,但這便涉及修改《基本法》,修改要跟從一定的程序,不能以人大來修改法律。
     上文經已指出,這並不是説中央不能為國家安全立法,而是説它必須先修改《基本法》,刪除第23條由香港自行立法的規定,並明確授權中央可以為香港立法。中央不會為香港制訂法律,影響香港人的基本權利和自由,這是一國兩制的基石,中央可以修改《基本法》,亦同時要負上政治代價。修改《基本法》亦須依從一定的程序,人大決議並不能修改《基本法》,人大亦不能漠視《基本法》為香港立法。

人權的保障和法院的角色
第四,有人指人大常委會的立法範圍並非完全與第23條重疊,但這更加令人擔憂。人大決議授權人大常委會的立法範圍包括「分裂國家、顛覆國家政權、組織實施恐怖活動等嚴重危害國家安全的行為以及外國和境外勢力干預香港特區事務的活動。」這些範圍相當空泛,影響及至金融、經濟和網絡通訊,更可以涵蓋宗教或非政府組織與外國宗教團體和非政府組織的聯和合作,甚至大學和外國團體的合作。國家安全和公民權利的界線可以變得很模糊,如果人大常委會通過的法律抵觸《基本法》對人權的保障的時候,這將如何處理?香港的法院是否可以宣布人大常委會的法律因為違反《基本法》對人權的保障而予以撤銷?
     更令人擔心的是法院的角色。根據第18條,附件三的法律必須及國防、外交和香港自治範圍以外的法律,而根據第19條,這些問題正是香港法院審核權的範圍以外,除非人大常委會的立法明確賦予香港法院審核權,否則香港法院可能根本沒有管轄權處理這些案件。
     即使香港法院有審核權,香港法院將如何演繹這條全國性法律?國草擬法律和演繹法律的方法和普通法的原則均大相逕庭,國對法律的演繹,基本上以政治考慮凌駕法律條文,從人大常委會將《基本法》就職宣誓的要求變為參選的資格,或中聯對第22地政府的部門的解釋,均可以看到地對解釋法律的取態。我對相信香港的法院不會採納地那一套來解釋或執行《港區維護國家安全法》,但這便出現一個問題:若香港法院的解釋並不符合人大常委會的意思,例如法院將相關的罪行的範圍縮窄以保障人權,或認為有些控罪違反《人權法案》或《基本法》對人權的保障時,人大常委會會拍手稱讚,還是橫加干預?在過去,中央政府已不只一次批評香港法院的判決,原訟法院就《緊急權力法》的判決便惹來中央政府嚴厲的批評。如果法院的判決有違人大常委會所認為的立法原意,人大常委會是否可以橫加干預?再者,作為一條全國性法律,人大常委會有解釋該法律的權力,雖然這解釋並非對《基本法》的解釋,但根據《立法法》第47條,這種解釋與《港區維護國家安全法》享有同等效力,故對香港法院同樣有約束力。於是,香港法院在解釋《港區維護國家安全法》時,恐怕不會有太大的空間。
     另一個問題是這部《港區維護國家安全法》是否受人權的約制?作為一部全國性法律,但根據《立法法》第79條,它的地位凌駡於地方法例如《香港人權法案條例》,故不受人權法的約束。《公民權利和政治權利國際公約》的凌駕地位來自《基本法》第39條,它和《基本法》內保障其他基本權利和自由的條款,同屬於《基本法》的一部分,而《基本法》本身也是全國性法律,若和《港區維護國家安全法》有衝突,根據《立法法》第8385條,將以後立者或較具體者為準,《港區維護國家安全法》為較後立的法律,亦是専注處理國家安全問題,故從這些原則考慮,若《港區維護國家安全法》與《基本法》內保障人權的條款或國際人權公約相扺觸的,便以較具體和較後立的《港區維護國家安全法》為準。
     此外,更有人提議國家安全法應交由一特別法庭處理,並由沒有外國居留權的中國國籍法官審理。違反國家安全法的行為也可能違反一般的刑法如緃火或藏有攻擊性武器等,若以刑法起訴則由一般法庭審理,若以國家安全法起訴則由另一特別法庭和特別法官審理,這會令人質疑特別法庭的公正性,歷史上這類法庭如15-17世紀英國的星星法庭  Star Chambers)或20世紀初在蘇俄的反革命法庭,均淪為打擊異已的政治工具。
     對法官作出國籍的要求更有違《基本法》,第92條便明確指出,特區的法官和其他司法人員,「應根據其本人的司法和專業才能選用,並可從其他普通法適用地區聘用」。除終審院院及高等法院的首席法官外,《基本法》特意沒有對其他法官作出國籍限制,而第82條更明文指出,終審法院可根據需要邀請其他普通法適用地區的法官參加審判。普通法的法官宣誓向法律效忠,法官的職責和公平並不取決於其國籍,若是徧頗或有利益衝突,現時已有機制處理。若國籍是相等於要求法官以愛國政治立場來審理案件,這便嚴重破壞司法獨立的原則。

在特區設立維護國家安全的國家機關
第五,人大決議更容許中央人民政府維護國家安全的有關機構,可以在特區設立機構,依法履行維護國家安全的相關職責。這是一個什麼機構?這個國家機關的在港機構,恐怕也不是第22條所指的中央政府的所屬部門,不受第22條的管制。這些國家機關有什麼權力?受到什麼監管?是否可以在香港行使調權?拘捕權?審問權?國的國家安全局有非常廣泛的權力,包括偵查、拘留、預審和執行逮捕的權力,行事亦沒有什麼透明度,容許國家機關在香港進行執法的活動,又如何符合《基本法》的規定?


一國兩制的哀歌
在短短幾星期,先後有中聯高調聲稱它們不是一個中央政府的部門,同時肩負監督《基本法》的實施的權力,然後教育局以政治理由向考評局施壓,取消中學文憑試史科的一條試題,繼而廣管局裁決「頭條新聞」違反廣播事務守則,跟着是中央政府決定為香港直接立法,這一連串的舉動,又怎不令人懷疑,香港還有多少高度自治可言?
     一國兩制中,法律制度是兩制的最大也是現今唯一的分別,《基本法》的設計是內地的法律不會適用於香港,內地也不會為香港立法,中央不會為香港立法,內地執法人員不在香港執法,香港的違法行為由香港的法院審理,這幾條維護一國兩制的支柱,都給這次人大的決議所粉碎,兩制的分別也變得愈來愈模糊了。
      有人認為,若果當日通過第23條立法,便不會弄致今天的局面,我恐怕這只是一廂情願的法。引致今天的局面有多種不同的原因,前總理家寶早年已囑咐特區要處理好香港的深層次矛盾,上任特區政府置之不理,反而到處挑起事端,加劇香港的部矛盾。現任政府則剛愎自用,漠視民意,多次錯過解決社會矛盾的契機,再加上外圍中美的貿易磨擦和政治角力,才會形成今天的局面。即使當年通過第23條立法,最近兩任特區政府處理香港問題的拙劣手法,現時這些矛盾和衝突恐怕還是無可避免。對不少香港人而言,香港目前的問題主要還是一個社會秩序和治安的問題,反映對特區政府的不滿,和國家安全沾不上關係。
     對中央而言,它總是相信這一切都是出於外國勢力的策劃和陰謀,要將問題提升至國家安全的層面,甚至不惜採取徹底破壞一國兩制的處理方法,而不是向歷任特區政府問責。中央的決定,有多少出於一些人的危言聳聽,推波助瀾,恐怕只能由史判斷。權力在於中央,人大常委會通過立法之後,問題便可以解決?隨之而來會是一連串的檢控、打壓和箝制,務求令香港變為一個不思考,不敢質疑權勢,唯唯諾諾的順民社會。中央政府心目中的一國兩制,恐怕只是一個國家兩種經濟制度,不要有什麼公民社會,更不要有甚麽獨立思考或核心價值,更干萬不能質疑權貴。
     有人説,國家安全法只是針對少數破壞國家安全的滋事分子,問題是由誰來決定那些人士屬於那少數滋事分子。在不少法治薄弱的國家,不少法律當初也只是為打擊少數犯罪分子,但跟着便是用來打政敵,繼而引伸至異見人士、維權律師、宗教領袖、傳媒、教育界和學者,然後是任何被視為對政權有威脅的人士。
經此一役,香港的公共空間只會越趨狹窄,事事講求政治正確 。史給我們的教訓是壓迫的手段只會越來越高壓,而不會越來越開明,高度自治只會是名存實亡,這是一國兩制的哀歌。

(原文刋登於《明報》,2020525日,此為修訂版)

Alice Lee on “Copyright Classroom” (new KE and T&L initiative)

HKU Law promotes creative and ethical use of copyright works in education with short videos
Led by HKU Faculty of Law Associate Dean (Academic Affairs) and Associate Professor Ms Alice Lee, a series of short videos titled “Copyright Classroom” is produced to promote creative and ethical use of copyright works in education. In the videos, HKU law alumnus and English Language enthusiast KOL “Uncle Siu” is the voice. A total of nine videos, tailor-made for the tertiary, secondary and primary education sectors, are disseminated through “The Copyright Classroom – HKU” channel as well as Ms Lee’s education website. 
      Copyright is meant to encourage creativity by conferring exclusive rights on authors and enabling copyright owners to make profits by distributing or licensing copyright works. Nevertheless, in reality, the copyright regime is too complex and technical for a layman to comprehend. “There are burning questions regarding copyright issues in education. For example would it be copyright infringement when teachers and students include copyright works like images or music into their presentations, teaching/learning materials or social media? How about busking or school performance in which parody or adaptation is involved? Or merchandise to be sold at Lunar New Year Fair? Would any exception be granted? We hope, through these videos, both the education sector and general public would have a better understanding of the copyright principles; and be able to identify copyright exceptions in teaching and learning, and know where to look at if relevant resources and materials are needed.” said Ms Lee, who has been teaching and researching copyright law for more than 20 years and was the recipient of the 2019 University Distinguished Teaching Award.
     The project is supported by the HKU Knowledge Exchange Funding and HKU Teaching Development Grant. To view the Copyright Classroom, please click here. 

Tuesday, June 9, 2020

Eric Ip & SF Lee on Preparing for the Coming Transnational Cancer Crisis Amid the COVID-19 Pandemic (Cancer Causes & Control)

"Preparing for the coming transnational cancer crisis amid the COVID-19 pandemic"
Cancer Causes & Control
Published in May 2020
Abstract: The continuing outbreak of the coronavirus disease 2019 (COVID-19) caused by the novel coronavirus SARS-CoV-2 has inflicted considerable burdens onto the health system of China, the world's most populous country. Remarkably, among spectrum of potential mitigation strategies, the Chinese government has implemented all-out lockdowns on large geographical areas, unprecedented in the modern era. This inevitably undermined the right to healthcare of many who now faced great difficulty in getting treatment, especially those with cancer or other life-threatening issues. We elaborate and discuss the medico-legal and human rights consideration triggered by the lockdowns, the unprecedented mass quarantine of Hubei province in China, and the suspension of normal healthcare services. We argue that the same challenge will now be faced by other countries, particularly the USA, Italy, Spain, and France, as the epicentres of COVID-19 has shifted to Europe and the Americas.
     It has been estimated that by 2020, China will have over 4.5 million cancer patients and in consequence some 3 million cancer deaths [1]. That number may surge in consequence of the 2019 coronavirus (COVID-19) outbreak, which has been declared a public health emergency of international concern and then a global pandemic by the WHO, as cancer patients have been found to suffer poorer outcomes from COVID-19 than those without cancer [2]. Alarmingly, Wuhan, the epicentre of the pandemic, has exhibited mass neglect of treatment of all other patients not infected with COVID-19, including those suffering from cancer. The shortage of medical care for these patients stems from the all-out campaign of the Chinese health authorities to contain COVID-19 with drastic lockdown measures at significant social and economic cost. The suspension of care occurs in spite of the mobilization of extra equipment and manpower to Hubei province and its capital Wuhan, and building of makeshift healthcare camps to monitor and care for the 67,794 (as at 15 March 2020) confirmed cases infected with coronavirus, and others suspected to have been infected [3].
     The problematic consequences of China’s COVID-19 strategy, which has been adopted to varying degrees by many countries, upon the broader healthcare system are beginning to emerge. Many hospitals in Hubei have been designated for and converted to the exclusive care of COVID-19 patients, with previous treatment plans for other patients being postponed or suspended. Additionally, due to fears of COVID-19 cross-infection, hospital wards have not been permitted to admit cancer patients and operating theatres have had to be closed. Chemotherapy has been suspended indefinitely. Clinical trials have been similarly affected: participants have been unable to return for follow-up; data collection are no longer timely; many protocols have been violated. Notwithstanding effective measures coping with the needs of cancer patients during the pandemic reportedly adopted by a hospital in Beijing, the nation’s capital [5], there is much evidence pointing to a systemic coming crisis in cancer treatment in the world’s most populous country, whose magnitude cannot be easily quantified.
     People in China with other diseases, even life-threatening ones, are struggling to even get diagnosed, let alone treated. The exclusive public health focus on COVID-19 at the expense of even special classes of patients implies that the health system in Hubei, if not elsewhere, is in all likelihood being strained to the breaking point in delivering the usual care while coping with the pandemic, and will remain so for quite some time. Delays in the delivery of oncological care could yield long-lasting, devastating effects at both individual and population levels. Lessons may be learned from the recent history of the Chinese special administrative region of Hong Kong. The former British dependency was one of the jurisdictions most heavily afflicted by the severe acute respiratory syndrome (SARS) outbreak of 2003, suffering almost 40% of the global death toll [5]. The Hong Kong Cancer Registry recorded a dip in crude cancer incidence to 20,763 during 2003 (the only year to break the uptrend) and a significant rebound the next year [6]. It may have been that the anxiety prevailing in the general public about seeking medical attention caused delayed diagnosis, or the administrative burdens inflicted by the epidemic hampered normal registration processes and then the non-registered cases were carried over to the next year. Note that this happened even though no radical cuts were made to cancer treatment in Hong Kong, as there have been in Hubei this time. When resources become as heavily skewed toward COVID-19 patients as they have in Hubei and elsewhere, the cancer patients currently ignored will face delays in diagnosis and treatment, which will adversely affect oncological outcomes. This very same challenge to healthcare service will be faced by other countries heavily afflicted by the virus such as USA, Italy, Spain, and France as the epicentres of COVID-19 has now shifted to Europe and the Americas.
     The Chinese government, as with governments elsewhere, should therefore take steps to prepare for a massive resurgence of cancer patients hitting the healthcare system once the COVID-19 pandemic has been contained. It is understandable that the authorities are under pressure to accord top priority to this containment, especially given the media furore and public anxiety. But it is both ethically and pragmatically dubious that this should be done to the detriment of all other patients. Considerations of justice and of equable resource allocation must not be neglected in national preparedness for cancer incidence [7]. The urgency to reassign priorities so as to give due weight to the needs of cancer patients and ontological research is acute even from a law and policy perspective. China’s landmark Basic Healthcare and Health Promotion Law, which codifies a decade of healthcare reforms and is set to enter into force on 1 June 2020, will for the first time guarantee to the Chinese people a positive “right to health”, which will in turn obligate the State to enhance citizens’ ability to live a “full life cycle” (Article 4), echoing the promises of Article 12 of the International Covenant on Economic, Social and Cultural Rights, signed and ratified by most countries of the world.