Thursday, December 5, 2019

New Book Celebrating 50th Anniversary of HKU Law (HKU Press)

A Special Standing in the World: The Faculty of Law at The University of Hong Kong 1969-2019
Christopher Munn
November 2019, 360 pp.
Description: The history of the Faculty of Law at HKU is in many ways the history of the law in modern Hong Kong. Founded in 1969, the Faculty has helped transform a colonial legal backwater into a flourishing jurisdiction, in which Hong Kong maintains its common law system as a special administrative region of the People’s Republic of China. The Faculty has played a vital part in fostering a legal profession firmly rooted in Hong Kong, functioning in both Chinese and English. Its early teachers pioneered scholarship on Hong Kong law. Its graduates now make up over half of Hong Kong’s Judiciary and legal profession. Over the years the Faculty has earned worldwide recognition as a centre of research in subjects ranging from human rights to financial regulation.
     Published to mark the Golden Jubilee, this book traces the Faculty’s rise from humble origins to its position as one of the world’s leading law schools. Drawing on archives, publications and interviews, the book explores the growth of the Faculty against the momentous events of the past 50 years. The first two chapters examine the Faculty’s prehistory when, for over a hundred years, most of Hong Kong’s lawyers were trained in England. The remaining six chapters explore alternately the Faculty’s internal history and its role in building Hong Kong’s modern legal system.
About the Author: Christopher Munn is the author of Anglo-China: Chinese People and British Rule in Hong Kong, 1841–1880 (HKUP, 2008) and a co-editor of the Dictionary of Hong Kong Biography (HKUP, 2012) and Meeting Place: Encounters across Cultures in Hong Kong, 1841–1984 (HKUP, 2017).
Reviews:
‘Dr Munn traces the Faculty of Law’s fascinating journey over half a century. From a modest beginning, it has developed into one of the finest law schools in the world. The story is told in the context of the historic events and momentous changes of this era. This illuminating and outstanding work deserves to be widely read.’ The Hon. Andrew Li, First Chief Justice of the HKSAR (1997–2010) 
‘Christopher Munn’s history of the Faculty of Law is more than the history of a remarkable educational institution—it is a history of how the law and legal culture in Hong Kong developed from modest mid-nineteenth-century colonial beginnings to its present pre-eminent position. Clearly composed in lively prose, this book is essential reading for anyone who seeks to understand modern Hong Kong and its place in the world today.’The Rt Hon. Beverley McLachlin, Chief Justice of Canada (2000–2017)

Wednesday, December 4, 2019

Amanda Whitfort Speaks at the 11th Asia for Animals Symposium in Dalian, China

By Annette Gartland
Changing Times
21 October 2019
The 11th Asia for Animals (AfA) symposium, which has just taken place in Dalian, China, was focused on how laws can be used creatively to protect nonhuman animals. Delegates heard presentations from lawyers, academics, and activists from Asia, the United States, Australia, and Europe. More than four hundred people attended AfA 2019. They ranged from people working on the ground in rescue and rehabilitation organisations to animal advocates, veterinarians, scientists, government officials, scholars, and those working in education. The biennial event was this year co-organised by the Animals for Asia Coalition and the Vshine Animal Protection Association, based in Dalian.
     Speakers from China emphasised that local regulations in the country are very effective, but said that the Wildlife Protection Act was about using animals as resources rather than protection and welfare, and needed further revision. 
    National anti-cruelty legislation is urgently needed, speakers said. China’s wildlife protection legislation was revised in 2016 and now covers hunting, and selling wildlife items on the Internet. There are strong deterrent penalties and a new draft list of protected species, but the law allows commercial trade in protected wildlife and their products. Previous to the new draft, China’s wildlife conservation list had only been updated once since it was released in 1989. In 2003, the authorities upgraded the protection status for musk deer.
     Amanda Whitfort, who teaches Criminal Litigation and Animal Law at the University of Hong Kong’s Law Faculty, told AfA delegates about the use of public interest litigation in China in animal welfare cases. This, Whitfort says, has the capacity to impact very significantly on the way animal abuse is dealt with in China. China’s public interest litigation framework is extremely advanced, Whitfort says, and it is growing and gaining strength.“Since its formal adoption in 2012 Chinese environmental public interest litigation has gone beyond just recognition of individuals’ rights to sue for environmental harms and now it gives procuratorates the power to initiate actions against government officials for abuses of animals when they are combined with criminal prosecutions,” she told delegates... Click here to read the full text.

Tuesday, December 3, 2019

Human Rights Lawyer Patricia Ho Joins HKU Law's Clinical Legal Education Programme


HKU Faculty of Law warmly welcomes Mrs Patricia Ho who joins as a Principal Lecturer in the Clinical Legal Education Programme. Patricia is a public law practitioner who has been involved in many judicial review and personal injuries cases involving human trafficking and refugee matters, migrant worker rights, transgender rights, disability rights and child and family rights. She is the managing and founding partner of Patricia Ho & Associates and founder of the non-profit Hong Kong Dignity Institute. 
    Patricia is a co-author and presenter of the Crimes (Amendment) (Modern Slavery) Bill 2019 which has been introduced into Hong Kong Legislative Council in the same year. She regularly provides trainings and seminars to the NGO and legal community in Hong Kong on avenues to protect victims of human trafficking and forced labour. In 2018, she was a co-organiser and panelist at the International Conference on Combatting Human Trafficking. She is an advocate for a trauma-informed approach to client management. She was trained in Post Trauma Psychosocial and Mental Health Interventions for the Refugee Population, and in 2015, was invited to be a keynote speaker at the Symposium on Mental Health and Psychosocial Wellbeing of Conflict-Induced Displaced Persons in Hong Kong. Patricia’s pro bono work has been recognized by the Law Society of Hong Kong through being awarded with the Pro Bono and Community Work Recognition Gold Award for six consecutive years as well as the Distinguished Pro Bono Service Award in 2017 and 2018.

Monday, December 2, 2019

Fu Hualing on the Power to Detain in a Dual State Structure (Made in China Journal)

"The Power to Detain in a Dual State Structure"
Fu Hualing
Made in China Journal
Vol. 4, Issue 3, Jul–Sept 2019, pp. 70-74
In liberal democracies, detention power tends to converge on three issues: first, differences in social/political status are no longer relevant, and common legal rules apply to all types of detention based on the fundamental right of personal freedom; second, political mechanisms and legal rules are in place to reduce state arbitrariness in depriving citizens of personal freedom; and finally, detention is subject to enhanced juridical control, with access to lawyers and judicial scrutiny serving as the litmus test for its legality. Indeed, the transition from a police-centric legal system to a court-centric one is often regarded as the hallmark of genuine democratisation, and the degree to which personal freedom is protected offers a meaningful index to measure the status of rule of law in a particular society. (Cao et al. 2014).
    After four decades of legal reform in China, what kind of progress has the country made in controlling the power to detain, reducing its arbitrariness, and making the repressive arm of the state legally accountable? Has the fear of police power, in particular the proverbial panic of a knock at the door in the middle of the night, been reduced or increased? A general answer to these questions is that there are changes and continuities, as the power to detain is largely defined and shaped by China’s regime type... Click here to read the full article.

Launch of The Hong Kong Journal of Law and Public Affairs (HKJLPA)

Marking the 20th anniversary of the BSocSc (Govt & Laws) & LLB Programme (GLaws) at HKU, the Hong Kong Journal of Law and Public Affairs (HKJLPA) was launched in 2019 as the annual journal of the Government and Laws Committee (GLC). The theme of the inaugural volume is “Confucian Democracy and Constitutionalism”, which features interesting contributions from experts all over the world exploring the theory and practice of operating Western political institutions such as representative democracy and constitutionalism in the context of Confucian values and norms in East Asian jurisdictions. HKJLPA also features a review of GLC’s initiatives, and the achievements of GLaws students over the past year.
ABOUT THE HKJLPA
The HKJLPA is the first student-edited law and political science journal in all of Asia, established by the Government and Laws Committee, Politics and Public Administration Association SSS HKUSU (GLC) with full support from the Bachelor of Social Sciences (Government and Laws) and Bachelor of Laws Programme at HKU in 2018. 
      The Journal publishes articles in both English and Traditional Chinese from researchers, teachers, practitioners, and students all over the world. It accepts submissions in all areas broadly related to the intersection between law and politics, including but not limited to comparative constitutional law and politics, international law and relations, jurisprudence and political philosophy, and administrative law and public administration. 
     As the GLC’s in-house flagship publication, the Journal is committed to promoting a stronger understanding of cutting-edge issues that lie at the nexus of law and politics at the international and domestic levels, and to offering a robust platform for the exploration of ideas that will guide how societies are organised and governed. 
ABOUT THE INAUGURAL VOLUME 
The theme of the inaugural volume is “Confucian Democracy and Constitutionalism”. For decades, scholars and practitioners have been theorizing and debating possible models for Western political institutions such as representative democracy and constitutionalism to operate in East Asian countries in which the traditional Confucian culture is deeply embedded within. This interdisciplinary study features essays from leading political science, philosophy and legal scholars that engage these theories and debates through investigating multiple East Asian jurisdictions such as China, Vietnam and Korea to further illuminate our understanding on the Region’s political and constitutional future. This inaugural volume also features a review of the GLC's initiatives over the past year, including various forums, visits to legal and political institutions and career events.   The volume can be downloaded here.
     The Journal has been produced and edited under the supervision of Dr Eric Ip, and submissions from internationally renowned legal scholars (particularly from the fields of comparative constitutional law and political theory) including Professor Andrew Harding (NUS), Professor Daniel A. Bell (Shandong U), Dr. Jaclyn L. Neo (NUS), Dr. Bui Ngoc Son (CUHK) and Professor Sungmoon Kim (CityU) among others have been accepted.

Friday, November 29, 2019

HKU Law Welcomes Dr Xu QIAN (Post-doctoral Fellow in Belt and Road Law)

HKU Law warmly welcomes Dr Xu QIAN who joins the team of scholars researching legal issues related to China's Belt and Road Initiative. Dr Qian explores issues at the intersection of international economic law and human rights. Her work also deals with environmental law, dispute settlement, constitutional law and increasingly Greater Bay Area legal cooperation. Her publications include “Rethinking Judicial Discretion in International Adjudication” Connecticut Journal of International Law (2020); “Is It Finally Time for Asia’s Free Trade Agreements? The ASEAN Present and the RCEP Future” Asian Journal of International Law (2019); “Challenges of Water Governance (and Privatization) in China” Georgia Journal of International and Comparative Law (2018); "Trans-Pacific Partnership: A World Trade Revolution?,” APEC Currents (2016). She contributes to Asia Law Portal which is the leading source of information and insights on the practice of law in the vast Asia-Pacific region. Dr QIAN is currently working on a new article, which critically examines the application of the proportionality principle across two decades of investment disputes.
    Dr Qian was a scholar in residence at The Hague Academy of International Law in 2019 for which she received the Academy’s prestigious “Doctoral Scholarship.” She has presented her work at many academic events including the International Water Association (IWA) Annual Conference (2016), Asia FDI Forum II, III and IV (respectively, May 2016, March 2017 and March 2018), and Loyola School of Law conference “Rule of Law in the 2030 Sustainable Development Agenda”. Dr Qian holds a BA from Heilongjiang University (2012), an LLM and PhD from CUHK Law (respectively 2014 and 2019), and a post-graduate diploma from the Academy of International Trade and Investment Law (2015).

Thursday, November 28, 2019

New Study on Unconscious Bias and Implications for Equality in Hong Kong and Asia (WSRC & CCPL)

Puja Kapai
Women’s Studies Research Centre (WSRC) & Comparative and Public Law (CCPL)
September 2019
Description: In a project funded by the Equal Opportunities Commission, Puja Kapai conducted a study into the levels of unconscious bias on the grounds of gender and race in Hong Kong.  She examined who harboured which types of unconscious biases, whether such biases serve as predictors of discriminatory behaviour and whether it is possible to ameliorate these unconscious biases.  Summary of the results in conclusion: The results of this research study provide groundbreaking insights into the prevalence, nature and extent of unconscious bias among different social groups as well as the variables which influence such biases negatively or positively in the context of Hong Kong. Furthermore, the study demonstrates the effectiveness of specifically designed interventions in terms of reducing particular biases, while outlining the more challenging categories of unconscious bias which require more complex intervention models to address concretely. The key research findings of the 180-page report are: 
(1) Unconscious gender and racial biases are widespread in Hong Kong across diverse social groups.
(2) Unconscious bias tends to be stronger in the case of racial biases compared with gender biases. 
(3) The level of racial bias also varies depending on target group with South Asians being more susceptible to higher levels of bias relative to Mainland Chinese for the most part.  
(4) The level of gender bias in relation to sciences is significantly higher when compared to gender-role stereotypes pertaining to career.  
(5) The IAT itself has the effect of mitigating against certain types of unconscious bias but may have the opposite effect in respect of deeply entrenched biases.
(6) Interventions can and do work. However, the effectiveness of interventions varies depending on the type of bias, targets of discrimination, social groups targeted by the intervention, their social networks and exposure to outgroups.
(7) Some biases (racial biases) are more entrenched than others (gender-based biases) in the Hong Kong context and interventions have limited or little impact in reducing them.
(8) One-size-fits-all solutions do not work. There is a clear and potent need for intervention tools to be well-tailored to different groups and contexts and fine-tuned for different types and manifestations of biases. 
     Importantly, this study is the first of its kind to examine the manifestation of unconscious bias as embedded in an Asian context. The findings demonstrate that unconscious bias clearly exists and is prevalent in our society. However, in Hong Kong, it presents in specific ways judging from the distinct findings pertaining to certain racial categories and gender stereotypes in relation to career and sciences. Moreover, it reveals the significance of social context, networks and the particular background factors on bias levels. While intervention by way of raising awareness about the existence of different types of unconscious bias is found to mitigate biases, it is not sufficient in and of itself to reduce these in concrete terms or in the longer-term. Furthermore, if delivered carelessly without due consideration of the environmental context in which 109 participants are engaged and their background or networks, or a failure to debrief participants properly in terms of what the scores mean relative to prejudice levels, the intervention can have a detrimental effect, in turn, exacerbating biases. 
     These findings bear important implications for future of research and design considerations pertaining to unconscious bias and the implementation of interventions in Hong Kong in across different sectors, most notably, corporate, high school and higher education sectors.

Wednesday, November 27, 2019

Eric Ip Comments on the Hong Kong Highspeed Railway Station Judicial Review Decision (Public Law)

"Hong Kong - Mainland Chinese Enclave in Highspeed Railway Station held Constitutional, Leung Chung Hang Sixtus v President of the Legislative Council [2019] 1 HKLRD 292" 
First Published 2019
Abstract: A parcel of land in the heart of the Hong Kong Special Administrative Region has been ceded to mainland China in all but name under the Guangzhou-Shenzhen-Hong Kong Express Rail Link (Co-location) Ordinance (Cap.632), becoming the first mainland enclave, known as the "Mainland Port Area," inside Hong Kong in which the full force of socialist criminal and national security law will apply to the exclusion of the Special Administrative Region's common law system for all practical purposes. This Case Comment focuses on the Court of First Instance's judgment in Leung Chung Hang Sixtus v President of the Legislative Council [2019] 1 HKLRD 292 that the Ordinance and the Mainland Port Area it set up are constitutional. This Comment exposes several logical shortcomings in the judgment, including its argument from silence that the Basic Law does not intend to prohibit the Mainland Port Area, which can equally be used to argue that the Basic Law does not intend to allow the same. It gives due credit to the Court in upholding a common law approach in constitutional and statutory interpretation. And it argues that, paradoxically, in reviewing the Mainland Port Area's constitutionality, the Court has tacitly affirmed that the Hong Kong Judiciary necessarily retains a kind of constitutional jurisdiction over the Area that had not been ousted by the Ordinance.

Saturday, October 12, 2019

RTHK and HKU Law Faculty Co-Produce “A Legal Journey” (6-episode TV docudrama in English and Cantonese)

The rule of law is a core value of Hong Kong as well as a cornerstone of the city’s prosperity. To uphold this value and safeguard our system, the Faculty of Law has nurtured not only members of the legal profession but also committed community leaders. Through the 6-episode TV docudrama “A Legal Journey” (現身說法), co-produced by RTHK and the Faculty of Law as one of its 50th Anniversary celebration activities, let us trace the journey of local legal education in the past five decades and how it contributes to the legal system and the rule of law in Hong Kong when meeting the challenges of a rapidly changing environment.

 

To mark the occasion, a Premiere of the programme was held at JC Cube, Tai Kwun on 11 March 2019, which was attended by Professor Xiang Zhang, President and Vice Chancellor of the University, representatives from RTHK, members of the profession, many friends and alumni, staff members and students.  “A Legal Journey” was first aired from March 24 to April 28 on RTHK31 and also on TVB Jade from March 27 for six consecutive weeks.  To view all the episodes recorded in Cantonese, click here. The English version was aired from 15 August 2019 on RTHK31 and can be viewed here.  See also the HKU Law 50th Anniversary website.

Friday, October 11, 2019

Weixia Gu on the Recognition and Enforcement of Judgments in Civil and Commercial Matters in China (new book chapter)


"China"
Weixia Gu
in Anselmo Reyes (ed.), Recognition and Enforcement of Judgments in Civil and Commercial Matters (Hart Publishing 2019)
Chapter 2, pp. 31-50
Introduction: The unparalleled economic growth of the People's Republic of China has resulted in a paradigm shift in its legal regime.  Once a closed market to the world, China now faces an unprecedented surge of international business and movement of global capital into its domestic market in light of its immense economic growth in the past 40 years.  As a result of this growth, the internationalism of business in China requires the domestic courts to accommodate private international law practices such as allowing foreign judgments to be recognized and enforced in the domestic courts: a clear indicator of globalization and the development of China's economy. 
     An important step China has taken in the past few years is to improve efficiency in recognizing and enforcing foreign judgments.  Specifically, the salient shift to a more liberal application of the reciprocity principle, the signing of the 2005 Hague Choice of Court Convention (2005 Hague Convention) and the growing number of bilateral treaties on judicial assistance are clear indicators of China's recent willingness to improve commercial certainty for the parties involved, to promote fairness for both domestic and foreign litigants, and to ensure the global movement of judgments, resulting in increased investor confidence and further economic growth in China.
     This chapter will analyse current theory and practice with respect to the recognition and enforcement of foreign civil and commercial judgments in China.  There are three regimes that will be analysed: (1) the existing Sino-bilateral judicial assistance treaties on civil and commercial matters; (2) in the absence of a bilateral treaty, the application by the Chinese courts of the principle of 'reciprocity' while taking account of procedural and substantive concerns specific to China; and (3) the potential impact of the 2005 Hague Convention signed by the Chinese government in September 2017...

Thursday, October 10, 2019

Kelley Loper on Human Rights and Substantive Equality: Prospects for Same-Sex Relationship Recognition in Hong Kong (N Carolina J Int'l L)

Kelley Loper
Spring 2019, Volume 44, No. 2, Article 4
Introduction: This Article considers judicial approaches to the adjudication of the rights of Lesbian, Gay, Bisexual, and Transgender (LGBT) persons in the Hong Kong Special Administrative Region of the People’s Republic of China (Hong Kong). Hong Kong provides a notable case study of litigation strategies and court responses in a jurisdiction open to international human rights law. Sodomy was decriminalized in 1991 under the former British colonial regime, and, since 2006, Hong Kong courts have decided a number of cases concerning a range of issues including transgender marriage, different ages of consent for vaginal and anal intercourse, other discriminatory criminal provisions, restrictions on television broadcasts about relationships between gay men, the rights of incarcerated transgender persons, and the rights of same-sex couples. Other cases are still working their way through the system and future challenges are anticipated as advocates continue to pursue a persistent litigation strategy... Click here to read the full text. 

Tuesday, October 8, 2019

Johannes Chan on a Dynamic Relationship between the Judiciary in a Liberal Society of Hong Kong and a Socialist-Leninist Sovereign State (Current Legal Problems)

First Published 27 September 2019
Abstract: Hong Kong provides a unique case study on the roles and functions of the judiciary within an authoritarian or semi-authoritarian sovereign. Under the unique constitutional arrangement in Hong Kong, a liberal common law judiciary in a highly sophisticated modern metropolis is encapsulated within a Socialist-Leninist sovereign regime that ideologically rejects separation of powers, independence of the judiciary and values of individual liberalism. Notwithstanding the sharp ideological differences and the greatly asymmetrical distribution of social, economic and political powers in this One Country, Two Systems constitutional model, it is argued that the relationship between the courts and the authoritarian sovereign power is and has been complex and dynamic. The Hong Kong courts have been able to create their institutional space by establishing an impressive liberal constitutional common law, but that constitutional space is shrinking as the over-zealous sovereign is increasingly assertive of its views on matters that it perceives to be affecting state interests. By examining a series of controversial decisions, this paper argues that there are reasons that the courts could, with creativity and sensitivity, maintain a delicate and balanced relationship with the sovereign without succumbing to the political pressure, but that the greatest threat of independence of the judiciary comes from within the judiciary in internalizing the values of the socialist state.  Click here to read the full article.

Monday, October 7, 2019

Pursuing Democracy in an Authoritarian State: Protest and the Rule of Law in Hong Kong (Special Dialogue and Debate in Social & Legal Studies)

"Pursuing Democracy in an Authoritarian State: Protest and the Rule of Law in Hong Kong"
First Published 26 September 2019
pp 1-39
Introduction: Democrats in the Dock by Scott Veitch
On 14 December 2018, the month-long trial of nine co-accused in the Occupy Central (OC) trial in Hong Kong came to a close. They were being prosecuted 4 years after the democratic protests they had inaugurated, charged with various public order, conspiracy and incitement offences at common law. Facing up to 7 years in prison for their leadership role in the mass pro-democracy civil disobedience movement that occupied central Hong Kong for 79 days in 2014, the nine included a Christian pastor, a sociology professor, a legislator and barrister, and the legal academic Benny Tai. In his closing submission to the court, Tai quoted from a judgment of Lord Hoffmann which stated that ‘civil disobedience on conscientious grounds has a long and honourable history’, and made the case for its value in progressing justice and enhancing the principle of the rule of law. ‘If we were to be guilty’, he concluded, ‘we will be guilty for daring to share hope at this difficult time in Hong Kong. I am not afraid or ashamed of going to prison. If this is the cup I must take, I will drink with no regret’...

Challenges to the Rule of Law in a Semi-Authoritarian Hong Kong by Benny Tai 
Abstract: Hong Kong has been recognized for its well-established rule of law (ROL). After the Umbrella Movement in 2014, the Chinese Communist regime adjusted its strategy towards Hong Kong and closed the road to democracy. With the end of the era of semidemocracy, the governing system in Hong Kong is now going in an authoritarian direction. In this new era of semi-authoritarianism, Hong Kong’s ROL faces the most serious challenges. The meaning of the ROL is now being redefined by the Chinese Communist regime. Hong Kong is fighting a battle on the discourse of the ROL. The legal culture of Hong Kong people may not be strong enough to withstand such an ideological encroachment. The legal professionals in Hong Kong play a critical role in defending more advanced understandings of the ROL which is not just about maintaining social order and compliance with law but concerns constraints on arbitrary powers and protection of the civil and political rights of citizens. There are worries as well as hopes. One thing is sure, the battle will be long and tough.

One Country, Two Systems: A Critical Analysis of Benny Tai’s Account by Fu Hualing 
Few constitutional scholars write like Benny Tai does. As a leader in Hong Kong’s democracy promotion and a constitutional scholar, Tai writes to reflect his democratic practices and, more importantly, to offer a road map for Hong Kong’s constitutional odyssey. As one of the chief architects of the powerful Occupy Central Movement (OCM) that shocked the world and a coordinator for strategic voting among pandemocratic groups, Tai writes as a legal practitioner and, for many in his community, a spiritual leader of sorts, in a passionate pursuit and a desperate search for solution. His work demonstrates that Hong Kong society has acquired sophisticated democratic thinking, but it also shows its weaknesses in its conceptualization of Hong Kong’s democratic journey in these unchartered waters. Tai should be taken seriously and his thinking, because of its importance, should be subject to rigorous scrutiny. I will take issue with Tai’s essay on its normative framing of authoritarianism, its positive analysis of the contention between Hong Kong and the Central Authority in Beijing and the future strategies it plans...

Response to Benny Tai by Richard Cullen
I am pleased to respond to Benny Tai’s engaging contribution to the fundamental discussion about the future of the Hong Kong Special Administrative Region (HKSAR) within the People’s Republic of China (PRC).
     Emma Woodhouse, one of Jane Austen’s most remarkable characters, concludes a particular analysis of life around her with the observation that what she has just said ‘is the exact truth’. Regardless of how firmly grounded Miss Woodhouse’s claim may be, in this discussion there are, I believe, no exact truths. Here we are absorbed, instead, in a debate based on sincere, differing, extensive reflections.
     It is clear that the PRC is poorly ranked internationally (and within the West, especially) for its failure to apply (Western-hewed) Rule of Law (ROL) governance principles – and for the continuing grim examples within the PRC of abuse of State power.1 However, this perspective, by itself, provides a measurably incomplete picture of the broad political-economic operation of the PRC...   Click here to read the full text. 

Sunday, October 6, 2019

Call for Papers: Special Issue on Street Protests and Human Rights (Asia-Pacific Journal on Human Rights and the Law)

Asia-Pacific Journal on Human Rights and the Law
Centre for Comparative and Public Law

Call for Papers

Special Issue on Street Protests and Human Rights

In 2019 Hong Kong saw unprecedented confrontations between police and protesters sparked by human rights concerns with a proposed amendment bill that would have enabled the surrender of fugitive offenders to other parts of China.  Street protests leading to clashes with the police also flared up in Moscow, Kashmir, West Papua, Cape Town, Mexico, Zimbabwe, and Honduras. Police powers and public order measures can have severe consequences for protesters, journalists, and other members of the public.  These recent events have given rise to many important human rights law issues that may require the attention of courts, tribunals, legislative bodies, governments, and international organisations. To contribute to a global discussion of these issues, the Asia-Pacific Journal on Human Rights and the Law is soliciting new scholarship on the human rights law issues of street protests in the Asia-Pacific or of potential interest to the region, particularly in terms of international standards.  An editorial committee of experts will peer review submitted papers and the best ones will be published in a special issue of the journal planned for issue 1 of volume 21 (2020). 
  Established in 2000 and now based at The University of Hong Kong, the Asia-Pacific Journal on Human Rights and the Law is the leading law journal on human rights in Asia.  It has published influential articles on important human rights issues occurring in most Asia-Pacific jurisdictions.  Two issues of the journal are published each year. Abstracts of articles are indexed on Scopus and searchable on Westlaw.  Full text is available on BrillOnline, EBSCO, and HeinOnline. The journal’s website is https://brill.com/view/journals/aphu/aphu-overview.xml.
  Submission instructions. For the special issue, papers should be no longer than 12,000 words (inclusive of footnotes).  Please follow the OSCOLA (4th edn) standard for the citation of legal authorities. Email papers to apjhrl@hku.hk.  For papers to be considered for the special issue, they must be received by 31 January 2020.

                                                             Editors-in-Chief

Simon N. M. Young                                     Kelley Loper
Professor                                                        Associate Professor
Faculty of Law                                               Faculty of Law
                         The University of Hong Kong                    The University of Hong Kong

Saturday, October 5, 2019

Law and Humanities Summer School, The University of Hong Kong, 8-13 June 2020 (Applications Deadline: 6 Jan 2020)

Law and Humanities Summer School

8-13 June 2020

ABOUT
The Faculty of Law and the Faculty of Arts at the University of Hong Kong will hold its first law and humanities summer school, 8-13 June 2020. This week-long event is open to post-graduate research students and early career academics from any discipline, based anywhere in the world, who are working at the intersection of law and the humanities. Summer school participants will take two intensive seminar series led by Alison Young, Francine V. McNiff Professor of Criminology at the University of Melbourne and James Martel, Professor of Political Science at San Francisco State University. In addition, there will be sessions on interdisciplinary methodologies, research and writing skills, as well as cultural and social events. This is a fantastic opportunity to work with two of the world’s leading law and humanities scholars, to develop your research and writing skills, expand your knowledge and learn from your peers in the global community of law and humanities researchers.

The seminar series

James Martel: How the law can undo what the law does
This course will consider the notion of law when it is not merely understood in its black letter, rationalist sense. The opposite of such a form of law is not necessarily chaos or nihilism but can have its own creative, contingent and positive forms. Thinking about law in this other, anarchist and decentralized sense allows us to imagine what is common to all forms of law even laws that serve to upend and contest the law as it is usually considered. In thinking about this kind of law, we will engage with a range of thinkers including Walter Benjamin, Giorgio Agamben and Fred Moten.

Alison Young: Imagining Justice in the City
Increasing urbanization means that more and more people live and work in urban centres, and increasing urban populations present particular challenges for social organisation and urban planning, but also for law: how do we imagine a just city in times of increasing population density and social inequality? In this course, we will examine a range of ways of thinking about justice in the city, including concepts of affect, urban encounters, the precariat, ambience and atmosphere, and the lawscape, drawing on the work of Ananya Roy, Sarah Keenan, Ben Anderson, Andreas Phillippopoulos-Mihailopoulos, Guy Standing, Peter Adey and others. A range of case studies will be utilised, including debates around urban aesthetics (and how they are regulated by law); how law responds to visible precarity; and the relationship between city and citizenship. 

Summer school participants will take both seminar series. Participants will be sent reading materials in advance. All reading and preparation must be completed before the summer school begins.

HOW TO APPLY
The summer school is open to post-graduate researchers and early career academics working in any discipline. Your current work should engage with law and the humanities, broadly conceived, and may include (though need not be limited to): legal, critical, cultural or political theory; law and literature; law and film; law and aesthetics; legal history; post-colonial studies; feminist legal studies; critical legal studies; critical race theory; the anthropology of law; law and geography.

Please complete the application form by clicking here

Deadline for applications: 6th January 2020

For any inquiries please contact Dr Daniel Matthews (Faculty of Law, HKU) at danmat@hku.hk.

Peter Chau Comments on Hong Kong's New Anti-Mask Regulation

The Chief Executive in Council made the Prohibition on Face Covering Regulation (hereafter referred to as “the Regulation”) under the Emergency Regulations Ordinance (Cap. 241) yesterday. The regulation came into force at midnight, 5 October 2019. 
     It is regrettable that violence has been escalating on the streets. Whatever their legitimate grievances, the violence used by some protesters cannot be justified. However, this short note is not about whether the acts of the protesters are justified. It is concerned solely with the narrow question of whether the Regulation is a good response. I set out my reservations below. 

The offences 
The Regulation, amongst other things, creates two offences. 
     The first offence is created under section 3(2) of the Regulation. To simplify a little bit, a person commits this offence if that person uses any facial covering that is likely to prevent identification while the person is at (a) an unlawful assembly; (b) an unauthorized assembly; (c) a public meeting that is not prohibited by the Commissioner of Police; or (d) a public procession that is not prohibited by the Commissioner of Police. There is a defence of lawful authority or reasonable excuse under section 4. The maximum penalty is a fine at level 4 (HK$25,000 at the time of writing) and imprisonment for 1 year. 
    The second offence is created under section 5(3) of the Regulation. Under section 5(2), a police officer can require a person to remove his facial covering to enable the officer to verify the identity of the person, if that person is in a public place and is using a facial covering that the officer reasonably believes is likely to prevent identification. If that person fails to comply with the requirement, he commits the offence under section 5(3). The maximum penalty is a fine at level 3 ($10,000 at the time of writing) and imprisonment for 6 months. 
     This note will focus on the offence under section 3(2). 

The substantive merits of the section 3(2) offence 
One glaring point about the section 3(2) offence is that it does not only forbid the usage of facial covering in assemblies that are illegal (situations (a) and (b) above). It also forbids usage in meetings and processions that are lawful (situations (c) and (d) above). It is worthwhile to observe that so called anti-mask offences around the world do not always take this form. For example, under sections 65(2) and 66(2) of the Canadian Criminal Code, it is an offence for a person to, without lawful excuse, wear a mask or other disguise to conceal his identity when participating in an unlawful assembly or a riot. However, it is not an offence under the Canadian Criminal Code to conceal one’s identity when participating in a lawful assembly (unless he has an intent to commit an indictable offence – see section 351(2)). A natural question we may ask about the section 3(2) offence is why should it be drafted with such a wide scope? Why should we not adopt the Canadian model and ban facial coverings only in illegal assemblies? 
     In light of the regrettable polarization of the Hong Kong community and the increasing politicization of the business world, one can have a legitimate fear for retaliation (against oneself or one's family members) when one expresses one’s political preferences in public. The section 3(2) offence would, therefore, have a serious chilling effect on our right to expression: it is a very significant cost that must be squarely recognized. Of course, it may be argued that it is a worthwhile price to pay because a narrower offence, like one based on the Canadian model, would be much less effective in deterring violence. But not much evidence has been provided for this by the government. 

Other issues: manner of creating the offences and political reaction 
Two other issues are worth mentioning. First, the manner of creating the offences is obviously less than ideal. Given that anti-mask offences can take many different forms with different degree of abrogation of our rights, the issue of whether (and if so which) anti-mask offences should be created involves a delicate balancing exercise. One may question the wisdom of making the offences hastily without proper consultation. 
     Second, regardless of the substantive merits of the Regulation, I am not sure if it is wise, given the controversial nature of anti-mask law and the extremely hostile attitude the protesters have towards it, to add fuel to the fire at present, if the most pressing need is to restore peace and order. Members of the public and the police who are targets of violence deserve our sympathy; precisely because of this, it is of utmost importance that the government does not choose a means that can be counter-productive: as it is sometimes said, the road to hell is paved with good intentions. Written by Peter Chau.

Friday, October 4, 2019

Alex Green on 'Our Constitution, Accountability and the Limits of the Power to Prorogue' (UK Const L Blog)

"Our Constitution, Accountability and the Limits of the Power to Prorogue"
Alex Green
UK Constitutional Law Blog
26 September 2019
Constitutions do many things. They distribute authority amongst public bodies, enshrine important points of substantive principle, and cement relationships between rulers and the ruled. However, in a more abstract and fundamental sense, constitutions also tell us something about ourselves as political collectives: they express the kind of polity we embody and the kind of people we have come to be.
     Whether written or unwritten, constitutions establish the contours of our political communities. To use Hannah Arendt’s metaphor – borrowed from the Ancient Greek understanding of law as nomos – constitutions are the walls that encircle, define, and defend the everyday aspects of our political lives. It is against this normative backdrop that I want to reflect upon one element of what is expressed by the recent judgement of the United Kingdom Supreme Court in the cases of R (on the application of Miller) v The Prime Minister and Cherry and others v Advocate General for Scotland. This element, which I contend is of fundamental importance to the overall justifiability of our constitutional order, is mentioned in paragraphs 46 and 47 of that judgement. It relates to the governmental accountability, and is expressed in the following terms... Click here to read the full blog post.

Thursday, October 3, 2019

Po Jen Yap & Francis Chung on Statutory Rights and De Facto Constitutional Supremacy in Hong Kong? (Int'l J Const L)

"Statutory rights and de facto constitutional supremacy in Hong Kong?"
Po Jen Yap & Francis Chung
International Journal of Constitutional Law
July 2019, , Volume 17, Issue 3, pp. 836–859
Abstract: Fundamental rights in the Hong Kong Special Administrative Region (Hong Kong) are protected in its Basic Law and the Hong Kong Bill of Rights Ordinance (BORO). The Hong Kong Basic Law enshrines most of the BORO rights, thereby expressly conferring constitutional status on these rights. But there are a number of BORO rights that are not protected in the Basic Law. This article analyzes the cases in which the Hong Kong judiciary has addressed disputes concerning three exclusive BORO rights: (i) the right to participate in public affairs; (ii) the right to a fair hearing in civil cases; and (iii) the prohibition against cruel, inhuman, or degrading treatment or punishment. We will also explain how the courts have conferred de facto constitutional supremacy on all these statutory rights, while simultaneously providing significant leeway and decisional space for the government to craft a considered response in their remedial legislation, thereby promoting a constitutional dialogue between the judiciary and the government on rights-protection in Hong Kong.

Wednesday, October 2, 2019

David Law Participates in "Do We Need the Constitution?" Forum (Harper's Magazine)

Forum: "Constitution in CrisisHas America’s founding document become the nation’s undoing?"
By Donna Edwards, Mary Anne Franks, David Law, Lawrence Lessig, Louis Michael Seidman
Harper's Magazine,
2019, October Issue
America’s Constitution was once celebrated as a radical and successful blueprint for democratic governance, a model for fledgling republics across the world. But decades of political gridlock, electoral corruption, and dysfunction in our system of government have forced scholars, activists, and citizens to question the document’s ability to address the thorniest issues of modern ­political life.Does the path out of our current era of stalemate, minority rule, and executive abuse require amending the Constitution? Do we need a new constitutional convention to rewrite the document and update it for the twenty-­first century? Should we abolish it entirely? This spring, Harper’s Magazine invited five lawmakers and scholars to New York University’s law school to consider the constitutional crisis of the twenty-­first century. The event was moderated by Rosa Brooks, a law professor at Georgetown and the author of How Everything Became War and the Military Became Everything: Tales from the Pentagon.
Participants
  • Donna Edwards is a former member of the U.S. House of Representatives from Maryland and cosponsored a constitutional amendment to overturn Citizens United v. Federal Election Commission.
  • Mary Anne Franks is a professor at the University of Miami School of Law, president of the Cyber Civil Rights Initiative, and the author of The Cult of the Constitution: Our Deadly Devotion to Guns and Free Speech.
  • David Law is the Sir Y. K. Pao Chair in Public Law at the University of Hong Kong and the editor of the forthcoming Constitutionalism in Context.
  • Lawrence Lessig is a professor at Harvard Law School and the author of America, Compromised and Republic, Lost: How Money Corrupts Congress—­and a Plan to Stop It
  • Louis Michael Seidman is the Carmack Waterhouse Professor of Constitutional Law at the Georgetown University Law Center and the author of On Constitutional Disobedience.
Click here to read the full article.

Tuesday, October 1, 2019

HKU Law Welcomes Two New Experiential Learning Teachers

HKU Law warmly welcomes Mr Carter Chim, Senior Lecturer and barrister, who joins the Clinical Legal Education Programme, and Ms Bella Liu, Lecturer, who oversees the Faculty's  Rule of Law Education Programme.
Mr Carter Chim
   Mr Carter Chim has been appointed a Senior Lecturer starting from September 2019. His responsibilities include teaching the Clinical Legal Education courses for upper year LLB  and JD students. His areas of expertise include competition law, constitutional law, administrative law, criminal law and general civil litigation.  Mr Chim is a practising barrister of Denis Chang’s Chambers. After reading political science and law in HKU, he obtained his LLM in Competition Law (Distinction) from King’s College London on the British Chevening Postgraduate Scholarship and the Peter Vine Postgraduate Law Scholarship in 2011. He also obtained his Postgraduate Diploma in Economics for Competition Law from King’s College London in 2016.  In 2015-2016, he was appointed as a legal counsel to the Competition Commission (Hong Kong). He is currently a member of the Hong Kong Bar Association’s Special Committee on Competition Law. In 2016-2019, he taught competition law as a Professional Consultant of the Faculty of Law of The Chinese University of Hong Kong. Since early 2018, he has been appointed as a Non-Governmental Advisor to the International Competition Network.
Ms Isabella Liu
    Ms Isabella Liu has been appointed Lecturer and Deputy Director of the Master of Common Law Programme. She is an MPhil and MCL graduate of The University of Hong Kong. She holds a LLB in Chinese Law (Southwest University of Political Science and Law) and a Graduate Diploma in English and Hong Kong Laws (MMU).  For the past few years, Ms Liu has been administrating the Rule of Law Education (ROLE) project, a major KE initiative of the Law Faculty.  Ms Liu's teaching/research interests include jurisprudence, constitutional law, law and religion, criminal justice and Chinese public law.