Friday, June 15, 2018

Johannes Chan's "A Storm of Unprecedented Ferocity" (ICON)

Johannes Chan
June 2018
ICON, Volume 6, Issue 2
Abstract:  As Hong Kong celebrated its twentieth anniversary of becoming a Special Administrative Region of China under the One Country, Two Systems model, the tension between the socialist/civil law system and the common law system on two sides of the border has become increasingly strenuous.  The tension is most obvious in relation to the independence of the judiciary, and is aggravated by the rising economic power of China and the emergence of the so-called “localism” in Hong Kong.  This article argues that the latest interpretation of the Basic Law by the Standing Committee of the National People’s Congress in the context of disqualifying a number of popularly elected legislators constituted the most blatant interference with judicial independence in Hong Kong.  At the same time, the judiciary in Hong Kong is facing mounting challenges from demonstrators who tried to test the boundary of public demonstrations in the pretext of civil disobedience.  The court has done well so far in defending the rule of law, but it has to secure its own institutional space within a shrinking public space, and is treading an ever-slippery path of maintaining the liberal values of the common law system amidst a rising and powerful authoritarian regime. 
    This special issue of ICON which is focused on Asia also has review essays by Hualing Fu (with Xiaobo Zhai) and Maria Adele Carrai (PhD 2016) and book reviews by Po Jen Yap (with Chintan Chandrachud), Albert Chen and Kelley Loper.  Recent books authored by Po Jen Yap (Courts and Democracies in Asia) and Shitong Qiao (Chinese Small Property: The Co-Evolution of Law and Social Norms) are also reviewed in this issue.  

Wednesday, June 13, 2018

Simon Young on Disproportionality in Asset Recovery (new book chapter)

Simon NM Young
in Colin King, Clive Walker & Jimmy Gurule (eds), The Palgrave Handbook of Criminal and Terrorism Financing Law, vol 1 (Palgrave Macmillan, May 2018) pp 469-489
Abstract: Proceeds of crime laws are designed to interfere with persons’ property rights and interests for good reasons, but human rights laws prohibit interferences that are disproportionate. Courts in the UK and Hong Kong are starting to develop a body of law to provide guidance in this area. While the UK courts are more advanced than the Hong Kong courts, the guidance that has emerged is still preliminary and judges are far from unanimous on both methodological and substantive points. The chapter argues that judges should adopt a two-step methodological approach that applies the broad and natural meaning of the legislative scheme at the first step and invokes proportionality only at the second stage to address disproportionate outcomes on a case-by-case basis. It further argues that courts should adopt an individualised approach to proportionality based on the application of three principles. Disproportionality in restraint or confiscation cases will normally be seen if the legal measure in question is unable to serve its objective, exceeds its objective in a systemic and detrimental manner, or has effects that are grossly out of proportion to its objective. Courts will be able to achieve a greater degree of coherence if these three principles are properly adapted and followed.

Tuesday, June 12, 2018

New Book: Paths of Justice (HKU Press) by Johannes Chan

Paths of Justice
Johannes Chan
HKU Press
June 2018, 264 pp
Description: In Paths of Justice, Johannes Chan illuminates fundamental themes and basic values in Hong Kong’s legal system by using his own experience and drawing on interesting and important cases. The book explains and demystifies some of the most frequently asked questions about the law: How does a lawyer defend someone who is guilty? Does the law favour the rich and the resourceful? Is there a duty to obey the law in all circumstances? How can human rights and national security coexist in balance if their goals conflict in certain situations? How can fairness be reconciled with administrative efficacy? Is an abuse of freedom a justification for denying it? He also casts light on legal profession and professionalism, arguing that the legal profession is honourable only because lawyers, by and large, do live up to a high ethical standard and are committed to the values of justice and fairness.
     These cases cover a wide range of legal discussion and span several decades of Chan’s professional practice, from when he was a young barrister to his years as Honorary Senior Counsel. Through the description of these real-life court cases, he gives readers not only a better understanding of how Hong Kong’s legal system works in practice, but also the essential tools to think deeply about legal institutions, the legal profession, the role of justice in a modern society, and the importance of the rule of law.

Wednesday, June 6, 2018

Marco Wan on Hong Kong's Unique Traditions of Marriage and the Same-Sex Civil Servant's Case (SCMP)

"Gay marriage would be more at home among Hong Kong's traditions than court suggests"
South China Morning Post
7 June 2018
In the latest twist in the saga of same-sex unions in Hong Kong, the Court of Appeal ruled against Angus Leung Chun-kwong, the gay civil servant who asked the government not to discriminate against him by granting him and his male partner, whom he married abroad, spousal benefits, and allowing them to file their taxes jointly. The court notes that Leung’s claims were inconsistent with the local culture, history and tradition upon which the contemporary understanding of marriage is built.
     However, a closer look at Hong Kong’s unique traditions of marriage suggests that these traditions actually support Leung’s case. Decades of gay rights litigation have taught us that the past that gets evoked to resist change is often more imaginary than real, and any use of it, whether by courts, politicians or activists, should be scrutinised.
    In ruling against Leung, the court underscores that Hong Kong’s prevailing socio-moral values militate against any official recognition of his marriage. Crucially, it emphasises that such societal views are primary considerations for both the court and the government because they are derived from long-standing local practices and beliefs associated with marriage. Granting spousal benefits or joint tax assessment to gay and lesbian couples, then, would be tantamount to going against the history of marriage in Hong Kong.
     The court is insistent on this point: phrases like “the Hong Kong context”, “history”, “tradition” and “long usage” appear repeatedly in the judgment.
     This inward turn towards the city’s supposedly unassailable lineage also underpins the court’s sidelining of developments in the long line of pro-gay jurisdictions around the world, including that of Britain, the United States, Taiwan and European countries like France and Germany... Click here to read the full article.

Tuesday, June 5, 2018

Martin YC Kwan on Restoring Transactions Unknowingly Tainted by Insider Trading (Common Law World Review)

"Restoring transactions unknowingly tainted by insider trading: A Hong Kong case"
Martin YC Kwan (PCLL candidate)
First published online on May 11, 2018
Abstract: In the Hong Kong Court of Appeal decision The Securities and Futures Commission v Young Bik Fung and others, the Court applied s. 213(2)(b) of the Securities and Futures Ordinance (SFO) to restore two transactions of shares entered into by an investor who invested based on ‘information, advice or tips’ given by an insider, despite the investor did not know that the advice was based on inside information and was not guilty of insider trading. Nevertheless, the investor was ordered to repay the profits made as if the transactions had not been made. It is suggested that the restoration order in Hong Kong has the widest scope of application among the major common law jurisdictions, because Hong Kong is the only jurisdiction where a person who has not committed any market conduct can nevertheless be subject to a restoration order. The Court justified such wide scope of application with reference to the paramount policies of minimizing market misconduct and ensuring no benefits is obtained from insider dealing by anyone. By a comparative law analysis, it is argued that s. 213(2)(b) SFO has been wrongly interpreted. The paramount policies should not be blindly applied without giving proper consideration to other established principles of law, such as the fundamental right to property of the unknowing investor.

Sunday, June 3, 2018

Thursday, May 31, 2018

KE Story on Speaking Up for Women and Ethnic Minorities (Puja Kapai)

Puja Kapai (third from left) at UN Human Rights Committee
meeting in March 2013
HKU KE Newsletter
April 2018, Issue 14
Fair and equal treatment of women and ethnic minorities is too frequently unrealised in Hong Kong, but work by Associate Professor Puja Kapai Paryani in the Faculty of Law is helping to shed light on some of the ways in which society can redress the balance.
     Since 2012, Ms Paryani has compiled strong evidence on the extent of discrimination, unconscious bias and unfair practices in Hong Kong, which she has presented to the government and international organisations. She has also conducted training sessions for non-governmental organisations, corporations and the Equal Opportunities Commission on these issues, and brought together a wide range of stakeholders for roundtable discussions on the plight of domestic workers, ethnic minority children and the victims of sexual violence.
     These efforts have produced tangible improvements, such as a pledge by the government to officially disband the designated schools policy, improve school admission policies, and provide additional resources for Chinese language education for ethnic minorities after Ms Paryani’s research showed they were marginalised in education at every stage and effectively segregated from ethnic Chinese students in public schools; and a decision by the Department of Justice to install screens in court from behind which victims of sexual violence can testify, following lobbying by Ms Paryani and RainLily, a centre for victims.
     Her oral submissions contributed to the remarks made in the Concluding Observations, issued by the United NationsHuman Rights Committee and Committee on the Rights of the Child in 2013 on Hong Kong’s international human rights obligations.
     “People talk about gender-based discrimination or violence, or racial discrimination, but what my work highlights is that people are more than just a single identity holder. We inhabit multiple identities and when you locate and recognise the multifaceted identities all together in one person, that creates distinct vulnerability and disadvantage, which needs to be understood. We cannot develop effective laws or policies unless we can understand the populations we serve. I want to raise awareness about this across the societal, professional, governmental and non-governmental sectors,” she said.
     Ms Paryani has also encouraged sensitivity training for social workers, NGOs, healthcare workers and the police so they can deal more sensitively with situations involving ethnic minorities and women – for instance, by highlighting the importance of making use of translation services, which are often bypassed to save time. She also played an instrumental role in helping HKU identify more gender-friendly policies in her work as Chair of the Equal Opportunity Unit’s Working Group on Race, Family Status and Gender Identity.
     “I’m gratified that there has been a change in culture,” she said. “The government moved from saying there was no race discrimination problem in Hong Kong, to allocating resources to remedy what they now acknowledge as unacceptable patterns of racial marginalisation. NGOs are also now inspired to do their own research in this neglected area, monitor policies and call on the government to do better.”  Click here to read the full text.

Wednesday, May 30, 2018

"Outstanding new book on the Chinese legal system", review of KH Ng & Xin He's Embedded Courts: Judicial Decision-Making in China

Kwai Hang Ng and Xin He
Cambridge University Press
Oct 2017, 258 pp
Description: Embedded Courts is laden with tension. Chinese courts are organized as a singular and unified system yet grassroots courts in urban and rural regions differ greatly in the way they use the law and are as diverse as the populations they serve. Based on extensive fieldwork and in-depth interviews, this book offers a penetrating discussion of the operation of Chinese courts. It explains how Chinese judges rule and how the law is not the only script they follow - political, administrative, social and economic factors all influence verdicts. This landmark work will revise our understanding of the role of law in China - one that cannot be easily understood through the standard lens of judicial independence and separation of powers. Ng and He make clear the struggle facing frontline judges as they bridge the gap between a rule-based application of law and an instrumentalist view that prioritizes stability maintenance.
     Professor Donald Clarke of George Washington University Law School recently commended the book on The Chinese Collection blog (4 May 2018).  Professor Clarke wrote: "I cannot recommend this superb book highly enough... The authors combine years of fieldwork with sophisticated theoretical insights, and present it all in an engaging style that is refreshingly free of pretentious jargon... [I]f you read (or recommend to someone else) one book on Chinese law, this should be it. I can't think of a better one out there."

Tuesday, May 29, 2018

David Law and Tom Ginsburg on Constitutional Drafting in Latin America (new book chapter)

"Constitutional drafting in Latin America: a quantitative perspective"
David Law and Tom Ginsburg
in Colin Crawford and Daniel Bonilla Maldonado (ed.),  Constitutionalism in 
the Americas,
(Edward Elgar, 2018), pp. 217-239
Introduction: Generalizations about the practice of constitutional drafting within a region as diverse as Latin America are bound to be inherently imprecise. A single region can be home to considerable constitutional heterogeneity.1 It is also clear, however, that there exist geographical and regional patterns in the adoption of formal legal rules.2 Distinctive regional characteristics can endure in the face of globalization for a multitude of reasons. In the case of Latin America, for example, they may be borne of historical, religious, linguistic, and geographical ties, or they may reflect the 
existence of shared concerns and experiences, such as American hegemony or a legacy of strongman rule.
     This chapter offers an empirical overview of constitutional drafting patterns and trends in Latin America over the last 60 years. We use various quantitative measures and indices of constitutional content to contrast Latin America with other regions and shed light on whether and in what ways constitutional drafters in Latin America have responded to frequent concerns such as excessive American influence, overconcentration of executive power, and human rights abuses.
     Section II examines the extent to which Latin American countries continue to use the U.S. Constitution as a model for their own constitutions. In both scope and substance, Latin American constitutions are becoming increasingly dissimilar to the U.S. Constitution over time. Indeed, not only has Latin America become increasingly divergent from the model of the U.S. Constitution, but it has become more divergent than the rest of the world.
     Section III compares constitutions in Latin America with those of other regions along a number of substantive dimensions. Relative to other regions, constitutional drafting in Latin America is characterized by a stingy approach to executive power and a generous approach to the protection of rights. Latin America’s combination of extensive de jure rights, on the one hand, and a long history of autocratic leaders and human rights abuses, on the other, is a reminder that governments do not always deliver in practice what they promise on paper. Prior work suggests that levels of actual respect for rights have improved over the last two decades, with the result that the gap between the promise and the reality of Latin American constitutionalism may be narrowing.3 As interesting as that line of research happens to be, however, this chapter focuses exclusively on how constitutions are drafted, rather than how they are interpreted or implemented. Accordingly, we deliberately limit our analysis to the text of the constitutions themselves. Our findings suggest that constitutional drafting is characterized to some degree by variation along regional lines, and that there is at least some substance to the notion of a Latin American approach to constitutional drafting...

Cottrell & Ghai on The Contribution of the South African Constitution to Kenya's Constitution (new book chapter)

"The Contribution of the South African Constitution to Kenya's Constitution"
Jill Cottrell & Yash Ghai
in Rosalind Dixon & Theunis Roux (ed.), Constitutional Triumphs, Constitutional Disappointments : A Critical Assessment of the 1996 South African Constitution's Local and International Influence, (Cambridge University Press, March 2018), pp. 252-293
Introduction: There is no such thing as an original constitution. And there is no sin in plagiarizing another country's constitutional ideas (or more importantly, learning from their experience). South Africa's own debt to other countries' constitutions – particularly those of India, Canada and Germany – is evident. In the last seventy or eighty years, probably more constitutions have been enacted than in all the centuries before. These constitutions are widely available and their performance widely analyzed. There are numerous books on these (and past constitutions) and some handbooks on the best strategies and procedures for making a constitution, and how to design them for effectiveness. A number of significant regional and international treaties have been adopted in the last fifty or more years imposing obligations on states that influence the orientation of constitutions. International consultants (mostly from the West) on how to write constitutions and even who will “do it for you” have proliferated at an alarming rate. All these developments lead to borrowing of ideas and structures for constitutions. South Africa has both borrowed from some other countries and has had its own constitution copied.
      Constitutional borrowing (an odd word, since the debt is never repaid) is by no means restricted to situations where foreigners were intimately involved in a country's constitution-making process. Propinquity (in space and time), similarity of history, tradition and experience, of political orientation and vision, and of legal tradition, all play their parts. And so do personal factors: local constitution makers do not come to their tasks as personal blank slates. They have expectations of how things ought to be done, perhaps rooted in their own country's history, or they may reject how things were done in the past and look to other countries for inspiration on how to do them differently. They have studied, perhaps in another country, have perhaps worked in another country, have academic knowledge of other countries, even friends in other countries.
     South Africa's constitution-making process came early, though not the earliest, in the post-Cold War spate of processes. Its emergence from apartheid was an inspiration to other countries, especially in Africa. The country became a place of pilgrimage, literally and virtually, for other countries emerging from autocracy.
     Kenya's process did not really begin in 2000 when the first official constitution-making body (the Constitution of Kenya Review Commission or CKRC) was appointed. It began just over a decade earlier, and thus ran somewhat in parallel with South Africa's. One of the leading early activists, and chronicler of the Kenyan process, records that, in 1994, three organizations that had been working toward a new constitution held a workshop (funded by two German bodies); they reflected on the Constitutions of Uganda, Ghana, Namibia and South Africa. But they also discussed ideas from the USA and Germany.
     South Africa's final Constitution was adopted only four years before the official Kenyan process began. But there were other, more direct and more personal, influences. The Chair of the CKRC3 had been somewhat involved in the South African process, and had been very much inspired by the experience, and also had a number of South African contacts. A member of the CKRC had spent time as an intern at the Kenyan High Commission in South Africa and drew on what he learned especially in contributing to the debates on devolution. In phase two of the Kenyan process, when three foreigners joined the Committee of Experts (2009–10) (CoE), one of those foreigners was South African (Christina Murray). Another was Ugandan and the third Zambian, resident in the United Kingdom.
      South Africans came to Kenya at the invitation of Kenyans. Yvonne Mokgoro, Judge of the Constitutional Court, was a member of a panel of Commonwealth experts that advised on how to deal with the issue of a compromised judiciary – including a proposal for a vetting process to weed out the corrupt, incompetent and executive-dependent members of the judiciary. This was not a process inspired by South Africa.
     The CKRC held various workshops to educate itself about dimensions of the issue, including speakers on economic social and cultural rights in South Africa, and other aspects of human rights, on devolution in South Africa, and on electoral systems with considerable discussion of PR in South Africa.
     Another influence is almost certainly that of a drafter: Philip Knight is a Canadian legal drafter who played a significant role in the final stages of drafting the South African Constitution with the specific brief of making that document as “plain English” as possible. Yash Ghai admired the style, and thus proposed him for the Kenya process, phase 1. And he was also a major drafter in the CoE phase. Clearly the decision to draw on the South African experience had already been made; it was not Knight's initiative. But he almost certainly introduced some phraseology from that country.
     There were significant differences between the South African and Kenyan constitutional and political situation. The former was more like Kenya at independence: a past, in many ways alien, regime was being shaken off, and there was faith in the new leaders of the majority. But Kenya in 2000 was not a newly independent country: though it was capable of short periods of wild optimism, it was basically a country disillusioned by politicians, and determined that a new constitution would contain as many constraints on abuse of power, corruption and land grabbing as possible. And women, persons with disability and other groups that had felt marginalized over the preceding forty-seven years were equally enthusiastic to ensure that everyone was included in the new Kenya that they believed a new constitution (and the end of President Moi after twenty-four years) would – or should – bring. This disillusionment accounts for many of the differences between the South African and Kenyan constitutions. Another difference between the two countries was in the position of the political leaders. While the ANC wanted a liberal-democratic constitution, the Kenyan leaders wanted maximum powers and perks for themselves; their primary interest was to get rid of President Moi so they could assume government with the extensive powers that Moi had assumed for himself. The same differences were reflected in the implementation of the constitutions: South Africa's enthusiastically by political leaders, Kenya's the object of sabotage efforts.
      Between 2000 and 2010 when a new constitution was finally adopted there were seven official drafts of a constitution (a process of development but sometimes regression from the first draft in September 2002 to the one of May 2010 that was adopted in a referendum in August that year).7 There was no “big bang” acceptance of South African ideas.
     Some things came in early and stayed, like provisions of the Bill of Rights, notably s. 27 of the South African and Article 24 of the Kenyan on limitation of rights, and s. 38/Article 22 on right to standing to sue for breach of human rights – the constitutional basis for public interest litigation. The occasional thing came and went, like the terminology of “State President,” used only in the fifth version of a new constitution, and a constitutional court – in the fourth and fifths drafts; both were removed by the Parliamentary Select Committee (PSC). Some topics became gradually more South African, like devolution, which we discuss in some detail.
     It is important to distinguish between language and substance, while recognizing their profound interlinkages. That language is similar between two constitutions does not mean that the latter took the idea of substance from the earlier, even if they share formulations not used elsewhere. An example is s. 38/Art. 22. The inspiration for the South African provision on expanded standing is obviously public interest/social action litigation in India. But lawyers in Kenya were also aware of the Indian developments, and it was a great convenience to find a country that had worked out a neat encapsulation of enhanced standing...

Monday, May 28, 2018

Fu, Palmer and Zhang on Selectively Seeking Transparency in China (J of Comp Law)

"Introduction; Selectively Seeking Transparency in China"
Fu Hualing, Michael Palmer and Zhang XianChu
The Journal of Comparative Law
published in Feb 2018
Volume 12, Issue 2, pp. 203-215
Introduction: 'The possession of full knowledge does away with the need of trusting, while complete absence of knowledge makes trust evidently impossible.' George Simmel
Preliminaries: For the past twenty years or so, the concept of transparency has grown exponentially in importance around the world as a principle of good governance.  There is a strong body of thought that argues for much more openness in the manner in which governments, social institutions and business corporations conduct themselves, and in particular in the extent to which they are willing to disclose important information about themselves or about other actors in which they have an interest.  The push for greater transparency is informed by the confidently held view that more openness will be a transforming and renovating process: it will encourage not only more effective decision-making but also greater accountability, and added responsiveness on the part of public and large private institutions to the forces of civil society.
     A commitment to transparency as a legal institution and process may, however, present difficulties for an authoritarian system's leadership.  Introducing greater transparency encourages better and probably therefore more critical understanding of governmental policies and actions.  Such reform is therefore likely to lead also to demands for political and governance change and similarly radical ideas that perhaps create stability problems for an authoritarian political and legal system.  Given that a basic impulse in an authoritarian regime is to limit the ability of other political forces to challenge the prevailing political system, and to rule by law rather than to accept the constraints of a meaningful rule of law, so offering citizens and others greater access to information that would enable civil society to scrutinize better the conduct of that authoritarian leadership and its institutions - perhaps even to challenge the existing power structure - is, at least potentially, dangerous.  But at the same time, authoritarian systems which seek some degree of popular support and legitimacy are more likely to look for ways to shape and control the flow of information about the manner in which they perform than they are to be entirely secret and to impose blanket censorship.  So, even within the broad range of systems that we can label as 'authoritarian', interest in restricting transparency is not evenly distributed.  In the case of the People's Republic of China ('PRC or 'China'), economic reform policies and a drive to gain a stronger place in the global economy have also encouraged a degree of sophistication in the approach to transparency.  In addition, Chinese authoritarianism takes the form of a 'fragmented authoritarianism', with significant divisions within the system which reflect directly or indirectly China's enormous size, social complexity and changing class structure, rapidly changing economy (including the development of a 'socialist market economy') and policies of decentralization.  These factors have made it difficult for the party-state to operate as a monolithic all-embracing system, and therefore also simply to suppress new developments such as transparency innovations when they emerge.  But over the past twenty years, in what ways and to what extent has greater transparency governance emerged in the PRC and what has been the impact in terms of accountability, decision-making processes, and responsiveness in the Chinese governance system and large social institutions and private sector actors?  The papers in this volume have their origins in a 2016 conference on transparency issues in China held at the University of Hong Kong's Faculty of Law under the guidance of the editors, and bringing together scholars with interests in the emergence of transparency in specific areas of Chinese governance.   
     Transparency has a long spectrum and its meaning can be wide-ranging in China as it is the case elsewhere.  While the importance of transparency is globally recognized, its specific meanings, the shape it may take, and the particular context from which it emerges may differ significantly.  China was an opaque and secret society in many ways before the Reform and Open Door Policy was initiated in the late 1970s.  In the case of the PRC, we need to bear in mind that for the first fifty years of socialist rule or so, the emphasis in the governance system was placed much more on secrecy and censorship than it was on openness and transparency.  China then was repressive politically, stagnant economically, and suffocating socially.  Beyond repetitive political propaganda, there was a near zero public sphere in which members of the society could be engaged in an informed communication and discussion, either with each other or with the party-state.  It was at that historical junction that the Party under the leadrship of Deng Xiaoping decided to open the hitherto-closed Chinese doors: opening the country to foreigners and opening the government to its people.  Since then, information, side by side with propaganda, has become a new vocabulary - one which occupies an important place in the Chinese governance.  China before the reform was collapsing under the weight of over-classification, propaganda and deception.
     While the reform is decisively an incremental process, it is one that is not easy to notice when it is emerging.  But when looking back at the slow-paced, yet continuous reform for four decades, it is not possible to miss the paradigmatic change in China's governance structure that touches on virtually every aspect of the Chinese society.  A golden thread that ties the entire reform project is the various attempts to create greater transparency (some more successful than others), from grass-roots elections, media liberalization, reform in the justice sectors to anti-corruption campaigns, auditing storm, open government information, and human flesh search - the list goes on, transparency is seen as an indispensable ingredient in the China reform process.
     Transparency is initially a passive concept, meaning first and foremost the declassification of information that should not have been classified, such as information relating to contagious diseases or those relating to natural disasters and human-caused incidents such as food and medicine scares.  The base-line for reform post-Mao was located on a very low rung of the ladder of openness (gongkai) and transparency (toumingdu).  Then, if transparency had any meaning it was merely to make available information to the general or specific members of the public that was otherwise shielded by criminal law.  But broader understandings have emerged.  Transparency also now means, for example, the depoliticization of information, particular news reporting, and the introduction of a degree of neutrality, objectivity, and professionalism in the gathering and reporting data.  And with de-classification and depoliticisation of information, there comes the possibility of, and the demand for, their disclosure.  The initial transparency reform opens up the system slightly and the opening-up generates further demand.  Transparency seems to be able to develop a life of its own and, gradually, state organs, such as the courts, trade department, village authorities or legislature, feel the need to disclose their work procedure, rules and decisions for public to view and consult.  Provinces and cities in the frontiers of China's economic reform first piloted government disclosure on their own to maintain pace with social and economic changes.  The amount and percentage of document and information that are subject to the disclosure rules increase gradually and by now, as it is often claimed officially, disclosure has become the rule, in matters relating to trade, legislation and judicial process, as some of the chapters in the volume clearly illustrate. 
     Transparency at this foundational level facilitates the development of a right or 'quasi right to know'.  The right again could be based on status - the 2007 Regulations on Open Government Information ('ROGI') offer an important platform to claim a right to know, and failure to fulfil the duty may lead to agency and judicial review of the original decisions.  Disclosure can also be based on policy initiatives in which state organs supply information as part of their public services - the court transparency reform, for example, is largely driven by the court itself in an attempt to enhance its popular legitimacy and political credibility.  Moving one step further, transparency has a participatory connotation when aggressively pursued by lawyers and other civil society forces and enforced by particular mechanisms such as public hearing.  In its ideal version, the participatory transparency is a form of consultative democracy in which people have a procedural right to participate in part of the decision-making process and a substantive right to have their views considered on matters affecting people's livelihood.
     Transparency performs a wide range of functions, with many in potential conflict.  It is important to have a closer examination as to who is driving the agenda and for what purposes.  Authoritarian states, to various degrees, embrace legality and law in promoting foreign trade, disciplining bureaucrats, regulating market transaction and in general enhancing credibility.  Transparency is a necessary ingredient and the minimum requirement in any rule of law reform.  No meaningful change can take place without first shedding lights on an otherwise opaque system.  Transparency reform is also politically permissible.  While having the potential to lead to more substantive reform, transparency itself is, however, limited to procedural matters and touches on fewer political sensitivities.  It is a feasible first step in the reform process.
     International demands for transparency, perceived or real, have played (and continue to play) a crucial role in China's transparency and disclosure.  China's joining the WTO, the participation in the UN Convention against Corruption, and its eagerness to cooperation with the international community on matters relating to mutual legal assistance, in particular extradition of fugitive offenders, have incentivized the Party state to place transparency on the top of the reform agenda.  However,  the forces of resistance to change were unusually strong given that secrecy and censorship were such an important aspect of both the political and the legal systems of post-1949 China.  Drawing on George Simmel's ideas about the social functions of secrecy, we might even suggest that the long-standing emphasis on secrecy in the operation of the political and legal systems encouraged a strong 'we group' feeling within the Chinese Communist Party (CCP) and also stimulated a loyalty the Party based in the benefits - both material and psychological - from their CCP membership.
     Moreoever, the PRC's official system of lawmaking, while very important in its own right and an indicator of progress towards the rule of law, does not eliminate the importance of other normative rules including, for example, the so-called 'hidden rules' or qian guizi that sometimes make it so difficult for the ordinary citizen to know how best to behave.  One of us has drawn attention to the continuing importance in the culture of governance in China of the use of norms and institutions that may be best characterized as 'extra-legal' and 'extra-extra legal'.   The situation regarding transparency also we think has to take into account the phenomenon of self-censorship - the fear of Perry Link's lurking 'anaconda snake' of party-state censorship and other aspects of political control, which means that many people who have reservations about certain issues are reluctant to voice their discontent and to challenge and demand greater information on a particular matter.  Lack of transparency and openness also reflects to some degree the social fact that rumours continue to be a very useful weapon of interpersonal rivalry in a society where the impact of the Cultural Revolution and its culture of jealousy and false accusations still lingers a half-century later, so that to have a significantly greater transparency in China's system of government and order maintenance would actually also require social as well as political and legal changes.
     There are likely to be significant gaps in any transparency reform in an authoritarian state.  Such reform can be partial, half-hearted, and in any event limited.  The China experience shows that judicial transparency, for example, is likely to bottom heavy with pressure applied mainly on basic courts.  The publication of cases may also be selective without clear standards as to which cases should be published on line.  Whatever is publicized might be marginal and whatever significant may remain hidden.  While big data can be made available from published cases, it may well not only be incomplete but also potentially biased.  Similarly, legislative openness may apply mainly to laws that affect the social and economic rights of citizens, and matters touching on political sensitivity are often regarded as off-limit.  Transparency is partial also in the sense it is allowed to apply only in an isolated stage in an ongoing political, legal or policy process.  While a law is open for public consultation, the drafting process before consultation and the debate and enactment after public consultation are not known.  Significantly, it may not be known how those public inputs are taken into consideration, if at all.
      Transparency also has the possibility of setting traps for reformers, thus creating unforeseen consequences that contradict the original objectives.  Transparency may serve a 'entrapment' function in two ways.  First, more transparency is not necessarily better in enhancing productivity or improving government.  In the Internet age with its explosion of information, the quality of information often matters much more than quantity.  The drive for transparency for its own sake may create its own excesses.  Floods of information (even if they contain no 'disinformation') may muddle public debate, reduce the level of rationality in public discourse, and in the end confuse the general public.  Moreover, excessive demand for information, as Peng's paper in this volume points out, may create unnecessary burdens on the administration, inviting hostile pushbacks from the institutions that are not keen to be opened up, and thus has the potential to block the information mechanism.  Secondly, the formality of transparency may have been used to frustrate genuine participation and heavily controlled transparency will not be able to trigger more structural transformation.  While transparency, when first introduced, may offer a corrective to political propaganda and government misinformation, it can however be used proactively by the government to enhance propaganda, reinforce the view that it supports and shapes public opinions.  That can be done through monopolizing  the sources of information, selective disclosure, and silencing alternative views, all done in the name of transparency, so that in effect we end up with 'untransparent' transparency.
     Broadly speaking, a number of the papers in this Special Issue see the situation in China as something of a balance between control on the one hand and progress in transparency on the other.  That is, the papers suggest that we an see the glass as half full with transparency but also in some sense half empty so that we have - to mix the metaphors - in China a semi-open door of transparency.   The pressures from the bottom upwards - including pressures from netizens - for greater public participation or civil society participation can be identified in the developments noted by some of the contributions.  Fir example, we see such bottom-up pressures for greater transparency in the area of tax rights and in the legislative process, as well of course in the abolition of re-education for labour, the revisions to the Criminal Procedure Law in 2012 and the revision of the Administrative Litigation Law in 2014.  But at the same time, we can see the glass is half empty in the sense that there are strict limits placed on transparency in particular areas such as national security, and the imposition of heavier controls on freedom of the press, blocks on attempts to create full-time people's deputies even on an experimental basis and so on.  One area where it is clear that transparency has been a problem is with the practice in China's system of administrative litigation or judicial review that developed a practice of pre-trial mediation behind closed doors.  For may years, mediation was in effect used to avoid the rule of law provisions against use of mediation in administrative litigation cases and in any event, was inconsistent with China's accession to the WTO special protocol provisions regarding more open judicial review.     

Zhu Han & Fu Hualing on Transparency as an Offence: Rights Lawyering for Open Government Information in China (J of Comp Law)

"Transparency as an Offence: Rights Lawyering for Open Government Information in China"
Zhu Han & Fu Hualing
The Journal of Comparative Law
published in Feb 2018
Volume 12, Issue 2, pp. 417-436
Introduction: Rights lawyering has been developing in China over the past two decades or so.  From spontaneous reaction to proactive organization, from litigation to civil society networking, from using law as a shield to using it as a sword and from individual cases to policy change, Chinese rights lawyers through social-legal activism have been a formidable social force in holding the state accountable for its rhetoric.  This article examines three ways rights lawyers in China have used transparency as a tool to pursue legal activism and social campaigns: open government information (OGI) applications, on-line mobilization, and off-line action.  For rights lawyers, transparency is both an end and a means to address a wide range of social-political issues.   The chapter finds that the formal OGI institutions have created new legal opportunities and resources for rights lawyering, which has proved to be resilient in promoting government accountability and restraining the arbitrary exercise of public powers. However, the political vulnerability of legal institutions and their lack of political will and ability to accommodate the demands of civil society have given rise to extra-institutional and extra-legal mobilization in a variety of organized street actions by rights lawyers.  The extra-institutional lawyering has provoked retaliation from the state, however, leading to further restrictions on lawyers' right to know and crackdowns on rights lawyering.
     Operating in an authoritarian system with a compliant judiciary, limited rule of law, and little meaningful political participation, Chinese lawyers have few options with which to seek remedies when their rights and interests and those of their clients are adversely affected. Over the past two decades, Chinese lawyers, mostly rights lawyers, have through activist lawyering exploited all available opportunities within the current legal framework by using the existing legal procedures to promote accountability and restrain the arbitrary exercise of powers.
      The promulgation of the Regulations on Open Government Information (the 'ROGI') in 2008 provided a new legal opportunity which lawyers together with other civic groups have readily grasped.  However, while formal OGI institutions have largely failed to satisfy rights lawyears' demands, the institutionalization of rights lawyers and the coming into maturity of a community of rights lawyering, coupled with the development of information technology and enhanced international support, have enabled rights lawyers to take a proactive and occasionally aggressive approach to exposing abuses and in holding public power accountable to the law.  Since the promotion of the ROGI, there has been a shield-to-sword shift in the way in which law is used as an offensive weapon in the hands of right lawyers and activist citizens, with some assertive rights lawyers having moved from online mobilization to off-line action including gathering in courtrooms and protesting on the streets.  Online mobilization and direct actions have primarily served the purpose of publicizing abuses, real and perceived, and making the legal process visible for all to see and to judge.  It is part of a larger strategy of naming and shaming government offenders.   Facing extensive abuse of power in both the political, administrative and the judiciary sectors, transparency has become a weapon for the weak, whose grievances are rarely addressed through institutional channels. 
     This article examines how Chinese lawyers, primarily rights lawyers, have used both institutional and extra-institutional means to demand transparency and government accountability.   Here, the authors adopt a broad definitation of rights lawyers, as 'lawyers or quasi-lawyers who consistently use legal rule and institutions, as well as other platforms, to promote a specific social campaign or the rule-of-law development.'  This definition includes human rights lawyers (renquan lüshi) who devote their work to politically sensitive causes, public-interest lawyers (gongyi lüshi), and the newly-emerged so-called 'die-hard' lawyers (sike lüshi ), mostly criminal defense lawyers (xingshi bianhu lüshi).   The discussion on lawyering for OGI also encompasses ordinary lawyers who have submitted OGI disclosure requests (hereinafter OGI requests).
     The empirical material on which this article is based, in large part, is drawn from a variety of data and materials, including 105 OGI requests made by lawyers between 2008 and 2015, official records and judicial decisions, comprehensive reviews of media reports and documentaries, monitoring of rights lawyers' social media activities, and open-ended interviews with rights lawyers and activists.  The essay examines three ways of transparency-based lawyering: OGI application, online mobilization, and offline activism, and explores also state responses to each method of activism.  It  concludes that ROGI has resulted in new legal opportunities and resources for rights lawyering, which create certain systematic improvements within the formal legal framework possible.   However, facing extensive abuses of power and a fragile legal system, rights lawyers as well as other activist groups have turned to extra-institutional, extra-legal means and used transparency as a sword for a wide range of social agenda.  Extra-institutional efforts have been successful primarily in attracting publicity, raising public consciousness, and enhancing the mobilization capacities of rights lawyers and their allies.  Like the OGI application, online mobilization has rarely achieved dramatic social-legal changes.  At the same time, street action for transparency has incurred greater legal and political risks. 

Tuesday, May 22, 2018

Clement Chen & Anne Cheung on The Transparent Self under Big Data Profiling: Privacy and Chinese Legislation on the Social Credit System (Journal of Comparative Law)

"The Transparent Self under Big Data Profiling: Privacy and Chinese Legislation on the Social Credit System"
Yongxi Chen & Anne Cheung
The Journal of Comparative Law
published in Feb 2018
Volume 12, Issue 2, pp. 356-378
Introduction: Big data is one of the buzz phrases of the 21st century, concerning not only the digitalisation of data on billions of individuals, but also what those in power are able to do with that data.  The defining characteristic of big data is the capacity to search, aggregate and cross-reference large datasets for analysis to identify previously undetectable patterns, as well as the power to profile individuals, calculate risks, and monitor and even predict behaviour.  When big data is harvested by governments, the worry is that the totality of individuals' lives will be captured, that citizens will be monitored and that the Orwellian state will become a reality.
     In China, such a worry seems far from unfounded given the Chinese Communist Party's (CCP) roll-out of its powerful Social Credit System (SCS).  Launched at the national level in 2014, the system's aim is to assess the trustworthiness of Chinese citizens in keeping their promises and complying with legal rules, moral norms, and professional and ethical standards.  It is essentially an all-encompassing, penetrative system of personal data processing, manifested by the comprehensive collection and expansive use of personal data with the explicit intention on the Chinese government's part of harnessing the ambition and power of big data technology.  The SCS rates both business entities and individuals.  According to its blueprint, the records that are collected can be extensively used by the authorities and business entities alike for a variety of purposes broadly related to 'encouraging trustworthiness and punishing untrustworthiness'.
     Whilst the use of big data analytics in the context of credit scoring and the rating of individuals is not unique to China, in other jurisdictions it is usually confined to the financial arena and regulated by law.  What differentiates China is the scale of the data collected, the scope of its use and, particularly important for the purposes of this article, the apparent lack of a comprehensive legal system to protect personal data.  Despite the introduction of the Cyber Security Law in 2016 in relation to online data, the extension of civil law protection to consumer data in 2013, and the criminalisation of the unlawful gathering, receipt and sale of personal data in 2009, personal data as a general subject has yet to be clearly defined and effectively protected under Chinese law.   The rights that data subjects are entitled to under a personal data protection regime are rarely mentioned in China and are, at best, provided for under scattered sector-specific laws.
     Given the inadequate protection afforded to personal data in China, the country is an ideal social laboratory for big data experimentation, data intelligence and mass surveillance.  Individuals risk being reduced to transparent selves before the state in this uneven battle.  They are uncertain about what contributes to their social credit scores, how those scores are combined with the state system and how their data is interpreted and used.  In short, the big data-driven SCS is confronting Chinese citizens with major challenges to their privacy and personal data.
     Although the State Council's Planning Outline for the Construction of the Social Credit System ('SCS Outline' hereafter) sketches out an ambitious blueprint, it is the pilot legislation implemented at the local level since 2014 that has institutionalised the collection and use of social credit-related data.  To analyse China's emerging SCS under existing international legal principles concerning personal data protection, this article identifies and compares typical examples of relevant legislation at the local level and discusses their implications for personal data protection.  It argues that existing legislation and proposed regulations require substantial revisions to mitigate the impact of the SCS on data privacy and other interests critical to individual citizens.
     The article begins by mapping out the background to the construction of China's big data social laboratory and the SCS.  The next section examines the system's social management aim and comprehensive sanction system, as well as its nature as a collaborate project between the authorities and the business sector.  The section which follows then summarises the legislative history and evolving concept of social credit and analyses the nature of individuals' rights to personal data protection under China's uncoordinated legal framework.  The article then reviews local social credit legislation with reference to the three cardinal principles of personal data protection most closely related to data subjects' control over the processing of their data: firstly, the data collection principle,;secondly, the data usage principle, and thirdly, data subjects' right to access and correct their own data.  The final section concludes that although local legislation provides nominal rights of access to, and a few restrictions on, the collection and use of data, it has largely failed to secure meaningful control over personal data for individuals.  These legislative defects relate to the very purpose of the SCS and to extra-legal restrictions inherited from the pre-reform party-state regime.

Clement Chen on Taming the Right to Information and the Public Interest Test under China's FOI-like Law (Journal of Comparative Law)

"Taming the Right to Information: Motive Screening and the Public Interest Test under China's FOI-like Law"
Yongxi Chen
The Journal of Comparative Law
published in Feb 2018
Volume 12, Issue 2, pp. 203-215
Introduction: Promoting government accountability to the public is a core value common to freedom of information (FOI) laws around the world.  FOI law is primarily understood as an empowering tool for the civil society, for it enables citizens to take over the initiative in making government information available, in particular information necessary for the public to judge government performance, participate in public policy-making, and call administrative agencies to account for violations of law, corruption or maladministration.  That value is often echoed by Chinese officials who push through transparency reforms, and emphasized by jurists who hail the introduction of the Regulations on Open Government Information (ROGI) 2007 as a landmark improvement of the government-citizen relation or a major advance in 'democratic politics' in China.  Persistent denials of access to information concerning abuse of power and policy-making affecting crucial public interests, however, casts serious doubt on the adherence to this value in the ROGI's implementation.
     It is usually through two principles that a FOI law entrench the public accountability value.  The first is the 'requester-blind' principle which grants all members of the public a universal right to information irrespective of their identities and motives in accessing the information.  It ensures that all requesters are treated equally without any bias against those whose motives may not be favoured by officials.  It is a corollary of the essence of FOI law, i.e. government information should be disclosed by default, and should not be withheld unless it falls within the limited and statutorily prescribed regime of exceptions.  The second principle is that of subjecting exceptions to the public interest test.  This intends to ensure reducing the areas of secrecy to minimum and releasing information whose disclosure serves the public interest, including in particular accountability enhancement, that overrides the secrecy interests protected under the exemptions.  Although the ROGI is compatible with these two fundamental principles, its wording creates ambiguities which have been employed by government agencies to the detriment of this legislation's function in making the government accountable to the public.  The General Office of the State Council (Guowuyuan Bangongting, 'SC General Office' here after) issued interpretations of the ROGI to introduce a test of the requesters' needs, which actually screens the motives for access.  Agencies also tend to ignore the public interest associated with disclosure and shirk the balancing test.
     Being the sole external review body that enforces the right to information, the Chinese courts have a pivotal role to play in scrutinizing government decisions concerning these two principles.  Effective judicial scrutiny is important for the full functioning of the ROGI and and successful outcomes of the transparency reform.  The public interest test pertaining to information disclosure best illustrates the courts' view on what the values of transparency are in a society and a polity, and how important such values are when compared to the secrecy interests in a given circumstance.
     This article investigates the extent to which the public accountability value has been fostered by the ROGI by illustrating and assessing the judicial approaches to the motives of access and to the public interest test.  The section which follows criticises the problematic judicial responses to the SC General Office's interpretations, and identifies the discriminative treatment of three major sets of motive in access to information. The subsequent section summarizes Chinese judges' unique understandings of the public interest test in the FOI context, and examines the major categories of public interest that the courts have identified under two exemptions respectively.  The final section generalizes from its finding of the convergent results of both tests that there is a prevailing judicial policy to uphold 'defensive transparency' which is attached to the requester's own rights of the person and property ('personal or property right' hereafter), but to refrain from supporting 'civic transparency' - that is, the transparency to be unconditionally enjoyed by every citizen in respect of public scrutiny of government performance.  The Chinese courts have largely failed to yield their review power to uphold the pro-accountability value embodied in the ROGI, but have cooperated with administrative agencies in taming an otherwise politically significant right to information into a mediocre instrument for private interest assertion.
     In basing the investigation on representative cases, this article continues to use the methodology developed by the author in previous studies of the right to information in China.  Cases are collected from three sources that complement each other.  The first source is case collections published by the Supreme People's Court ('Supreme Court' hereafter) or compiled under its supervision.  The cases reported in these collections, called 'referential cases', are widely considered by the Chinese legal community to reflect to varying extends the intentions of the Supreme Court and its departments in guiding local courts on the adjudication in a particular field of law.  The second source is mainstream legal databases, including China Judgment Online, the official portal designated by the Supreme Court to publish the judgments rendered by courts at all levels, and ChinaLawInfo, the country's most comprehensive commercial databank.  In consideration of the overrepresentation of certain regions in the databases and the post-2013 spiralling of number of judgments on open government information (OGI) litigation, the scope of search is restricted to the judgments of the second instance in eight provincial units.  The selected units are dispersed across the country with different levels of industrialization.  Appeal judgements often involve more detailed examination of important legal issues than judgments of the first instance, and are more suggestive of mainstream judicial approaches.  The third source is news reports in fifty-nine Chinese media outlets which enjoy either great popularity or an appreciation of their professional quality, plus the 'Transparent China Online', a portal dedicated to news on OGI.  It should be pointed out that OGI cases reported by the media ('media-reported cases' hereafter) are more representative than reports of adjudicative practice in two senses.  First, they encompass cases whose judgements are withheld from online publication by the courts for various discretionary  reasons, including for instance the political sensitivity or inconvenience of the case.  Second, they are more evenly distributed geographically than those retrieved from the databases and Supreme Court-managed collections.  Searches within the three sources have yielded 289 cases which were adjudicated before the end of 2015 and which concern the issues discussed in this study.

Saturday, May 19, 2018

Asia’s First Interdisciplinary FinTech Professional Certificate Program @ HKU

HKU presents Asia’s first interdisciplinary Professional Certificate Program in FinTech on edX platform starting on  15 May 2018. 
     FinTech – short for Financial Technology – is transforming the world of finance, especially in Asia at a rate never seen before. It is essential that professionals working in finance, technology, regulation or FinTech and students studying related subjects are equipped with in-demand FinTech knowledge and skills in today’s world of finance. 
     The FinTech Certificate Program compiles a series of three courses providing students with the tools to understand the interaction of finance and technology across the financial system as well as insight into the major technologies involved and the emerging business models and players in the industry. The first course Introduction to FinTech commences on May 15 and will be followed by two courses, FinTech Ethics and Risks and Blockchain and FinTech: Basics, Applications and Limitations, which will open over the coming year. 
     Each course brings together leading experts in FinTech from a range of backgrounds, including professors, market professionals and entrepreneurs. Designed by leading academics from a range of disciplines with input from industry leaders including among others SuperCharger, the Centre for Finance, Technology and Entrepreneurship, Microsoft, PwC, the Asia Capital Markets Institute, the Standard Chartered Bank, Thompson Reuters, and other partners in financial services, FinTech startups and Techfins sectors. In each course, you will gain greater understanding of the key trends in finance, technology and regulation, to better prepare for not only the opportunities but also the risks and challenges, including to traditional financial institutions and business models and those working in them.
  • Introduction to FinTech (6 Week Course offered by HKU Faculty of Law) Starts on May 15 2018 (Enroll NOW
  • FinTech Ethics and Risks (6 Week Course offered by HKU Faculty of Business and Economics) Commences on May 2019 
  • Blockchain and FinTech: Basics, Applications and Limitations (6 Week Course offered by HKU Department of Computer Science at the Faculty of Engineering) Commences on May 2019 
     Course trailer:

Introduction to FinTech is a 6-week online course. In the course, you will learn about the major areas of FinTech including Money and Payment, Digital Finance and Alternative Finance. You will be introduced to major technological trends: Cryptocurrencies, Blockchain, AI and Big Data and see how they impact economies, markets, companies, and individuals. You will examine the role of Regulation and the implication of RegTech in the new world of data driven finance.
     Register at: (Registrations are free with a paying option for a course certificate.)  More details: For enquiries, please contact at

Friday, May 18, 2018

HKU Team Awarded Powell Gilbert Runner-up Prize at Oxford IP Law Moot 2018

L-R Kelvin Cheung, Esther Mak, Cedric Yeung, Alice Lee (coach)
Congratulations to HKU IP Moot Team which was awarded the Powell Gilbert Runner-up Prize for Best Written Submissions (Joint 2nd Place) in the 16th Annual Oxford International Intellectual Property Moot 2018​.
     The 16th Annual Oxford International Intellectual Property Moot 2018 was successfully held in Oxford from 15th to 17th March 2018. This year the Moot was extremely competitive, having received a record high of 66 written entries. The HKU Team consisted of Cheung Siu Hin Kelvin (PCLL), Mak Hoi Kay Esther (PCLL) and Yeung Chi Chung Cedric (LLB 4), and was coached by Ms Alice Lee and Mr Jason Yu. The HKU Team successfully proceeded to the oral rounds, beating University College London, University of Ottawa and University of Alberta in the preliminaries and was awarded the runner up prize for Best Written Submissions. ​ 
   The Team would like to express their sincere gratitude to Professor Anselmo Reyes, Ms Winnie Tam SC and past members of the HKU IP Moot Teams for their kind assistance. The Team must also give their heartfelt thanks to their two Team Coaches, who gave continuing support and guidance to the Team throughout the competition. ​

Sunday, May 13, 2018

Richard Cullen on The New US Perception of China (IPP Review)

"The New US Perception of China"
Richard Cullen
IPP Review
April 26 2018
The American perception of China has gone through an intriguing transition over the last century. Once, compassion was dominant. Today, increasing hostility is prominent with rumbles of a serious trade war in the air. These US views have significantly shaped the discernment of China around the world over the last 100 years. They continue to do so ... 
     My aim in this essay is: to look at how this discontented transition from empathy to antipathy has come to pass; to examine what it has to tell us about the state of China and the US today; and to consider where it may be leading.
     It is a fact that China, within its remarkable and enduring history, did not develop a system of governance where the governed played any sort of democratic role in selecting those who would govern. Such a system did evolve in a partial but significant way in ancient Greece around 200 years before China’s unifying Qin Dynasty was established in 221 BC. That experience in Greece has, over many centuries, fundamentally shaped the development of Western views (especially during The Enlightenment) on the best form of political governance. China meanwhile has retained a top-down authoritarian governance system to this day, in keeping with its millennial, traditional understanding of how best to govern. As we will see, that governance system has performed exceptionally well over the last 40 years by delivering an unparalleled improvement in the livelihood of millions, notwithstanding any democratic deficit.
     As the American perspective on China has moved from bewilderment to increasing antipathy, the American account of what has happened constantly stresses that the US and its allies are engaged in a recommenced battle to protect democratic values from a fresh authoritarian challenge spearheaded by China. In fact, this outward justification is energized, above all, by the deeper challenge to US global political supremacy now unfolding. The focus on telling the enfolding story, as seen from Washington, makes very good sense: a respected Harvard academic and former senior member of the State Department, Joseph Nye, recently observed in the journal Foreign Affairs that “a strong narrative is a source of power.”
     The current edging towards a Sino-American trade war is one manifestation of the significant, geopolitical mood change being examined in this essay. This very important trade quarrel is mentioned peripherally but it is not dealt with in any central way, here.
The Rise of a Superpower and the Retreat of Another
... This transition from one dominant world power to the next proceeded with minimal resentment. Although the superpower “torch” was moving out of the British Empire, the new dominant power was closely related in terms of ethnicity, language and deeply shared traditions. Moreover, the UK soon enough found itself in need of vital US assistance to secure the defeat of Germany in World War I. Finally, and perhaps most importantly, the UK was able to rely on its own mature understanding of the changes underway and thus avoid too much counter-productive, national swaggering.
It is now around 100 years since that fundamental international transition. During this period, the US has played a pivotal military role in stopping the German–Central Powers’ assault on Europe in World War I. In World War II, the US role was still more crucial in defeating the unspeakable rise of Nazism and destroying the barely less horrific Japanese onslaught across East Asia, Southeast Asia and the Pacific...
Pax Americana & Sharp Power
... By the end of World War II, the US was outstandingly dominant, despite the cost of fighting the war. The narrative of how it has deployed that strength since has a positive side (the Marshall Plan in Germany, for example) plus an accompanying, grim side, which gathered distinct momentum as the Cold War began.
   This US supremacy ushered in an era within the Western Hemisphere, especially, of continued peace subject to American oversight. It also facilitated foundation building for the new global trading system. As we will see, China has, over the last 40 years, taken exceptional advantage of this comprehensive global restructuring.
   This US ascendancy was built on immense power, which included the capacity, regularly used, to shape transnational outcomes to a remarkable extent.
   This era has regularly been referred to as Pax Americana drawing on terminology extending back the Pax Romana of the early centuries of the Roman Empire (after 27 AD). In like manner, it was said, the clear dominance of American military, economic and political power provided the means for the US to oversee an era of extended peace particularly after World War II.
   Fairly recently, certain leading US commentators have critically analyzed what they call China’s sharp power. This sharp power is juxtaposed with two other long, commonly used, political terms — soft power and hard power. Christopher Walker and Jessica Ludwig in their article “The Meaning of Sharp Power” in the journal Foreign Affairs in November 2017 argued that sharp power “is not principally about attraction or even persuasion; instead, it centers on distraction and manipulation.” Soft power is a term coined by Joseph F Nye in 1990, which he has more recently defined in the following way: “soft power is the ability to affect others by attraction and persuasion rather than through the hard power of coercion and payment.”
    In fact, the US has itself deployed all three powers — soft, sharp and hard — for many decades... Click here to read the full text.