New Book by Sida Liu et al: The Asian Law and Society Reader (Cambridge University Press)

The Asian Law and Society Reader
Lynette J. Chua, David M. Engel, and Sida Liu
Cambridge University Press
Published in March 2023
400 pp.
DOI: https://doi.org/10.1017/9781108864824

Book Description: The first reader on Asian law and society scholarship, this book features reading selections from a wide range of Asian countries – East, South, Southeast and Central Asia – along with original commentaries by the three editors on the theoretical debates and research methods pertinent to the discipline. Organized by themes and topical areas, the reader enables scholars and students to break out of country-specific silos to make theoretical connections across national borders. It meets a growing demand for law and society materials in institutions and universities in Asia and around the world. It is written at a level accessible to advanced undergraduate students and graduate students as well as experienced researchers, and serves as a valuable teaching tool for courses focused on Asian law and society in law schools, area studies, history, religion, and social science fields such as sociology, anthropology, politics, government, and criminal justice.

Reviews: 

‘This is just the volume that sociolegal scholars have been waiting for! The Asian Law and Society Reader is an elegantly organized, comprehensive, and accessible text, analyzing contemporary substantive topics within enduring legacies of colonialism and rapid legal and social transformation. The text illuminates the significance of this innovative and rich body of research for all law and society scholars today - wherever one works in the world.’

Eve Darian-Smith - Professor and Chair of Global and International Studies, University of California, Irvine, and coeditor of the Routledge Handbook of Law and Society (2021)

‘This book is a treasure trove of law and society research, spanning a massive diversity of societies and an equally broad array of issues. There is no scholar of the region who will fail to learn from it, and it will be of great use for teaching and research.’

Tom Ginsburg - Leo Spitz Professor of International Law, Ludwig and Hilde Wolf Research Scholar, and Professor of Political Science, University of Chicago

‘This intelligently curated collection brings together a new generation of Asian law and society research. It is exactly the right starting point for getting up to speed on the diversity of the field, or for anyone who wants to learn more about Asian politics and society through the lens of law.’

Rachel Stern - Professor of Law and Political Science and Pamela P. Fong and Family Distinguished Chair in China Studies, School of Law, University of California, Berkeley

‘In the twenty-first century, Asia will surely become another center for law and society scholarship. The inherent diversity of Asia will be further developed and conducive to future-oriented institutional experiments and knowledge innovation. From this point of view, the publication of The Asian Law and Society Reader is of great significance. I believe that it is the best introductory guide for Asian law and society research at this stage, and is also an indispensable reference for carrying out law and society education in Asian countries.’

Weidong Ji - University Professor of Humanities and Social Sciences, Shanghai Jiao Tong University, and President, China Institute for Socio-Legal Studies

‘This book examines the meaning and action of law in diverse Asian societies through a detailed examination of a wide range of issues. Readers will gain in-depth knowledge of various topics and will be able to read the universal significance of law and society studies in Asia.’

Yoshitaka Wada - Professor of Law, Faculty of Law, Waseda University, Tokyo

‘Grounded in rich empirical research, this volume extends the epistemological and methodological imagination of law and society. Intellectual conversations between empirical essays and insightful commentary reveal intellectual journeys of scholars and the field itself, achieving both a bird’s-eye view of the field and insights into the lives of ordinary people as they negotiate socio-legal realities on the ground.’

Yukiko Koga - Associate Professor of Anthropology, Yale University

Kelvin Kwok, Eric Ip and Shing Fung Lee on The Conundrums of the Reasonable Patient Standard in English Medical Law (BMC Medical Ethics)

"The conundrums of the reasonable patient standard in English medical law"
Kelvin Hiu Fai Kwok, Eric C. Ip & Shing Fung Lee
BMC Medical Ethics
Published on 23 February 2023
Abstract:

Background

In its 2015 decision in Montgomery v. Lanarkshire Health Board, the Supreme Court of the United Kingdom overruled the long-standing, paternalistic prudent doctor standard of care in favour of a new reasonable patient standard which obligates doctors to make their patients aware of all material risks of the recommended treatment and of any reasonable alternative treatment. This landmark judgment has been of interest to the rest of the common law world. A judicial trend of invoking Montgomery to impose more stringent requirements on doctors is discernible in subsequent decisions since then.

Main body

In this narrative review, without questioning the idea that properly informed patients should play a more active role in procedures affecting their own health in furtherance of their autonomy, safety, and consumer rights, we identify and analyse, with the aid of realistic clinical thought experiments, three practical conundrums that the Montgomery standard may inflict on the daily work of doctors, unfairly exposing them to arbitrary legal risks.

Conclusions

These conundrums pertain to the ascertainment of the risks that must be disclosed to the patient under the test of ‘materiality’; the legal uncertainty as to the scope of the exceptions; and the actual ability of doctors to cope with the pressures of time. These conundrums offer ripe opportunities to rethink the proper role of judicially developed medical law in modern health care practice.

Miron Mushkat & Roda Mushkat on Reconfiguring the Linkage Between Corruption and Economic Development in China: Legitimate Concerns Not Alleviated (Southern California Interdisciplinary Law Journal)

"Reconfiguring the Linkage Between Corruption and Economic Development in China: Legitimate Concerns Not Alleviated"

Miron Mushkat & Roda Mushkat
Southern California Interdisciplinary Law Journal, Issue 32, pp. 75-111
Published in 2022

Abstract: Grappling with the intricacies of corrupt practices in the postpositivist age has become an increasingly challenging proposition. Multiple perspectives, normative as well as positivist, have been brought to bear on this phenomenon that was once thought to be straightforward. Socio-legal scholars inspired by the law-and economics paradigm have largely adhered to the positivist blueprint but have been divided between those who regard corruption as unequivocally inimical to the health of the economy (“sanders”) and those who view it as a force selectively fueling economic dynamism (“greasers”). The reform-era Chinese hybrid economy has emerged as the laboratory where these conflicting ideas vie for scientific superiority. Some pathbreaking research has been undertaken, mostly leaning toward the “optimistic” side. This Article shows that it has fallen short of significantly enhancing that functionally sanguine position and that the weight of evidence continues to support the stance espoused by “negatively” inclined scholars.

Call for Papers: the Conference on ‘Hong Kong Bilingual Legal System: Retrospect and Prospect’ (abstract submission: on or before Apr 30)

The Conference on ‘Hong Kong Bilingual Legal System: Retrospect and Prospect’ will be held on 26 and 27 August 2023 at the University of Hong Kong. Organised by the Faculty of Law of the University of Hong Kong, the conference is the first major international academic conference to focus on legal language of Hong Kong. The Conference aims to provide a platform for experts and legal practitioners from home and abroad to present their research and practical views, as well as to provide networking opportunities. In addition to the presentation sessions, workshops will be held on a variety of topics, covering both theoretical and practical aspects. As the Official Languages Ordinance is approaching its 50th anniversary, this Conference will review the challenges and opportunities of legal language of Hong Kong, and provide new ideas and directions to guide the further development of Hong Kong’s bilingual legal system.

「香港雙語法制：回顧與前瞻」研討會將於2023 年8 月26 日及27 日在香港大學舉行。 本研討會由香港大學法律學院主辦，是首場以香港法律語言為主題的大型國際學術研討會。 本研討會旨在為國內外專家學者及法律從業員提供平台，發表研究成果及實務意見，以及 提供交流、聯繫的機會。本研討會除設有專題報告環節外，亦會舉行不同主題的工作坊，兼顧理論與實務層面。適逢《法定語文條例》實施接近50 年，本研討會將回顧香港法律 語言的挑戰及機遇，並提供新思維、新方向，引領香港雙語法制進一步發展。

Experts, scholars, practitioners, and students in the field of legal language research are invited to submit papers on any topic related to Hong Kong’s bilingual legal system and the legal language of Hong Kong. Each paper will have a tentative presentation time of 15 minutes and a discussion time of 10 minutes. Papers are particularly welcomed on the following topics:

現誠邀國內外從事法律語言研究的專家學者、法律從業員、學生等提交任何與香港雙語法 制或香港法律語言有關的論文。每篇論文報告時間暫定為15 分鐘，討論時間為10 分鐘。

本研討會特別歡迎圍繞下列主題的論文：

1. The development of the common law in Chinese

以中文發展的普通法

2. Developments and challenges in the use of Chinese in court proceedings

於法庭程序使用中文的發展和挑戰

3. Developments and challenges in bilingual law drafting

雙語法律草擬的發展和挑戰

4. The impact of information technology on the use of Chinese in law

資訊科技對法用中文的影響

5. The development of bilingual legal education

雙語法律教育的發展

6. Development of legal Chinese in the Greater China Region

大中華地區的法用中文發展

1. This Conference is conducted in both Chinese and English, and abstracts are welcomed in either Chinese or English.

本研討會以中文、英文雙語進行，歡迎以中文或英文提交論文提要。

2. Abstracts should be anonymous and should not exceed 400 words.

論文提要應為匿名，字數不超過400 字。

3. Please send your abstract in Microsoft Word (*.docx / *.doc) or as a text file (*.rtf / *.txt) to

lawlanghk@gmail.com on or before 30 April 2023 (Sunday).

請於2023 年4 月30 日（星期日）前把論文提要以Microsoft Word 電子檔 (*.docx / *.doc)

或文字檔案 (*.rtf / *.txt) 發送至 lawlanghk@gmail.com.

4. In the email text, please include the (1) real name, (2) affiliation and position, (3) correspondence address, and (4) email address of the author(s).

請於電郵內文註明作者的 (1) 真實姓名；(2) 所屬機構名稱、職稱；(3) 通訊地址及 (4) 電子郵件信箱。

5. Each person may submit a maximum of two individual papers and two co-authored papers.

每人最多只能提交兩篇單獨撰寫的論文，以及兩篇合寫的論文。

6. Abstracts will be anonymously reviewed and approved before they can be presented at the Conference. Review results will be available on 31 May 2023 (Wednesday). 論文提要將經匿名評審，通過評審後始能在研討會上報告。評審結果將於2023 年5 月31 日（星期三）公布。

7. Some of the presented papers may be published in a book, tentatively scheduled for 2024. The final decision of acceptance will be made by the Organising Committee of the Conference based on the academic standard and practical reference value of the paper.

部分發表的論文可能編集成書，並暫定於 2024 年出版。錄取論文與否，以其學術水平及實務參考價值為衡量標準，最後結果由研討會籌備委員會決定。

8. Conference participation is free (including a conference dinner on 26 August 2023 for invited guests and paper presenters). Conference participants are responsible for their own travel expenses to and from their place of origin to Hong Kong, meals, accommodation, sightseeing and transportation costs in Hong Kong during the Conference. Paper presenters coming from outside Hong Kong will receive a modest subvention towards their costs.

參加會議是免費的（包括2023 年8 月26 日為受邀嘉賓及論文發表者舉行的會議晚宴）。 與會者須自行負責來回原居地與香港的交通費，以及研討會期間在香港的住宿、膳食、觀光和交通費用。來自香港以外的論文發表者將獲得適量的費用補貼。

For enquiries, please contact Mr Wilson Lui (Pre-Doctoral Fellow and part-time Lecturer, HKU Faculty of Law), Ms Alice Lee (Associate Professor, HKU Faculty of Law), or Mr Edmund Cham (Adjunct Associate Professor, HKU Faculty of Law) at lawlanghk@gmail.com.

如有查詢，請電郵至 lawlanghk@gmail.com 與呂致延先生（香港大學法律學院博士前研究員、兼任講師）、李雪菁小姐（香港大學法律學院副教授）或湛樹基先生（香港大學法律學院客席副教授）聯絡。

New Issue of Asia-Pacific Journal on Human Rights and the Law (Volume 24, Issue 1, February 2023)

     ASIA-PACIFIC JOURNAL ON HUMAN RIGHTS AND THE LAW

Editors-in-Chief: Simon NM Young and Kelley Loper

Publisher: Brill, Leiden

2023, Volume 24, Issue 1

Table of Contents

Front matter

Pages: i–iv

Online Publication Date: 15 Feb 2023

 

Legal Mobilisation by Women with Disabilities in Indonesia

Author: 

Yogi Paramitha Dewi

Pages: 1–21

Online Publication Date: 15 Feb 2023

 

The Role of External Dynamics on Vietnam’s Ratification of the Convention Against Torture

Author: 

Huan Tuong Vo

Pages: 22–42

Online Publication Date: 15 Feb 2023

 

Fighting Against Disinformation from Foreign Forces? Or Suppressing Criticism from Domestic Opposition Parties?

Taiwan’s Experience

Author: 

Chih-Chieh Yang

Pages: 43–74

Online Publication Date: 15 Feb 2023

 

Investor-State Arbitration and Indigenous Rights

Author: 

Inigo Kwan-Parsons

Pages: 75–126

Online Publication Date: 15 Feb 2023

 

Precluding the Wrongfulness of Derogations of International Human Rights Instruments

Authors: 

Ashika Jain

 and 

Rohit Gupta

Pages: 127–154

Online Publication Date: 15 Feb 2023

 

Congratulations to Dr Cynthia Farid on being awarded a Global Young Academy (GYA) membership

Congratulations to Dr Cynthia Farid (Global Academic Fellow) who has been admitted as a Global Young Academy (GYA) member representing Bangladesh for a five-years term!

  Under the leadership of Menattallah Elserafy (Zewail City of Science and Technology, Egypt) the 53-member Selection Committee of the Global Young Academy (GYA) finalised the selection of 41 new members to join the GYA in June 2023 for a tenure of five years. The GYA’s new member cohort includes representatives from 31 individual countries, covering all GYA general disciplines, and includes 16 females, 1 non-binary and 24 males. In June 2023 when the new cohort is inducted, the gender ratio will be 104 female/93 male/2 non-binary/1 no information given. Such gender balance is a development that the GYA has been moving towards for the last few years and is a reflection of the excellent female/non-binary applicants to the GYA. Among other activities, the GYA acts as a facilitator and convenor for the growing global network of National Young Academies (NYAs). The GYA is therefore delighted to see that a number of new members are also members of – or in leadership positions in – their respective country’s NYA.

      By this opportunity, Dr Cynthia Farid perceives that being part of GYA will be a great network for interdisciplinary research, which could help connect to a lot of global opportunities.  This will give her an edge in global outlook of her legal research career. Dr Farid's research interests include Constitutional Law, Legal History, Law and Society, Human Rights, Law and Development.  To view her profile on the Global Young Academy (GYA) webpage, click here. 

Benjamin Chen et al on HAVING YOUR DAY IN ROBOT COURT (Harvard Journal of Law & Technology)

 "HAVING YOUR DAY IN ROBOT COURT"
Benjamin Minhao Chen, Alexander Stremitzer & Kevin Tobia
Harvard Journal of Law & Technology, 
Volume 36, Number 1, pp. 127-169
Published in Fall 2022 

Abstract: Should machines be judges? Some say “no,” arguing that citizens would see robot-led legal proceedings as procedurally unfair because the idea of “having your day in court” is thought to refer to having another human adjudicate one’s claims. Prior research established that people obey the law in part because they see it as procedurally just. The introduction of “robot judges” powered by artificial intelligence (“AI”) could undermine sentiments of justice and legal compliance if citizens intuitively view machine-adjudicated proceedings as less fair than the human-adjudicated status quo. Two original experiments show that ordinary people share this intuition: There is a perceived “human-AI fairness gap.” However, it is also possible to reduce — and perhaps even eliminate — this fairness gap through “algorithmic offsetting.” Affording litigants a hearing before an AI judge and enhancing the interpretability of AI decisions reduce the human-AI fairness gap. Moreover, the perceived procedural justice advantage of human over AI adjudication appears to be driven more by beliefs about the accuracy of the outcome and thoroughness of consideration, rather than doubts about whether a party had adequate opportunity to voice their opinions or whether the judge understood the perspective of the litigant. The results of the experiments can support a common and fundamental objection to robot judges: There is a concerning human-AI fairness gap. Yet, at the same time, the results also indicate that the public may not believe that human judges possess irreducible procedural fairness advantages. In some circumstances, people see a day in a robot court as no less fair than a day in a human court.

Benjamin Chen et al on Would Humans Trust an A.I. Judge? More Easily Than You Think (Slate)

"Would Humans Trust an A.I. Judge? More Easily Than You Think"
Benjamin Chen, Alexander Stremitzer, and Kevin Tobia
Slate

Published on 28 February 2023

Introduction: Artificial intelligence judging has become a reality. Last month, a Colombian judge used ChatGPT to generate part of his judicial opinion. Colombia is not alone. Estonia has piloted a robot judge, and the United States. and Canada increasingly use A.I. tools in law.

      These recent events have sparked a debate about “unethical” uses of A.I. in the judiciary. As the technological hurdles to A.I.-judging recede, the remaining barriers are ones of law and ethics.

        Would it be fair to citizens for an A.I. judge—an algorithmic decision-maker—to resolve disputes? 

Pui-yin Lo on Reactivated and Re-energised: The Sedition Offences in “New Era” Hong Kong (HKLJ)

Reactivated and Re-energised: The Sedition Offences in “New Era” Hong Kong
Pui-yin Lo

in Hong Kong Law Journal (Vol. 52, Part 3 of 2022), pp.913-936

Abstract: Sections 9 and 10 of the Crimes Ordinance (Cap 200), which prescribe the offences of sedition in Hong Kong, have had an extraordinary history since the establishment of the Hong Kong Special Administrative Region (HKSAR). Notwithstanding that it was once proposed to put them into the proverbial dustbin, the sedition offences have, since the introduction of the Law of the People’s Republic of China on Safeguarding National Security in the Hong Kong Special Administrative Region (NSL) in mid-2020, been vigorously enforced as an “offence endangering national security” within the meaning of the NSL by the National Security Department of the Hong Kong Police Force and the Department of Justice. This article considers this recent history of reactivation of the sedition offences in conjunction with the system of enforcement provided under the NSL in order to explain the boosted position held of the sedition offences by the local law enforcers and their supervisors. This article then examines several completed prosecutions of sedition to date to discern how the courts of the HKSAR have viewed these offences, both in light of the attempts to impugn the offences by the defence and the comparable cases of sedition-like offences from other common law jurisdictions. Finally, this article offers three strategies for persuading the appellate courts that the sedition offences and their enforcement per the NSL could be curtailed or circumscribed: (1) sections 9 and 10 had been repealed by operation of the Hong Kong Bill of Rights Ordinance (Cap 383), and accordingly there is nothing to be revived for enforcement; (2) remedial interpretation(s) can be suitably imposed to resolve the issues of legal certainty and necessity of criminalising speech and expressive acts merely and plainly for their ascribed “intentions” and (3) several of the seven categories of “seditious intention” have a reasonably doubtful connection with the safeguarding of national security and the obligation of the institutions of the HKSAR to prevent, suppress and punish acts and activities endangering national security, so that it is appropriate on balance with the protection of fundamental rights and the rule of law to disapply the NSL’s system of enforcement against persons alleged to have committed acts under those categories of “seditious intention”.

Simon Young on Reflections on the Meaning of the Right to Vote in Hong Kong (HKLJ)

Reflections on the Meaning of the Right to Vote in Hong Kong
Simon NM Young

in Hong Kong Law Journal (Vol. 52, Part 3 of 2022), pp. 965-976

Abstract: If rights are interpreted purposively, what is the purpose of the right to vote in Hong Kong? It means more than casting a ballot or being a candidate in elections. The right to vote serves to enable permanent residents to participate meaningfully in the electoral process and public affairs more generally. Meaningful participation implies that voters are informed of the relevant issues. Hong Kong underwent major reforms in its electoral systems in 2021. In the eyes of the public, the reforms had the effect of rendering the right to vote less meaningful, if not meaningless. In the future, the central and regional governments need to restore people’s confidence in the elections and bring back vibrancy to the right to vote in Hong Kong.

Johannes Chan on Taking Rights Seriously — the Judiciary at a Challenging Time (HKLJ)

Taking Rights Seriously — the Judiciary at a Challenging Time

Johannes Chan
in Hong Kong Law Journal (Vol. 52, Part 3 of 2022), pp. 937-964

Abstract: While the judiciary is generally regarded as the defender of the rule of law and fundamental rights, it is not uncommon that judges could also suppress democratic values. Courts around the world have legitimised undemocratic or even repressive law and practices. Authoritarian regimes tend to capture the judiciary, not only because the judiciary would provide the legitimacy for anti-democratic measures, but the nature of the institution could also masquerade such measures as a legitimate exercise of power that makes it more difficult to detect and respond to. This article examines the relationship between the Central Government and the judiciary of the Hong Kong Special Administrative Region (HKSAR). It focuses on the judicial responses when the Central Government decided to shift the emphasis from “Two Systems” to “One Country” under the constitutional design of the HKSAR and to exercise “full jurisdiction” over Hong Kong. By focusing on the reasoning and the context of the relevant cases, it argues that the responses of the judiciary amount to a weak form of “abusive judicial review”. The constitutional model of “One Country, Two Systems” implies mutual accommodation of the two systems, and convergence means reconciliation of the two systems rather than changing one system to conform with the other system. While there are incidents suggesting a strong form of “abusive judicial review”, it is argued that it is too early to draw this conclusion. The article also cautions that when the pendulum has swung from one extreme to the other, it is even more important for the judiciary to make full use of the tapestry of common law principles to strike a better balance between fundamental rights and protection of national security.

Michael Jackson on Two Years On: Reviewing the Implementation of the National Security Law in the HKSAR (HKLJ)

"Two Years On: Reviewing the Implementation of the National Security Law in the HKSAR"
Michael Jackson 
in Hong Kong Law Journal (Vol. 52, Part 3 of 2022), pp.875-912

Abstract: This review surveys the case law dealing with the Hong Kong National Security Law (NSL) offences in the two years since the enactment of the NSL, with a view to identifying what we have learned about the four categories of NSL offences. The article is concerned primarily with Ch III of the NSL, headed “Offences and Penalties”, but also covers to a lesser extent Ch IV, dealing with “Jurisdiction, Applicable Law and Procedure”. Part 1 introduces the NSL offences regime. Part 2 will briefly summarise the enforcement of the NSL since its enactment. Part 3 will outline several key themes or rulings emerging from the case law relating to the integration of the NSL with existing HK criminal law and procedure. Part 4 will explore what we have learned about the NSL offences themselves and their elements, and how the courts have begun to shape these offences within HK’s existing common law legal system. Part 5 will offer some brief conclusions.

Jing Hui on Proprietary Estoppel Remedies in Hong Kong (HKLJ)

Proprietary Estoppel Remedies in Hong Kong
Jing Hui
in Hong Kong Law Journal (Vol. 52, Part 3 of 2022), pp.789 - 798

Abstract: In Hong Kong law, the courts have always declined to introduce the remedial constructive trust device, characterising it as a moot point or as a device that does not exist in Hong Kong. However, the most recent Court of Final Appeal (CFA) decision in Cheung Lai Mui v Cheung Wai Shing [2021] HKCFA 19 deviated from the foregoing attitude to remedial constructive trusts. It recognised “unconscionability” as the basis of relief, demonstrating the departure of Hong Kong law from the principles of proprietary estoppel currently applied in the English law. Contrary to the English approach of minimum equity to do justice, the exercise of broad discretion by the CFA in Cheung Lai Mui was more similar to the Australian approach to proprietary estoppel remedies. This case note analyses the reasons why the CFA adopted the remedial constructive trust approach in Cheung Lai Mui, as well as the problems that arise from the adoption of such an approach in Hong Kong law.

New Issue of Hong Kong Law Journal (Vol. 52, Part 3 of 2022)

HONG KONG LAW JOURNAL

Vol. 52, Part 3 of 2022

Editor-in-Chief: Professor Rick Glofcheski

Associate Editor: Professor Albert Chen

Publisher: Sweet & Maxwell

TABLE OF CONTENTS

Analysis

Proprietary Estoppel Remedies in Hong Kong
Jing Hui...789

In Hong Kong law, the courts have always declined to introduce the remedial constructive trust device, characterising it as a moot point or as a device that does not exist in Hong Kong. However, the most recent Court of Final Appeal (CFA) decision in Cheung Lai Mui v Cheung Wai Shing [2021] HKCFA 19 deviated from the foregoing attitude to remedial constructive trusts. It recognised “unconscionability” as the basis of relief, demonstrating the departure of Hong Kong law from the principles of proprietary estoppel currently applied in the English law. Contrary to the English approach of minimum equity to do justice, the exercise of broad discretion by the CFA in Cheung Lai Mui was more similar to the Australian approach to proprietary estoppel remedies. This case note analyses the reasons why the CFA adopted the remedial constructive trust approach in Cheung Lai Mui, as well as the problems that arise from the adoption of such an approach in Hong Kong law.

Falsehoods, Foreign Interference and Free Speech in Singapore
Kenny Chng and Jeremy Chai...799

Lecture

The Essence of Advocacy
Kemal Bokhary...811

Basic Law Anniversary Focus

Focus: 25th Anniversary of the HKSAR
Albert HY Chen...825

The Changing Constitutional Order of the HKSAR: A Retrospective Reflection
Zhu Guobin...827

Identity Politics and Constitutional Change in Hong Kong: The National Security Law and 25 Years of the Basic Law
Jie Cheng...851

Two Years On: Reviewing the Implementation of the NationalSecurity Law in the HKSAR
Michael Jackson...875

This review surveys the case law dealing with the Hong Kong National Security Law (NSL) offences in the two years since the enactment of the NSL, with a view to identifying what we have learned about the four categories of NSL offences. The article is concerned primarily with Ch III of the NSL, headed “Offences and Penalties”, but also covers to a lesser extent Ch IV, dealing with “Jurisdiction, Applicable Law and Procedure”. Part 1 introduces the NSL offences regime. Part 2 will briefly summarise the enforcement of the NSL since its enactment. Part 3 will outline several key themes or rulings emerging from the case law relating to the integration of the NSL with existing HK criminal law and procedure. Part 4 will explore what we have learned about the NSL offences themselves and their elements, and how the courts have begun to shape these offences within HK’s existing common law legal system. Part 5 will offer some brief conclusions.

Reactivated and Re-energised: The Sedition Offences in “New Era” Hong Kong
Pui-yin Lo ...913

Sections 9 and 10 of the Crimes Ordinance (Cap 200), which prescribe the offences of sedition in Hong Kong, have had an extraordinary history since the establishment of the Hong Kong Special Administrative Region (HKSAR). Notwithstanding that it was once proposed to put them into the proverbial dustbin, the sedition offences have, since the introduction of the Law of the People’s Republic of China on Safeguarding National Security in the Hong Kong Special Administrative Region (NSL) in mid-2020, been vigorously enforced as an “offence endangering national security” within the meaning of the NSL by the National Security Department of the Hong Kong Police Force and the Department of Justice. This article considers this recent history of reactivation of the sedition offences in conjunction with the system of enforcement provided under the NSL in order to explain the boosted position held of the sedition offences by the local law enforcers and their supervisors. This article then examines several completed prosecutions of sedition to date to discern how the courts of the HKSAR have viewed these offences, both in light of the attempts to impugn the offences by the defence and the comparable cases of sedition-like offences from other common law jurisdictions. Finally, this article offers three strategies for persuading the appellate courts that the sedition offences and their enforcement per the NSL could be curtailed or circumscribed: (1) sections 9 and 10 had been repealed by operation of the Hong Kong Bill of Rights Ordinance (Cap 383), and accordingly there is nothing to be revived for enforcement; (2) remedial interpretation(s) can be suitably imposed to resolve the issues of legal certainty and necessity of criminalising speech and expressive acts merely and plainly for their ascribed “intentions” and (3) several of the seven categories of “seditious intention” have a reasonably doubtful connection with the safeguarding of national security and the obligation of the institutions of the HKSAR to prevent, suppress and punish acts and activities endangering national security, so that it is appropriate on balance with the protection of fundamental rights and the rule of law to disapply the NSL’s system of enforcement against persons alleged to have committed acts under those categories of “seditious intention”.

Taking Rights Seriously — the Judiciary at a Challenging Time
Johannes Chan...937

While the judiciary is generally regarded as the defender of the rule of law and fundamental rights, it is not uncommon that judges could also suppress democratic values. Courts around the world have legitimised undemocratic or even repressive law and practices. Authoritarian regimes tend to capture the judiciary, not only because the judiciary would provide the legitimacy for anti-democratic measures, but the nature of the institution could also masquerade such measures as a legitimate exercise of power that makes it more difficult to detect and respond to. This article examines the relationship between the Central Government and the judiciary of the Hong Kong Special Administrative Region (HKSAR). It focuses on the judicial responses when the Central Government decided to shift the emphasis from “Two Systems” to “One Country” under the constitutional design of the HKSAR and to exercise “full jurisdiction” over Hong Kong. By focusing on the reasoning and the context of the relevant cases, it argues that the responses of the judiciary amount to a weak form of “abusive judicial review”. The constitutional model of “One Country, Two Systems” implies mutual accommodation of the two systems, and convergence means reconciliation of the two systems rather than changing one system to conform with the other system. While there are incidents suggesting a strong form of “abusive judicial review”, it is argued that it is too early to draw this conclusion. The article also cautions that when the pendulum has swung from one extreme to the other, it is even more important for the judiciary to make full use of the tapestry of common law principles to strike a better balance between fundamental rights and protection of national security.

Reflections on the Meaning of the Right to Vote in Hong Kong
Simon NM Young ...965

If rights are interpreted purposively, what is the purpose of the right to vote in Hong Kong? It means more than casting a ballot or being a candidate in elections. The right to vote serves to enable permanent residents to participate meaningfully in the electoral process and public affairs more generally. Meaningful participation implies that voters are informed of the relevant issues. Hong Kong underwent major reforms in its electoral systems in 2021. In the eyes of the public, the reforms had the effect of rendering the right to vote less meaningful, if not meaningless. In the future, the central and regional governments need to restore people’s confidence in the elections and bring back vibrancy to the right to vote in Hong Kong.

Articles

Enforceability of Excessive Pricing Rules under Hong Kong Competition Law
Jae Woon Lee and Yiu Yeung Tong...977

The Executive Order System of the Basic Law of the Macao Special Administrative Region
Yumei Kang and Ziyu Liu...997

Window Dressing or Meaningful Constraint? Assessing the Role of the International Covenant on Civil and Political Rights and the United Nations Human Rights Committee in Hong Kong’s Legal System Carole J Petersen...1031

The Challenges of the Singapore Convention to the Chinese Mediation System
Xiong Hao...1057

China Law

Dancing in Chains: Reassessing China’s Foreign Investment Legislation (Part II)
Li Yang, Hui Pang and Charlie Xiao-chuan Weng...1083

Comparison of China’s CPPCC and the UK House of Lords: Insights for the Construction of the CPPCC System

Chengwei Liu and Kang Wang...1111

A Right to an Explanation of Algorithmic Decision-Making in China
Huanmin Lin and Hong Wu...1163

An Empirical Study of Pain and Suffering Awards in Chinese Personal Injury Cases
Ding Chunyan and Zhi Pei...1193

Book Review

Hong Kong Competition Law — Comparative and Theoretical Perspectives, by Thomas K. Cheng and Kelvin Hiu Fai Kwok [Oxford University Press, U.K., 2021, 286pp, hardback, £95] ISBN 9781108553155

Sinchit Lai...1229

Angela Zhang on Agility Over Stability: China’s Great Reversal in Regulating the Platform Economy (Harvard International Law Journal)

"Agility Over Stability: China’s Great Reversal in Regulating the Platform Economy"
Angela Zhang
Harvard International Law Journal, Volume 63, Issue 2, pp. 457-514
Published in February 2023

Abstract: This Article develops the five-element HAPPY model to study Chinese regulation: the regulatory process is hierarchical, the top leadership is adaptable, the Chinese regulators are parochial, the firms are pliant and the Chinese public need to yelp to be heard. By focusing on China’s great reversal in regulating the platform economy, I show that Chinese policy volatilities have stemmed from the hierarchical structure in which power is centralized among top leaders, who also suffer from a chronic deficit of information. I particularly highlight how favorable support from the top leadership, aggressive lobbying from tech firms, and the bureaucratic inertia of the regulators together contributed to a lag in regulating Chinese online platforms. When a crisis looms, the top leadership quickly mobilizes all administrative resources and propaganda to initiate a law enforcement campaign against tech giants. However, without strong judicial oversight, aggressive agency interventions create the risk of over-enforcement and administrative abuse. Thus far, China’s reorientation of its policy control has significantly bolstered its regulatory capacity across various fronts including financial, antitrust, and data regulation. By exerting greater oversight over platform governance, the government has enhanced the bargaining power of the various platform participants in dealing with the platforms. The government’s heavy-handed approach has also afforded it great leverage to nudge tech firms to prioritize developing cutting-edge technologies, and to steer them away from foreign stock markets, thus reducing reliance on the West for both technologies and capital. Despite the campaign’s immediate impact, it remains to be seen whether it will bring about lasting changes, especially in light of the persistent lobbying from tech firms and the risk of regulatory capture. At the same time, the volatile policy swing has itself generated risks and uncertainties, which in turn could cause turmoil to domestic social and financial stability. As the rest of the world is similarly confronted with thorny questions about how to rein in Big Tech, China’s experience with platform regulation could offer some lessons that inform the global policy debate. Although this Article focuses primarily on the platform economy, the HAPPY model has the promise to shed light on the complexity and dynamics in other areas of regulatory governance in China and beyond.

New Issue of Asia-Pacific Journal on Human Rights and the Law (Volume 23, Issue 3, Nov 2022)

     ASIA-PACIFIC JOURNAL ON HUMAN RIGHTS AND THE LAW

Editors-in-Chief: Simon NM Young and Kelley Loper

Publisher: Brill, Leiden

2022, Volume 23, Issue 3

Table of Contents

The Right to Political Participation of Ethnic Minority Women in Vietnam  

Barriers and Challenges

Authors: 

Nguyen Thi Hong Yen and Nguyen Toan Thang

Pages: 

281–314

Online Publication Date: 

16 Nov 2022

 

Human Rights During the Pandemic and the National Human Rights Commission of Bangladesh

A Dispirited Performance in a South Asian Context?

Author: 

Raihan Rahman Rafid

Pages: 

315–353

Online Publication Date: 

16 Nov 2022

 

The Malaysian Media Council: Will Self-Regulation Work?

Learning From the United Kingdom’s Press Self-Regulation Experience

Authors: 

Hafidz Hakimi Haron and Farid Sufian Shuaib

Pages: 

354–380

Online Publication Date: 

16 Nov 2022

 

Human Rights Protection in the Surrender of Fugitive Offenders between Mainland China, Hong Kong and Macau

Author: 

Yanhong Yin

Pages: 

381–413

Online Publication Date: 

16 Nov 2022

 

Publisher’s Note

Author: 

Lauren Danahy

Pages: 

414

Online Publication Date: 

16 Nov 2022

 

Back matter

Pages: 

415–416

Online Publication Date: 

16 Nov 2022

United Nations Office in Drugs and Crime Endorses HKU's KE Species Victim Impact Statement Fund Initiative (Amanda Whitfort)

Associate Professor Amanda Whitfort's KE work on the Species Victim Impact Statement Initiative (a collaboration between the HKU Law Faculty and the School of Biological Sciences' Conservation Forensics Lab) has been endorsed by the United Nations Office on Drugs and Crime (UNODC). Amanda's team prepares species victim impact statements for the most highly endangered animals in illegal trade. These have been used by prosecutors to inform the courts in Hong Kong of the impact of wildlife crime and have led to a 2000% increase in sentences since they were first adopted in 2016.

https://www.svis.law.hku.hk/

     Working with the international charity, the Environmental Investigation Agency (EIA), Amanda adapted the victim statements for African pangolin species and elephants for use by prosecutors in Nigerian courts in Africa. The UNODC has now published the species victim impact statements for these species as a recommended tool for effective prosecutions in Nigeria. The victim impact statements appear in the Nigerian Rapid Reference Guide for Prosecutors and Investigators of Wildlife Crime, which was launched by the Nigerian Minister of the Environment on World Wildlife Day, 3 March 2023. 

       The development of the Rapid Reference Guide for prosecutors and investigators is one of the key deliverables of the National Strategy to Combat Wildlife and Forest Crime in Nigeria 2022- 2026. This National Strategy is the first of its kind, with a five year plan to lay the foundation for sustained efforts towards achieving wildlife conservation in Nigeria.

     The HKU SVIS Initiative is proud to be impacting justice responses to wildlife crime globally. Amanda is now working with judges, prosecutors and law enforcement in ten countries ensuring this HKU funded Knowledge Exchange initiative continues to support the protection of endangered species around the world.

      Amanda has spoken about the project in a guest blog for the EIA published on their website this week.

New Book edited by Daisy Cheung & Michael Dunn: Advance Directives Across Asia (Cambridge University Press)

Advance Directives Across Asia
Edited by Daisy Cheung & Michael Dunn
Cambridge University Press

Published in February 2023
342 pp.

DOI: https://doi.org/10.1017/9781009152631

Book Description: This book is the first to consider comprehensively and systematically the law and practice of advance directives across Asia. It will thus be important not only as a reference volume that documents how advance directives are regulated and used throughout Asia, but also as an exploration of the concept of the advance directive itself, in context. By examining how advance directives operate in Asian countries, we will also shed light on the principle of personal autonomy in this context, alongside other values and religious and socio-cultural factors that shape health and care decision-making. As such, this book will have broad appeal not only to Asian scholars, students, policymakers and practitioners in the fields of health law and ethics and end-of-life care more generally, but will also be of wider interest to an international academic audience in the fields of law, ethics and health and social care research. This title is also available as open access on Cambridge Core.
Book Review by Alex RK on 25 February 2023: 

It is always a joy when a book not only lives up to what it promises in its title, but goes substantially further. This book is just such a one. Daisy Cheung, Assistant Professor at the Centre for Medical Ethics and Law at the University of Hong Kong, and Michael Dunn, Associate Professor at the Centre for Biomedical Ethics, National University of Singapore, have gathered a wide range of contributors to analyse the very different places of advance directives in end of life decision-making in 14 jurisdictions across Asia.[1] Crucially, they have also done the necessary heavy-lifting behind the scenes and on the page to pull together the threads to pose fascinating and important questions both about advance directives specifically but also about the interaction between international consensuses and localised traditions and expectations.

     Of particular interest, and importance, is that the editors deliberately sought to cast their net widely in terms of defining ‘Asia,’ the book taking in countries as diverse as Israel, Saudi Arabia and the Philippines. This has the huge advantage of making clear that it is just as reductionist to talk about an ‘Asian’ approach to issues around advance directives as it is to talk about a ‘Western’ approach: and one only needs to compare the chapters about Saudi Arabia and Pakistan to understand that it is equally reductionistic to talk about an Islamic approach to such issues. Further, as it is impossible to talk about advance directives without talking about the framework within which they sit, the book also serves as a fascinating tour d’horizon of end of life decision-making more broadly in each of the jurisdictions.

     In the discussion that I did with the editors for my website, they (rightly) squirmed when asked to highlight jurisdictions which they found particularly interesting; they also (and equally rightly) wanted to emphasise that they wanted the book to stand alone, rather than continually to refer back or across to jurisdictions such as England & Wales. So whilst knowing it is perhaps wrong, I cannot help resist highlighting some of the points that particularly struck me in different chapters and some of the reflections that this Anglo-author had in response):The discussion in Ilhak Lee’s chapter on South Korea of the Boromae Hospital case (page 58), in which the Korean Supreme Court found surgeons guilty as accomplices to murder in a case where a wife obtained the discharge of her husband from hospital because she could not continue to pay for his care, [2] the Supreme Court considering that his wife’s decision could not be regarded as an authoritative proxy decision, and that the surgeons had not taken proper measures to prevent an anticipated harm;

     Daniel Fu-Chang Tsai’s discussion (in the chapter on Taiwan, pages 88-89) of the 2019 Taipei Declaration of Advance Care Planning, which expressly recognises that family members and other care givers have needs that should be attended to as part of the patient’s care;

       The observation in Kelly Amal Dhru and Ravindra B Ghooi’s chapter on India (pages 116-120) that the introduction of advance directives in the end of life context has been accompanied by far more controversy than their introduction in the psychiatric context by the Mental Healthcare Act 2017 (in complete contrast, it might be noted, to the situation in jurisdictions such as England & Wales). The same chapter also contains a fascinating discussion of the way in which the courts in India appear to view the family as part of the problem, rather than (potentially) as part of the solution, in decision-making;

      The detailed analysis of what Islamic law requires, or is considered to require in Saudi Arabia (by Z. Abbas Syed, E. Shamshi-Gookshi and A. Parsapoor) and Pakistan (by Mohammed Asim Beg, Erfan Hussain, Noshin Khan, Asma Hamid and Muhammad Atif Waqar), albeit that this is one area where it would have been very interesting had the authors of the respective chapters expressly commented on the interpretations advanced in the other, as this would have been a conversation I would very much liked to have been privy to;

       The relevance of resignation to uncertainty within Filipino culture analysed by L.D. de Castro, R.B. Manaloto, and A.A.L. Lopez (pages 192-5), a cultural phenomenon which it might be thought is more widely spread than just within the Philippines (and the Filipino diaspora), and might well be thought to play at least some part in the universally low uptake of advance decisions in every jurisdiction;

       The (tantalisingly brief) discussion in Bo Chen’s chapter (at pages 240-1) of the role of voluntary guardianship amongst the LGBT community in mainland China as a way in which to seek to secure recognition of the place of a partner within decision-making;

      The emphasis placed in Japan (discussed by Reina Ozei-Hayashi, Futoshi Iwata, Satoshi Kodama and Miho Tanaka, at pages 248-249) on consensus in healthcare decision-making, including the family as part of the consensus group. Whilst this might be thought to sit at odds with the focus on the patient in ‘Western’ systems, one might ask how often decisions to honour advance decisions to refuse treatment are honoured where (at the point that the decision is ‘active’) there is a mismatch between any indications that the patient may be able to give, the view of the family and the view of the medical team.

      What is set out above are but a few of the points at which I found myself reaching for a Post-It note to put on the (curiously shiny) pages of the hardback, but hopefully serve to indicate just how many different directions it would be possible to jump from the springboard of the book’s chapters.

      Structurally, the editors have divided the jurisdictions that are covered into three categories: (1) well-regulated; (2) semi-regulated; and (3) non-regulated. However, as the editors make clear (page 13), “well-regulated” simply means that there is a clear set of rules, rather than that those rules actually work effectively. Miriam Ethel Bentwich (for instance) making a powerful case in relation to Israel (a supposedly “well-regulated” jurisdiction) that “the restrictive nature and supposed strict regulation of Israeli advance directives have actually led to their under-regulation” (page 19). As developed in the final chapter, the differences in approach represent different aspects of “generative accommodation” to “an emerging international consensus in healthcare practice and regulation regarding the value of an AD and its underlying ethical principle of respect for patient autonomy” (page 332). Cheung and Dunn’s view, one which appears amply borne out on the evidence in the preceding pages, is that this a better way to explain the growing place of advance directives in different shapes in the jurisdictions they examine than indigenous development. The concept of generative accommodation, with its requirement for acute sensitivity to local traditions, is a helpful explanatory and descriptive tool for other areas where change is afoot: an obvious one being in relation to the Convention on the Rights of Persons with Disabilities. It is also one which is helpful in prompting reflection as to whether a failure to respond to the asserted consensus in the ‘required’ fashion simply because of wrong-headedness or bias, or is it because the accommodation reached actually represents the ‘right’ result for that particular jurisdiction at that point in time.

      The only, minor, reservation that I have about this book is that, whilst the editors are at pains (page 14) to make clear that they did not seek to encourage their contributors to advance a case that advance directives are ‘a good thing,’[3] the tenor of each of the chapters suggests that the contributors did, in fact, appear to consider this to be the case. It would have been interesting, if only to give shade to the light, to have had a chapter written by a contributor who appeared to have reservations about them, as it is clear that many people, in many of the jurisdictions covered, do indeed have reservations. However, I anticipate that it might well have proven challenging to find contributors with such views to take part in such a project, and even those contributors who are clearly most concerned to advance the cause of advance directives within their own jurisdiction give more than enough material relating to that jurisdiction to enable the reader to gain what appears to be a rounded picture of the position.

     Overall, therefore, this book comes highly recommended, and, as a real bonus, it is open access in its electronic form, thereby making its insights readily available to all.

      [Full disclosure: I was involved in the conference in 2020 from which the book took its genesis; I was also provided with a review copy by the publishers. I am always happy to review books in the fields of mental capacity, mental health and healthcare ethics and law (broadly defined)]