Tuesday, July 16, 2019

Kelvin Kwok and Ernest Lim on Optimal Deterrence, the Illegality Defence, and Corporate Attribution (EBOR)

Kelvin Kwok and Ernest Lim
European Business Organization Law Review
First Online: 7 May 2019
Abstract: Companies are often penalised for violating regulatory requirements of various kinds, including those under competition law. Some of the relevant statutes only impose liability on the company, but not its directors or employees, whose wrongdoing must nonetheless be attributed to the company to render it liable. Where a company infringes competition law or another regulatory statute and seeks to recover the penalty by suing its delinquent insiders for breach of duties, should courts allow or prevent the company’s recovery? This article examines this complex issue — which straddles competition/regulatory law, company law, agency law, and private law (in particular the illegality defence) — from a theoretical perspective, and makes two key contributions. First, it advances a refined concept of optimal deterrence, and argues that courts should not deprive the company of its well-established right to sue under company and agency law by interpreting the deterrence policy under competition law or another regulatory statute in light of this concept and recognising the limits of judicial law-making. Second, this article demonstrates for the first time how courts should analyse private law claims arising from corporate regulatory infringements under the ‘range of factors’ approach to the illegality defence, using competition law infringements as an illustration. Under our proposal, courts need not proceed to the stage of balancing competing and incommensurable factors to arrive at the conclusion that companies should not be precluded by the illegality defence from recovering against their delinquent insiders.

Kelvin Kwok on The Concept of 'Agreement' Under Article 101 TFEU (ELR)

European Law Review
2019, Vol 44, p 196
AbstractDespite the importance of the “agreement” concept under art.101(1) TFEU, the concept remains underdeveloped by courts and commentators. This article reconstructs the “agreement” concept based on theories of legal interpretation and contract as well as comparative law insights. It argues, based on a theoretical framework for EU Treaty interpretation and a broad, objective conception of an antitrust agreement, that the objectivity and correspondence requirements for contractual agreements have continuing relevance, while the precision requirement should be appropriately relaxed, for antitrust agreements. Drawing on insights from US antitrust jurisprudence, it advances three concrete proposals emerging from the in-depth comparison between antitrust and contractual agreements, namely that the art.101(1) “agreement” concept embraces tacit collusion, encompasses concerted practices and decisions of associations, and is independent of subjective intentions. 

Monday, July 15, 2019

Amanda Whitfort on Rethinking Criminal Justice Responses in Hong Kong to Wildlife Trafficking (HKL)

Amanda Whitfort
Hong Kong Lawyer
June 2019
In recent years, there has been a dramatic surge in wildlife trafficking around the world. Record numbers of rhino, elephant and tiger have been poached in Africa and India. Around 300 pangolin are poached every day for their meat and scales (used in Traditional Chinese Medicine), making them the most trafficked mammal in the world. All eight species of pangolin were listed in Appendix I of the International Convention on Trade in Endangered Species of Wild Flora and Fauna (CITES) in 2016, despite many people still not knowing what a pangolin looks like. The low risk of detection and high profit to be made from wildlife trafficking has made it attractive not only to opportunistic poachers but to transnational criminal syndicates who oversee supply to growing markets in Asia. Wildlife trafficking is now regarded as the fourth most lucrative black market in the world, after the trafficking of drugs, people and arms. A recent U.S. Government Accountability Office report estimated the annual value of the illegal wildlife trade at US$23 billion. Gram for gram, rhino horn is now more valuable than platinum... Click here to read the full article.

Amanda Whitfort on Animal Welfare Law, Policy and the Threat of “Ag-gag” (Food Ethics)

Food Ethics
First Online: 2 May 2019, 14 pp
Abstract: As has been the case in Europe, increasing consumer demand for higher welfare products has resulted in improved conditions for farm animals raised for slaughter in the USA and Australia. Consumer awareness has been significantly aided by investigations of farm and slaughterhouse conditions by animal welfare organizations, often working undercover. These gains are now under very serious threat. In eleven states in the USA, and three in Australia, new legislation, coined “Ag-gag” law, has been enacted prohibiting public dissemination of material depicting on farm animal use. In both countries, media corporations and private citizens are liable to up to three years’ imprisonment for publishing photographs or recordings depicting the conditions of animals on farms or at slaughter. Controls on the publication of information documenting animal use compromises transparency in the food chain, erodes the accountability of those involved in the management of animals and undermines the case for enhanced legislation and policy reform. This paper describes recent legal challenges in the USA to the constitutionality of “Ag-gag” laws and evaluates “Ag-gag” laws’ impact on animal welfare in agricultural facilities in the USA and Australia.

Sunday, July 14, 2019

Wu and Kepli's Empirical Study on the Ethics and Motivating Values of Law Students in Malaysia (IJBEL)

Dr Richard Wu and Dr Mohd Yazid bin Zul Kepli
International Journal of Business, Economics and Law
April 2019, Vol. 18, Issue 6
Abstract: This article investigates the ethics and motivating values of law students in Malaysia in the final two years of their legal education. Our empirical research examines the demographics of these law students. This is followed by an examination on their responses to diverse ethical dilemmas including conflict of interest, bribery, corruption, and pro bono. The findings reveal that Malaysian law students are strongly inclined to obey to the law and will only give priority to family members’ well-being and family loyalty in extreme situations. The study suggests a relatively weak pro bono culture of Malaysian law students similar to their counterparts in Hong Kong. It was also discovered that an overwhelming number of respondents are not willing to sacrifice family time for their careers. The interest of family remains a strong consideration in making decision.  Click here to download the full article.

Saturday, July 13, 2019

Michael Ng's Law Book for Kids Profiled in KE Newsletter (HKU)

Book talk at Alliance Primary School
"Letter of the Law"
KE Newsletter
Issue 16, April 2019
The book is designed to teach children norms and values as part of their everyday life, and morals, rather than laws, are at the heart of the book.
Law is not often a topic that attracts much interest among young children, as Dr Michael Ng, Associate Professor of the Department of Professional Legal Education, learnt when trying to teach his own two young daughters. He hit on the idea of using not rules and regulations but morality stories set in everyday life to teach children how best to solve their dilemmas and problems.
     The result is his 161-page book in Chinese, filled with illustrations, and called “Kids also know the law,” published by Joint Publishing, and which was nominated for the Hong Kong Book prize in 2017. 
     The book is designed to teach children norms and values as part of their everyday life, and morals, rather than laws, are at the heart of the book, Dr Ng explained.
     “We’re always teaching rules, but the law is more about norms and values than rules,” he said. “It’s easy to impose rules, but hard to infuse norms and values.”
     Dr Ng was inspired by the wish to help his daughters – who were aged 14 and 11 at the time he wrote the book – to find for themselves the best solution to the decisions they were faced with in their daily lives at school, at home and when playing with friends. By relating the moral dilemmas to their daily lives, he aimed to make them more thoughtful and to appreciate the importance of the rule of law.
    The book is set out like a story book, with three main characters. Each chapter deals with a different moral lesson set in social life, school life or family life, and features the social media often used by kids, such as WhatsApp. The stories are adapted from well-known tales such as the Three Little Pigs, but with a different setting or ending to show potential courses of action that a child can take – for example, when the wolf comes, the pigs call the police. The moral authority in the book is the children’s pet, a friendly cat who doubles as a lawyer and gives advice... Click here to read the full article.

Friday, July 12, 2019

Christine Loh and Richard Cullen on How Do Airports Achieve Continuing Success? (IPP Review)

"How Do Airports Achieve Continuing Success?"
Christine Loh and Richard Cullen
IPP Review
3 May 2019
The Top Ten winners of the annual Skytrax World Airport Awards have recently been announced (see “What Makes the World’s Best Airports Tick?”)
     Each of the Top Ten does well because they have fought hard to be the best. They beat out 550 other airports. Being the best was important to them in a hyper-competitive world at a time of shifting geopolitics and geo-economics.
     It takes good long-term planning and significant resources to operate a well-oiled airport. It requires coordinating many tasks well. International passengers appreciate arriving at a pleasant and spacious environment, where you can get to immigration easily and where queues are handled efficiently and quickly. Luggage should come quickly, customs should not be a hassle, and transport should be plentiful and easy to navigate. Departing passengers like quick check-in, security and passport controls, and roomy waiting areas with a large variety of food and amusements. Premium passengers want comfortable lounges. Fast and free WiFi is a must. Artificial intelligence will be making its mark shortly in airports that are installing new equipment to make passenger experience even faster and easier.
     Six of the Top Ten airports are in East and Southeast Asia, one in the Middle East and three are in Europe. There are none in the United States, where airport experience, especially among the major airports, is known for inefficiencies compared to their counterparts in Asia. Denver (#32) is ranked the best American airport. Other major airports are ranked as follows: San Francisco (#48), Los Angeles (#71) and JFK, New York (#74)... Click here to read the full article.

Thursday, July 11, 2019

Eric Ip on Anorexia Nervosa, Advance Directives and the Law (Bioethics)

View Table of Contents for Bioethics volume 33 issue 3
Bioethics
Early View: 29 April 2019
Abstract: This article will explore whether the law should allow people with anorexia nervosa to refuse nutrition and hydration with special reference to the English decision in Re E (Medical Treatment: Anorexia). It argues that the judge in that case made the correct decision in holding that the patient, who suffered from severe anorexia nervosa, lacked capacity to make valid advance directives under the Mental Capacity Act 2005 of the United Kingdom, and that medical procedures that are apparently against her wishes should be carried out for the sake of preserving her life. The law should generally not permit patients with anorexia nervosa to decline nutrition and hydration, precisely because their autonomous ability to make such decisions has been substantially circumscribed by this psychiatric condition.

Wednesday, July 10, 2019

Xin He and Huina Xiao on A Typology of Tax Compliance in Developing Economies: Empirical Evidence from China's Shoe Industry (Law & Policy)

Xin He and Huina Xiao 
Law & Policy 
April 2019, Volume 41, Issue 2, pp 242-266
Abstract: Drawing on fieldwork investigations of shoe manufacturers in southeastern China, this article provides empirical evidence for understanding these businesses’ taxpaying practices. We find that since business taxpayers largely regard tax law as illegitimate, instrumental considerations dominate these taxpayers’ decisions to pay or not pay taxes. We then incorporate “structural opportunities for evasion” and “perceived costs of evasion” to develop a two‐by‐two matrix to understand the following types of behavior: aggressive evasion, obliged compliance, strategic compliance, and reciprocal compliance. We argue that this matrix explains why value added tax fraud is widespread in China while voluntary compliance is rare. It also helps to illuminate compliance more generally in developing economies.

Tuesday, July 9, 2019

RTHK and HKU Law Faculty Co-Produce “A Legal Journey” (a six-episode TV docudrama)

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 is instrumental by nurturing 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 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 the following links: RTHK: https://www.rthk.hk/tv/dtt31/programme/legaljourney.; HKU Faculty of Law: https://50.law.hku.hk/a-legal-journey/.

Monday, July 8, 2019

Professor Yun Zhao Appointed Henry Cheng Professor in International Law (HKU)

Congratulations to Professor Yun Zhao, who was recently appointed to the Henry Cheng Professionship in Internationship Law.  He joins the other five endowed professors in the HKU Faculty of Law.  The appointment recognises Professor Zhao's expertise and scholarship in the area of space law.


From the website of HKU's Development and Alumni Affairs Office:  On October 4, 1957, the Soviet Union launched Sputnik 1, Earth’s first artificial satellite, and pushed the US into second place in the Space Race. This resulted in the United States Congress passing the Space Act that created the National Aeronautics and Space Administration (NASA). 
     Sputnik also had far-reaching legal implications and led to the creation of space law that governs human activity in outer space. With private companies leading a new commercial space race, space law faces many new challenges.
     Professor Zhao Yun is Head of the Department of Law at The University of Hong Kong. He was Director of the Centre for Chinese Law (2013-17) and is currently a Standing Council Member of the Chinese Society of International Law.
    He received his PhD from Erasmus University Rotterdam, having previously received an LLM from Leiden University and an LLM & LLB from China University of Political Science and Law. 
     The focus of Professor Zhao’s research is on space commercialisation and privatisation, including the liberalisation of telecommunications services within World Trade Organization frameworks, and national space legislation in China. He recently began work on international co-operation on space activities and space sustainability. And in view of the need of an appropriate legal regime for space mining, he put forward suggestions for an international space authority to govern space mining. 
    He has completed a project on commercialising the International Space Station, with particular reference to Hong Kong’s Future Participation, and is currently working on a multilateral regime for space resource mining and space sustainability.
    Professor Zhao is also researching dispute resolution, in particular online dispute resolution, to facilitate the dispute resolution process. He has argued on various occasions for the need to have an online dispute resolution mechanism and a set of online dispute resolution rules for the resolution of B2B disputes.
     He is listed as arbitrator in several international arbitration commissions. Professor Zhao is also a founding council member of Hong Kong Internet Forum, and a member of the International Institute of Space Law in Paris, the Asia Pacific Law Association, and the Beijing International Law Society. 
    He sits on the editorial teams of several Social Science Citation Index journals, including the Hong Kong Law Journal and the Journal of East Asia and International Law. He was the winner of the Prof.Dr. I.H.Ph. Diederiks-Verschoor Award 2006 from the International Institute of Space Law in France, the first winner of the Isa Diederiks-Verschoor Prize in the Netherlands, and also the first winner of the SATA Prize from the Foundation of Development of International Law in Asia. 
    He is published widely and his recent publications include Dispute Resolution in Electronic Commerce; Liberalization of Electronic Commerce and Law; Space Commercialization and the Development of Space Law; Mediation Practice and Skills; and National Space Legislation in China: An Overview of the Current Situation and Outlook for the Future.

Sunday, July 7, 2019

Daniel Matthews' From Global to Anthropocenic Assemblages: Re-Thinking Territory, Authority and Rights in the New Climatic Regime (MLR)

Modern Law Review 
July 2019, Vol 82, Issue 4, pp 665-691
Abstract: In a widely read study, Saskia Sassen uses the territory, authority, rights (TAR) framework in order to analyse the transformation of social life in the West from ‘medieval’ to ‘global’ assemblages. In the context of rapid, planetary climatic change – with many claiming that we have entered a new and climatically uncertain epoch known as the Anthropocene – does the TAR framework provide the relevant conceptual resources required to understand the ‘Anthropocenic’ assemblages of the present? This article examines the limitations of Sassen’s TAR framework, arguing that alterative theoretical resources are required in order to grasp the changing dynamics of social life in the context of the new climatic regime.  Click here to download the paper from SSRN.

New Issue of Hong Kong Law Journal (Part 1 of 2019)



Editor-in-Chief: Professor Rick Glofcheski
Associate Editor: Professor Albert Chen
Publisher: Sweet & Maxwell


Articles
Regulating Working Hours in Hong Kong: Towards Temporal AutonomyMimi Zou and Kelly Leung
1
Going Global: An International Profile of Legal Research in Hong Kong’s Law SchoolsStephen Thomson
29
China Law
Article V(1)(b) of the New York Convention in China: Applying the Due Process Defense without the Doctrine of Due Process Lei Zhu and Yongping Xiao
57
Impact of Certain Merger Control Provisions on Hostile Takeover Activities in China Ewa Kruszewska
91
“The Belt and Road” and Cross-Border Judicial Cooperation Zheng Sophia Tang
121
Qing Judicial Interpretation of “Coercion” and “Deceit” in the Context of Suicide Geoffrey MacCormack
153
Symposium: 20 Years of the Basic Law
Introduction  Po Jen Yap
183
Separation of Powers in Hong Kong: Inching Towards a More Flexible Judicial Interpretation  Danny Gittings
187
Twenty Years of the Basic Law: Continuity and Changes in the Geoffrey Ma Court   Po Jen Yap
209
Dualism in the Basic Law: The First 20 Years  Michael Ramsden
239
Proportionality after Hysan: Fair Balance, Manifestly without Reasonable Foundation and Wednesbury Unreasonableness  Johannes Chan
265
Constitutional Finance: The Role of the Hong Kong Basic Law during the Global Financial Crisis  Eric C Ip
295
Subsidiarity, Authority and Constitutional Experimentalism in Hong Kong Yu Xingzhong
315
Round Three of Hong Kong’s Constitutional Game: From Semi-Democracy to Semi-Authoritarianism  Benny YT Tai
335
Revisiting Legislative Interpretations in China and the Implications for Hong Kong Yang Xiaonan and Fu Hualing
357
The Oath-taking Cases and the NPCSC Interpretation of 2016: Interface of Common Law and Chinese Law Han Zhu and Albert HY Chen
381
Click here to read the abstract of each article. Hong Kong Law Journal is published by Sweet & Maxwell. Full text is available on Westlaw.

Symposium: 20 Years of the Basic Law (HKLJ)

Hong Kong Law Journal marks 20 years of the Basic Law with a set of Symposium articles published in the first issue of volume 49 (2019).  Professor Po Jen Yap, who convened the special issue, introduces the symposium contributions and authors his own article on the constitutional law developments in the Court of Final Appeal, especially under the stewardship of Chief Justice Geoffrey Ma.  The other articles are written by prominent scholars of constitutional law from Hong Kong, Mainland China and the United States including Albert Chen, Johannes Chan, Hualing Fu, Yu Xingzhong, Benny Tai, Eric Ip, Michael Ramsden, Nancy Yang, Han Zhu and Danny Gittings.  The titles and abstacts of the contributions are printed below.

Symposium: 20 Years of the Basic Law
Introduction  Po Jen Yap183
Separation of Powers in Hong Kong: Inching Towards a More Flexible Judicial Interpretation  Danny Gittings
Separation of powers is not an area where courts in a number of common law jurisdictions have displayed a great deal of consistency, and the Hong Kong judiciary proved no exception during the early decades of the Special Administrative Region. Faced with a doctrine enshrined in the Basic Law, which they had virtually no prior experience of interpreting during Hong Kong’s colonial era, the courts resorted to a simplistic and formalist approach during some early cases, drawing on rigid overseas precedents to enforce the prophylactic barriers between executive, legislature and judiciary so beloved by separation of powers purists. But influenced by the writings of Sir Anthony Mason, the courts began inching towards a more flexible interpretation of separation of powers during the second decade of the Special Administrative Region. Yet this quasi-functionalist approach remains a work very much in progress, with the courts preferring to blur the boundaries between the three branches rather than embrace the full breadth of the separation of powers doctrine by directly acknowledging that the work of the executive, legislature and even judiciary must sometimes overlap.
187
Twenty Years of the Basic Law: Continuity and Changes in the Geoffrey Ma Court   Po Jen Yap
The Court of Final Appeal (CFA) with Chief Justice Geoffrey Ma at its helm has wisely upheld the Central People’s Government’s core interests in Hong Kong. On the other hand, the Court’s most confrontational and liberal constitutional decisions pertain only to issues that Beijing cares little for — the CFA’s supervisory control over the lower courts, Lesbian, Gay, Bisexual, and Transgender (LGBT) rights, bankruptcy reform, and welfare entitlements — but are of immense constitutional significance in Hong Kong. On domestic law and order issues, there have been modest liberal developments. Instead of openly declaring that the impugned governmental practice is outright unconstitutional, the CFA now more regularly enforces constitutional rights in a way that leaves sufficient decisional space to the legislature or allows the legislature to respond in disagreement using the ordinary political process. Furthermore, the CFA — very attentive to potential governmental backlash — regularly strategically blunts the force of their liberal decisions ex ante so as to secure ex post compliance from the government.
209
Dualism in the Basic Law: The First 20 Years  Michael Ramsden
Over the past 20 years there have been a number of interesting points of interaction between public international law and the Basic Law. These have included the use of international norms in the interpretation of Basic Law provisions, the relevance of British treaty ratifications to the scope of domestic constitutional guarantees in Hong Kong, the constitutional significance of treaties referenced in Art 39 of the Basic Law, the continuing scope and effect of the common law doctrine of incorporation, and the influence of international norms on the common law grounds of judicial review. This article surveys these developments, considers the proper scope of dualism as a constitutional principle in Hong Kong and evaluates the future relationship between Basic Law and public law norms, on the one hand, and international norms, on the other.
239
Proportionality after Hysan: Fair Balance, Manifestly without Reasonable Foundation and Wednesbury Unreasonableness  Johannes Chan
While the recent decision of the Court of Final Appeal in Hysan Development Ltd v Town Planning Board has provided a useful analytical framework for the proportionality analysis, it is argued that the court’s suggestion that the fair balance test in the 4th step which is normally unlikely to change the outcome, if a restriction satisfies the first three steps, is unwarranted. It is unsound in principle, as the 3rd and 4th stages serve different purposes, and has a tendency to turn the fair balance test into one of secondary importance such that the courts may not apply the test as rigorously as they should. A distinction should be drawn between a legislative encroachment and an executive/discretionary encroachment. The secondary importance of the 4th stage may be justified only when consideration of the fair balance test would have already been exhausted in the first three stages, such as when the issue pertains to the constitutionality of a legislative provision, whereas in the latter case of an executive/discretionary encroachment, notably in the context of town planning or social security scheme where there is a resource-distribution issue, the mere fact that a legislative scheme may satisfy the first three steps does not warrant the suggestion that the 4th step should not be an independent enquiry, as its purpose is to address the resource-distribution issue. In the second part of the article, it is argued that, with the development of the principle of margin of discretion in the proportionality analysis in Hysan, there is now little difference between the proportionality test and the traditional Wednesbury rationality test in common law judicial review, and that a single test of proportionality to replace Wednesbury rationality test should be adopted.
265
Constitutional Finance: The Role of the Hong Kong Basic Law during the Global Financial Crisis  Eric C Ip
The global financial crisis of 2007–2009 inflicted an unprecedented catastrophe on Hong Kong amongst many other economies. And yet the constitutional framework set out in the Basic Law performed quite satisfactorily in supporting financial stability. The collapse of multiple financial institutions and the domino effect which it threatened in the United States, the United Kingdom and continental Europe did not overtake Hong Kong or resulted in any permanent loss of gross domestic product or required a rehabilitation of the financial or macroeconomic infrastructure of the former British dependency. The crisis left the Basic Law completely intact as well: not a single provision had to be amended in consequence. Hong Kong’s aggressive regulation in times of emergency was part and parcel of its constitutional ideology of “positive non-interventionism”. That stability, however, hinges on widespread beliefs held by all the interested parties about the uncompromisingness of the government’s commitment to private property protection and contract enforcement, its self-interest in conserving Hong Kong’s status as an international financial centre and China’s aversion to the breakdown of the Basic Law paradigm, all of which together constituted a self-fulfilling prophecy, that of a self-enforcing economic constitution.
295
Subsidiarity, Authority and Constitutional Experimentalism in Hong Kong Yu Xingzhong
Hong Kong’s historical background, its unique cultural characteristics and the purposeful fusion of the legal systems since the handover have provided valuable resources for developing a constitutional model noticeably different from the existing ones. Constitutional conflicts in Hong Kong since 1997 can be understood as a manifestation of the conflict between two major constitutional principles: authority and subsidiarity. As a result of constitutional experimentalism that celebrates constructivism and pragmatism, characterised by momentarity and temporality, the dynamic constitutional development in Hong Kong since 1997 has greatly increased Hong Kong people’s constitutional consciousness. The unintended outcome of this dynamic constitutional development is the emergence of the constitutional identity of Hong Kong, marked by the constitutional ideal of “One Country, Two Systems”, constitutional interpretation shared by Hong Kong courts and the Standing Committee of the National People’s Congress, centralised and decentralised constitutional review and the integration of a written constitution with an unwritten common law constitutional tradition.
315
Round Three of Hong Kong’s Constitutional Game: From Semi-Democracy to Semi-Authoritarianism  Benny YT Tai
A game-analytical framework is used to understand the constitutional development of Hong Kong. The constitutional game of Hong Kong has entered into Round Three. The theme for Round Three is “from semi-democracy to semi-authoritarianism”. The existing game-field is neither genuinely democratic nor totally authoritarian. The Civil Society of Hong Kong, a key game player, adopted a new strategy to put pressure on the Central Government (CG) aiming to transform the game-field from semi-democratic to genuinely democratic. A large-scale civil disobedience movement by occupying main streets at the heart of the city was organised in 2014. The CG, the most powerful and resourceful game player, responded by blocking Hong Kong’s road to democracy. The CG worries that Hong Kong could be used as a subversive base to threaten its rule in the Mainland if democratic elections were to be fully implemented. The game-field is further transformed by the CG from semi-democratic to semi-authoritarian. The Opposition, the Legislative Council, the Courts and the Civil Society of Hong Kong are weakened so that the Chief Executive under the direction of the CG could have a free hand to gain legitimacy through implementing policies to improve people’s livelihood. The voices demanding for democracy might then be silenced. This article analyses how these changes happened and illustrates how these changes may affect all the players in the next round of the constitutional game.
335
Revisiting Legislative Interpretations in China and the Implications for Hong Kong Yang Xiaonan and Fu Hualing
The Standing Committee of the National People’s Congress (NPCSC) has the power both to interpret the Basic Laws in the Hong Kong and Macau and to promulgate legislative interpretation in Mainland China. This article aims to provide an update on legislative interpretation in China. The NPCSC has gradually improved legislative interpretations by standardising its interpretation procedure and by ensuring substantive conformity within a broader legal scheme. Nevertheless, the NPCSC still lacks necessary elaboration on the conditions and methodologies of its interpretations. Upon closer examination of the history of legislative interpretation, it may be found that its practice has evolved and continues to change. Therefore, this may require Hong Kong courts to follow its process closely and understand its institutional function in a better way.
357
The Oath-taking Cases and the NPCSC Interpretation of 2016: Interface of Common Law and Chinese Law Han Zhu and Albert HY Chen
The oath-taking cases involving the disqualification of six Legislative Councillors in Hong Kong and the National People’s Congress (NPCSC) Interpretation in 2016 on oath taking were highly controversial. This article traces the origins of the oath-taking law in Hong Kong to its English roots and explains the difference today between the consequences of failure to comply with the oath-taking requirements by Hong Kong legislators on the one hand and by British Members of Parliament on the other hand. It analyses the distinction between interpretation, supplementation and amendment of the Basic Law in the context of NPCSC interpretations. It also considers the circumstances in which an NPCSC interpretation should have retrospective effect.
381