Thursday, April 30, 2015

Recent Faculty Contributions to the Hong Kong Political Reform Debate

On 22 April 2015, the Hong Kong Government released its Consultation Document and Proposals for the Method of Selecting the Chief Executive by Universal Suffrage in 2017.  It proposed that 
  • the method for forming the nominating committee (NC) be the same as that for the existing 1200 member Election Committee, 
  • candidates need only obtain 120 (10 per cent) recommendations from NC members in order to stand for nomination, 
  • a candidate can obtain no more than 240 recommendations, 
  • to be nominated, a recommended candidate needs the support of more than half of the members of the NC,
  • NC members must vote for at least two candidates and up to the total number of candidates - in determining the two or three candidates to be nominated,
  • the universal suffrage vote will be conducted on a first-past-the-post basis - no minimum voter turnout rate, no minimum vote share, no none-of-the-above option, and only one round of voting,
  • the current restriction that prevents the Chief Executive from being a member of a political party is to remain.
Faculty members have been active in offering a diverse range of commentary on the government's proposal.  Professor Albert Chen was interviewed on Cable TV on 26 April 2015, answering questions from a studio audience.  In an earlier interview on 23 April 2015 also on Cable TV, he advocated a code of practice to inform nominations by NC members to ensure a broader spectrum of candidates will be nominated.  His proposals were explained in reports in the South China Morning Post (24 April 2015).
     On 23 April 2015, Professor Michael Davis was a member of a panel discussing political reform on the Backchat radio programme on RTHK Radio 3. His views were also quoted extensively in international media.  
     Associate Professor Benny Tai wrote on "Only referendum can tell true public opinion about reform plan" for the Hong Kong Economic Journal, published in English on 27 April 2015.  
     Professor Simon Young contributed an op-ed in the South China Morning Post on 30 April 2015, arguing that the pan-democrats should counter-propose an increase in the maximum number of nominated candidates to five.
     On 30 April 2015, Professor Johannes Chan expressed the view to RTHK that he did not believe the electoral method would change after 2017 if the current proposal was now accepted.

Tuesday, April 28, 2015

Domestic Workers' Roundtable Hosted by CCPL (24 April 2015)

Faculty of Law, The University of Hong Kong, 25 April 2015
Coalition proposes models for collaboration between governments to enhance the experience of Hong Kong’s domestic workers and their employers.  Ground-breaking summit aims to unite governments, employers and workers rights groups.
The Domestic Worker Round Table (DWRT) - which is sponsored by the University of Hong Kong’s Centre for Comparative and Public Law (CCPL) of the Faculty of Law and the Hong Kong Public Interest Law & Advocacy Society (PILAS) – adopts a unique approach to enhancing the rights and experiences of domestic workers in Hong Kong. The DWRT hosted a ground-breaking first-of-its-kind summit today (April 25) at the University of Hong Kong. It brought together multiple key stakeholders, both government and non-government, working on these issues and provides a structured, multi-level platform for all concerned parties to address critical issues that impact the situation of domestic workers in Hong Kong. The governments concerned include the HKSAR and the sending states of Hong Kong’s domestic workers, including Indonesia, the Philippines, Sri Lanka, Thailand, Bangladesh, India, Nepal and Myanmar. Representatives of these sending states participated in the Roundtable.
     The one-day consultation also included NGOs, domestic worker rights groups, academics, law firms, employer rights groups, labor unions and representatives from the private sector in an attempt to foster continuing dialogue and concerted action on domestic worker issues. The primary issues discussed included: financial abuse by placement agencies and access to justice in the HKSAR to facilitate a more systematic approach to tackling the challenges posed to domestic workers in Hong Kong.
     The coalition aims to facilitate better cooperation between the governments of Hong Kong and domestic worker sending states. It hopes to enhance the worker transition to life in Hong Kong, to empower both employers and domestic workers and to focus their collective energies on dealing with exploitative employment agencies and money lenders. Through a roundtable process, the coalition hopes to collaboratively improve Hong Kong’s domestic migrant labour system, as this system is increasingly important to Hong Kong’s long-term prosperity and status as a well-developed legal jurisdiction.
     “This is the first time that such a wide range of stakeholders has collaborated on Domestic Worker issues.” said David Bishop, of the Fair Employment Agency. “We believe this is a very positive sign that progress can be made, and we plan to continue the process until we achieve our goals,” he continued.
     Puja Kapai, Associate Professor of Law and Director of the Centre for Comparative and Public Law at the University of Hong Kong, said: “Co-operation between the Hong Kong Government and the governments of foreign domestic worker sending states is absolutely crucial for protecting domestic workers’ rights and preventing future abuse and tragedies which have exposed the critical gaps in law and policy. We are encouraged to see that so many of the sending states’ representatives are attending this ground breaking meeting and are open to dialogue and communication.”
    Migrant labour has traditionally played an important but often undervalued role in the development of Hong Kong. “The need for domestic labour in Hong Kong continues to grow, as the population ages and as incomes rise, and therefore it is important that the system works for everyone: the employers, the domestic workers, and the respective governments,” emphasized Allan Bell, a director of PILAS, co-sponsor of the DWRT.
     Mark Daly, Principal of Daly & Associates and lawyer involved in the legal challenge for permanent residence for foreign domestic workers, said: “After the CFA decision in Vallejos, the NGOs summed it up best saying it was ‘the judicial seal on social exclusion.’ We have to do better and use all means - in and outside court - to provide justice for all. Enhanced collaboration and transparency through programs like this Roundtable are a step in the right direction.”
     The DWRT has three key objectives:
1. It is encouraging the establishment of an Intergovernmental Working Group on Domestic Workers between the Governments of the sending states and the HKSAR to ensure co-operation at the policy level and to help improve the regulation of, and law enforcement against, domestic worker employment agencies and money lenders in Hong Kong and in the sending states. 
2. It is calling for a mandatory induction and orientation process to include support and participation from the Hong Kong Government, sending states, employment agencies and NGOs, in line with best practices in other regional jurisdictions. 
3. It is calling for the establishment of a joint Police-Immigration-Labour Domestic Worker Incident Reporting Unit and an Inter-Departmental Working Group between the HKSAR Government’s Departments of Immigration and Labour to cooperate in areas such as cross-jurisdictional issues, enforcement against rogue agencies and data monitoring and collection.
     Members of the DWRT recognize the important role that foreign domestic workers have had on Hong Kong’s economic development, which include allowing an increasing number of local women to join the labour force and caring for the elderly. However, this system has been threatened in recent years by unethical and sometimes illegal actions of stakeholders within the system, including placement agencies and money lenders. The DWRT recognizes the efforts of both sending states and the Hong Kong government to improve conditions for domestic workers in recent months. The primary aim of the Roundtable is that through increased cooperation and transparency, Hong Kong can become a model jurisdiction for the rest of Asia to follow.
     Eni Lestari, spokeswoman for the Asian Migrants' Coordinating Body and the Justice for Erwiana and All Migrant Domestic Workers Committee, said: “Foreign Domestic Workers in Hong Kong need better protection. We are not slaves. We are human beings with human rights that deserve to be respected. This Roundtable meeting is a real step forward.”
     For media enquiries, please contact Dr. Sherif Elgebeily email: ccplaro@hku.hk; tel: 39171938.

Simon Young on Scandalising the Judiciary in Hong Kong

CFA Building (Elisa Rolle)
In Hong Kong making ill-advised statements against courts or judges may land you in jail for scandalising the judiciary. It is contempt of court if a person, by words or conduct, intentionally or recklessly creates a real risk of undermining public confidence in the administration of justice (Wong Yeung Ng v The Secretary for Justice [1999] 2 HKLRD 293, [51] (CA), leave to CFA refused in [1999] 3 HKC 143).  Criticism is fine, especially in a place that treasures freedom of expression, but it should offer “reasonable argument or expostulation” (R v Gray [1900] 2 QB 36, 40) and be “within the limits of reasonable courtesy and good faith” (R v Commissioner of Police of the Metropolis, ex p Blackburn (No 2) [1968] 2 QB 150, 155), however outspoken or vigorously expressed (The Secretary for Justice v The Oriental Press Group Ltd [1998] 2 HKLRD 123, [77]). What is prohibited is “scurrilous abuse” (“a personal attack on a judge in abusive language which vilifies the judge rather than simply points out his errors”) (Oriental Press Group, ibid, [49]) or imputing improper motives or bias without any justification (Ambard v Attorney General for Trinidad and Tobago [1935] AC 322, 335). It is not the same as defamation or libel, which aim to protect the reputation of an individual; the concern is with people’s confidence in the administration of justice, an essential condition of the rule of law (The State v Mamabolo (2001) 3 SA 409, [24] (CC); Dhooharika v The DPP (Mauritius) [2014] UKPC 11, [42]). 
     Hong Kong has had at least three cases of scandalising the judiciary. The first is the infamous case of a local newspaper that carried on a “campaign against the Judiciary” as revenge for decisions made against it in several cases (Oriental Press Group, supra, [1]). The campaign consisted of a series of articles that alleged in abusive language a conspiracy between the courts and government to persecute the newspaper and culminated in a three-day round-the-clock paparazzi-style stalking of a Court of Appeal judge. These were low days for the rule of law as many of the newspaper’s readers sent in letters of support for the campaign (Oriental Press Group, ibid, [14], [20-21]). Ironically the newspaper was undermining the very institution that in the end delivered justice in its favour in two Court of Final Appeal decisions (Oriental Press Group Ltd v Apple Daily Ltd (1997-1998) 1 HKCFAR 208; Oriental Daily Publisher Ltd v Commissioner for Television and Entertainment Licensing Authority (1997-1998) 1 HKCFAR 279). 
     The other two cases concerned a defendant, who was known to the court as a vexatious litigant. He tried to stop a judge from presiding in his case by “indulging in an abusive attack on the integrity” of the judge, who patiently sat through the “verbal assault” (Secretary for Justice v Choy Bing Wing, unreported, HCMP4694/2003, 25 Oct 2005, CFI). The same defendant also wrote a series of letters using profanity and other abuse to attack the integrity of the court registrar (Secretary for Justice v Choy Bing Wing [2011] 2 HKC 342 (CFI)). 
     It is worth asking whether we should retain this common law offence. England and Wales abolished it in June 2013 (Crime and Courts Act 2013, s. 33; Law Commission Report No 335 (Dec 2012)). Lord Lester QC and Lord Pannick QC were strong proponents of abolition. The latter argued that confidence is what it is and prosecuting people for scandalising will not improve public confidence if it is already low ([2014] Public Law 4, 8-9). He wrote that “respect for the judiciary…is undermined rather than strengthened by the existence and use of a criminal offence which provides special protection against free speech relating to the judiciary” (ibid, 10). In Hong Kong the repute of the judiciary is solid and insults directed at it bounce back immediately upon the character of those who lobbed the abuse. But where the abuse becomes disruptive the offence helps to restore the “circumstances of calm and dignity” needed for courts to get on with their work (Arlidge, Eady & Smith on Contempt, 2nd ed (Sweet & Maxwell 1999) 16-18; Pannick, supra, 9).  Written by Simon NM Young.  An edited version of this article was published in the South China Morning Post on 28 April 2015.

Saturday, April 25, 2015

New Issue: SSRN Legal Studies Research Paper Series

Vol. 5, No. 3, 24 April 2015
1. Attribution and the Fraud Exception
Ernest Lim, University of Hong Kong - Faculty of Law

2. Independence Referendum, State Sovereignty and International Law: International Legal Review of Independence Referendum from the Perspective of Theoretical Foundation and Global Practice
Anlei Zuo, The University of Hong Kong, Faculty of Law, Students

3. Can International Law Help Resolve the Conflicts Over Uninhabited Islands in the East China Sea?
Michael C. Davis, The University of Hong Kong - Faculty of Law

4. The Shadow Banking System — Why It Will Hamper the Effectiveness of Basel III
Emily Lee, The University of Hong Kong - Faculty of Law

5. Comparing Hong Kong and Chinese Insolvency Laws and Their Cross-Border Complexities
Emily Lee, The University of Hong Kong - Faculty of Law

Congratulations to the Four New High Court Judges

Congratulations to the Judge Bebe Chu (LLB 1974; PCLL 1975), Judge David Lok (LLB 1987; PCLL 1988), Judge Joseph Yau (LLB 1982; PCLL 1983), and Judge Albert Wong on their appointment to the High Court by the Chief Executive on the recommendation of the Judicial Officers Recommendation Commission, as announced on 23 April 2015.  At the time of appointment, Judge Chu was Principal Family Court Judge and the others were serving as District Court Judges.   Click here for the official announcement.

Wednesday, April 22, 2015

Say Goo Appointed Distinguished Visiting Professor, International School of Financial Law

Congratulations to Say Goo on his recent appointment as Distinguished Visiting Professor at the International School of Financial Law, East China University of Political Science and Law, Shanghai.  Click here to see other photos from the event.  Professor Goo is Director of the Asian Institute of International Financial Law.

Tuesday, April 21, 2015

Benny Tai on the False Legitimacy of Pocketing Political Reform

"How 'pocket it first' could bring the harm of false legitimacy"
Benny Tai
Hong Kong Economic Journal
17 April 2015
The Hong Kong government, central authorities in Beijing, the pro-establishment camp and even some pan-democrats have recently been on a massive campaign to persuade the people of Hong Kong to “pocket it first” with regard to the electoral reform plan currently on the table.
     Those who are against the proposal argue that any pre-screened candidate who is eventually elected the chief executive through one person one vote will have “false legitimacy”. There are a lot of people out there who don’t know what “false legitimacy” means. In order to understand that, it is important to first explain the meaning “legitimacy”.
     Legitimacy refers to the status in which people generally believe the governance of a regime is appropriate, and they accept its governance on their own accord. A high degree of legitimacy enables a regime to press ahead with policy decisions and stay the course amid controversies or even in the face of fierce opposition, because it was elected through an open and fair election with a clear public mandate to govern in the name of the people...  Click here to read the full article.

Monday, April 20, 2015

Marco Wan Guest Edits Law Text Culture - Latest Volume

"The Rule of Law and the Cultural Imaginary in (Post-)colonial East Asia"
Law Text Culture, Volume 18 (2014)
Guest Editors: Marco Wan and Janny Leung
Abstract to the Introduction
This volume of Law/Text/Culture explores how the rule of law is represented in a variety of discourses both within and outside the legal domain –  including film, television, opera, court cases, and popular magazines – in East Asia. It re-orients the study of ‘Law and Humanities’ by shifting the focus from the Western World to East Asia, and presents a new approach to the study of East Asian legal culture by approaching the region through a post-colonial lens. The term ‘cultural imaginary’ is broadly defined, and includes articulations or representations of the rule of law in a range of cultural products in human society, including, but not limited to, the law itself.   Other contributors to the special volume include Elaine Ho and Johannes Chan, Alison Conner, and Chris Hutton.  Click here to download the articles.

Sunday, April 19, 2015

Kelley Loper Interviewed in Pearl Report (TVB) on Discrimination Law Review

"Equal To"
Pearl Report (TVB Pearl)
9 March 2015
Reporter: Chris Lincoln
The Equal Opportunities Commission is sorting through more than 100,000 responses to its first ever review of discrimination law in Hong Kong.  A consultation posed broad questions for the public to consider.  Its responses focused on two things; the race law, and protection for sexual minorities. Same-sex relationships exist in Hong Kong, but are barely recognised officially. The EOC's review on discrimination asked the public whether that should change.  Kelley Loper was interviewed on discrimination against Chinese mainland visitors and persons in same sex relationships.  Click here to view the half-hour programme.

Saturday, April 18, 2015

Hong Kong Lawyer Interviews the Three Law School Deans

Hong Kong Lawyer
April 2015
As the academic year for law students comes to a close, the Deans from Hong Kong’s three law schools come together to discuss how legal education and the academic research environment in Hong Kong can be improved and how they are building upon their predecessors’ legacies.
Christopher Gane, Dean of the Faculty of Law of The Chinese University of Hong Kong (“CUHK”), Michael Hor, Dean of the Faculty of Law of The University of Hong Kong (“HKU”) and Geraint Howells, Dean of the Law School at City University of Hong Kong (“CityU”) have all been tasked with leading their institutions through challenging times when legal education around the world is going through profound changes as a result of globalisation, technology and changes in the way governments are allowing legal services to be provided.
     The Deans have also been thrust into the unenviable position of steering their faculty and students through the politically turbulent events of 2014, while simultaneously striving to offer members of the community a platform to engage in an informed, constructive and friendly dialogue on the legal dimensions of these events.
     Despite these challenges, the three Deans have remained committed to being role models for their students and to building upon their predecessors’ legacies. Dean Hor, for instance, has striven to impress upon his students the need to have worthy ideals, like integrity and professionalism, and the tenacity to never lose them, while Deans Gane and Howells have remained visibly committed to promoting academic excellence and enhancing the interchange between universities and the profession.... Click here to read the full article.

Friday, April 17, 2015

New Book: International Economic Law after the Global Crisis

International Economic Law after the Global Crisis: A Tale of Fragmented Disciplines
Editors: CL Lim and Bryan Mercurio
Cambridge University Press
April 2015, 557 pp.
Description: This collection explores the theme of fragmentation within international economic law as the world emerges from the 2008 global financial crisis, the subsequent recession and the European sovereign debt crisis which began in early 2010. The post-crisis 'moment' itself forms a contemporary backdrop to the book's focus on fragmentation as it traces the evolution of the international economic system from the original Bretton Woods design in the aftermath of the Second World War to the present time. The volume covers issues concerning monetary cooperation, trade and finance, trade and its linkages, international investment law, intellectual property protection and climate change. By connecting a broad, cross-disciplinary survey of international economic law with contemporary debate over international norm and authority fragmentation, the book demonstrates that this has been essentially a fragmented and multi-focal system of international economic regulation.  Contributors: CL Lim, Bryan Mercurio, Rolf H. Weber, Elisabetta Cervone, Emilios Avgouleas, Douglas W. Arner, Ross P. Buckley, An Hertogen, Junji Nakagawa, Shin-yi Peng, Martins Paparinskis, Anita K. Krug, Julien Chaisse, Juan Ignacio Stampalija, Antoine Martin, Tania Voon, Andrew Mitchell, James Munro, Lorand Bartels, Rafael Leal-Arcas, Andrew Filis.  
     Professor Lim is a member of the Global Advisory Board of the Center for International Investment and Commercial Arbitration which was recently launched in Lahore, Pakistan.  

Thursday, April 16, 2015

Marco Wan Assumes Managing Editorship of Law & Literature

Congratulations to Marco Wan who will be taking over from Professor Peter Goodrich as Managing Editor of Law & Literature, published by Routledge, from the next issue onwards.  Formerly known as the Cardozo Studies in Law and Literature, which began publication in 1989, Law & Literature is regarded as the leading interdisciplinary law journal directed to the law and the arts, and its editorial board comprises many of the leading scholars in the area.  The journal is published three issues per year.  Associate Dean Wan published "The Unwritten Laws of Files" in volume 22(1), Spring 2010, pp. 199-211.

New Articles on Hong Kong in the Journal of Democracy

Click here to access the full text articles.
"Hong Kong's Umbrella Movement: Beijing's Broken Promises"
Vol. 26(2), pp. 101-110
Abstract: China’s “one country, two systems” model elaborated in the 1984 Sino-British Joint Declaration and the 1990 Hong Kong Basic Law promise Hong Kong a high degree of autonomy, universal suffrage, human rights and the rule of law. The June 2014 Chinese White Paper on the “one country, two systems” model and the August 2014 NPC Standing Committee decision on democratic development undermined both the rule of law and Hong Kong’s democratic development. This essay argues Hong Kong’s “one country, two systems” model is broken. A high degree of autonomy and the rule of law can no longer be maintained without democracy.

Vol. 26(2), pp. 111-121
Abstract: Hong Kong’s Umbrella Movement occupied commercial districts for 79 days, from September 28 to December 15, 2014. The movement is so named because protestors opened umbrellas to shield themselves from the police’s pepper spray and tear gas. The sudden explosion of public outrage had deep roots. This essay examines how the Hong Kong government fueled dissent through its hardline rejection of democracy and use of excessive police force. The movement demanded “genuine universal suffrage” because successive chief executives unaccountable to the public have eroded Hong Kong’s freedoms. Protestors will persist on or off streets if the root causes are unresolved.

Professor Davis was also interviewed recently by Time on whether the "umbrella revolutionaries" will return to the streets.

Tuesday, April 14, 2015

New Book: Cartels in Asia (Thomas Cheng and others)

Cartels in Asia: Law & Practice
Editors: Thomas Cheng, Sandra Marco Colino, Burton Ong
Wolters Kluwer
March 2015, 353 pp.
Description: Competition law authorities around the world almost invariably make combating cartels an enforcement priority because such forms of collusive behaviour are unequivocally harmful to competition. Hard core cartel agreements typically involve one or more of the most anti-competitive forms of conduct — price-fixing, bid-rigging, market allocation and output restrictions — and frequently attract severe legal sanctions in most competition law jurisdictions. However, despite the general agreement among these jurisdictions that cartel activities should be treated unfavourably as a matter of legal principle, the specific features of each legal regime vary from country to country as each jurisdiction must implement laws that are suited to their respective political and economic circumstances. 
     This title seeks to provide an Asian perspective on a range of legal issues related to anti-cartel laws across a selection of countries in Asia, including Hong Kong, China, Japan, Korea, Taiwan, India, Vietnam and Singapore. Our goal is to examine contemporary issues facing the competition law regimes in these countries, with their diverse political systems and market conditions, and to provide insights into the policy challenges faced by their competition authorities in the enforcement of their national anti-cartel laws.

Monday, April 13, 2015

Tony Carty on International Standards in Hong Kong Political Reform

Nominating Committee and International Standard under the 
Debate of Political Reform in Hong Kong
Introduction
Usually in Hong Kong at present this topic is taken to be directed to the 31 August 2014 Standing Committee of the National People's Congress (SCNPC) Decision concerning the 2017 Chief Executive Elections. The decision prescribes that only two to three candidates may stand who have been nominated by the Nominating Committee, constituted much as for the 2012 election, with the additional prescription that each candidate must obtain more than half the votes of the Nominating Committee. The general criticism is made that, with weighted voting through the Functional Constituencies, a “pro-Beijing majority” will screen out “Pan-Democratic” candidates. This situation is then argued to contravene an international standard the substance of which is enshrined in article 25 of the International Covenant of Civil and Political Rights (ICCPR). This provides, inter alia, that every citizen shall have the right to stand for election and to vote in elections without unreasonable restrictions. 
     It is very difficult to contribute to this discussion as a matter of legal, textual analysis of constitutional documents in any manner which can add usefully to the already decades long existing debate. Given the politically charged quality of the debate, where textual arguments are supposed to serve wider political ends, it is well neigh impossible to contribute conclusively to the satisfaction of both sides of the political divide in Hong Kong. The Pan Democrats (referring to a political block in the Hong Kong Legislative Council), the Hong Kong Bar Association and many in the Hong Kong Law Faculty argue that, whatever the reservations which the United Kingdom and the PRC have made to side step article 25 of the Covenant, it still represents an international standard which has to govern the political reform debate. The HK Government responds with rigorous positive law arguments that the ICCPR article 25 does not apply, that the true standards applicable to Hong Kong are in the Basic Law and in particular article 45. The ICCPR Human Rights Committee argues against the HK Government both as a matter of law and policy.
      This paper accepts that a matter of positive international law, there is no doubt that the Hong Kong Government’s position is correct. However, it wishes to go beyond purely textual analysis of binding legal instruments to make some general arguments about the nature of international law, which appear to be missing from the debate about article 25 ICCPR. International law, of which the ICCPR is a part, remains the law among sovereign states. It regulates the relations of states upon a consensual basis. Generally, this law does not try to regulate the birth or constitution of states or their internal affairs, simply because this is beyond the physical capacity and also outside the interest of states. At the same time, there is no international judicial authority or legal sanctioning framework, whereby states impose upon one another legal duties with respect to the internal affairs of one another. The ICCPR Human Rights Committee has the power to hear individual petitions where individual states permit it and the Committee may issues expert opinions. However, this does not alter the fundamental structure of international society. These expert opinions are not legally binding and states may pay whatever attention to them as suits them.

The Geopolitics of International Law
As a matter also of international relations theory, the world community does not constitute the shape of individual national communities. These constitute themselves and then they come to face one another at the international, i.e. inter-state level. Individual disputes and conflictual histories shape individual countries in their relations with one another, but there is no overwhelming global authority that shapes and constitutes all of the states of the world systematically according to any particular model. This is not to say that the United Nations Security Council may not from time to time authorize some states to attempt as much. Kosovo and Afghanistan are unpromising examples of international administration. The Libyan episode of Security Council authorized intervention has been recognized as a disaster and the failure of global intervention in Syria shows the nemesis of idealist doctrines of the rights of some states to protect the citizens of others. Now the United States, Britain, Australia and Canada, from whom the Pan-Democrats hope so much for diplomatic support, are locked in a fierce war with the Islamic State, effectively defending autocratic military oligarchies in the Saudi Peninsula and the Persian Gulf against populist, however distasteful, forces.
     This is the true context of the development of international law relations between Britain and China with respect to Hong Kong. The origin of article 45 of the Basic Law is in the Joint Declaration of 1984 which provides (Paragraph 3.4) that the Chief Executive will be appointed by the Central People’s Government on the basis of the results of elections or consultations to be held locally. These exact words form the first paragraph of article 45 of the Basic Law. The now published Archival records of the British Cabinet and Prime Minister’s Papers of 1984 show clearly that the British recognized how, obviously, a directly elected Chief Executive would greatly favor the autonomy of Hong Kong, but that so much could not be obtained. Given this fact the National Archival record shows that the British thought the best course was to present the agreement reached with China to the Hong Kong people on a non-negotiable basis, the alternative being that China would shape the constitution of Hong Kong unilaterally. [i]
     The Chinese perspective, never formally admitted on the British side, was that Hong Kong was torn from the Chinese motherland in two notorious “Opium Wars”, both of which were recognised at the time by British international lawyers, politicians and public opinion generally as unjust.[ii] Of course this disagreement is recognised in the Joint Declaration itself, where the British refer to restoring a sovereignty which the Chinese declare themselves to be resuming, in articles 1 and 2 of the Joint Declaration.
     This history is fundamental to the question whether there is in fact a Hong Kong people, as distinct from simply a population in Hong Kong which is part of the people of China in one country, China. This political, historical compromise which the British and the Chinese have made is essential to the issue of the patriotism of the people of Hong Kong. The compromise was a reflection of the balance of power between Britain and China, a balance which has not changed since 1984. The largely Pan-Democrat criticism of China reproduced uncritically in the latest UK House of Commons Foreign Affairs Committee Report[iii] is accompanied by a careful exposition of the ambiguity and equivocation of the British Government towards China in the face of Hong Kong protests. This is nothing more than fair evidence that there is little Britain can do, if it is not to try to upset the geo-political balance of South East Asia. In addition Britain is too busy in the Middle East and the Persian Gulf. 
     It is obvious that an untrammeled, Nomination Committee free election of a Chief Executive would put the political entity of Hong Kong in a position, in the terms of the International Court of Justice Advisory Opinion on the Declaration of Independence of Kosovo, to declare independence of China without contravening international law.[iv] Given the historical situation of Hong Kong in relation to China the acceptance of any nomination procedure which did not ensure a majority of nominators sympathetic to China would be a strange disregard of national interest and security in a very volatile time of world power tensions. At a time when the USA is actively encouraging China’s opponents in the South and East China Sea, Hong Kong would move into the US (and UK) sphere of political and military interest. In spite of repeated efforts of Pan-democratic lawyers and politicians to elicit American and British support (and only such support) in their struggle against the Chinese Government, it appears that these states do not consider the moment strategically opportune to afford significant support. Hong Kong is not the Ukraine in their eyes.

The Politics, also sometimes Geo-Politics of Human Rights Law
It is more and more recognised in the Anglo-Saxon legal and political world that human rights language serves firstly a political purpose. It is ambiguous language which may be used by either side in a political struggle so as to attempt to compel a favorable outcome by insisting that the language can have only one meaning. This development is known as the juridicization of politics. James Allan, a Canadian academic lawyer based in Australia, campaigns against the introduction into Australia of a Canadian style Bill of Rights. To do so he argues specifically against so-called international standards evoked from non-binding international norms, which represent nothing but the personal preferences of unelected, supposed experts in a discipline such as human rights law, which is riddled with the indeterminacy of its basic concepts.[v] The effect of appeal to so-called international standards, mainly in the matter of US case law, where none of these standards have been ratified by the US, has meant that controversial issues of family, child and gender law have been decided not merely in the absence of any compelling interpretation of the international norm, but also in flagrant violation of the national or local will expressed in popular referenda. 
     Allan, and with him the political scientist, Francis Fukuyama, argue that it is a generalized, i.e. global phenomenon for blocked political societies, which is to say most democratic societies, but particularly the United States and Australia, to resort to the fetish of judicial authority to resolve political disputes. The judges’ appeal to international, non-binding standards, is not to introduce or reinforce democracy but to offer an escape from the consequences of the failure of an effective or healthy democratic discourse capable of energizing a compromise of social interests and groupings.[vi]
      This is the context in which to view the extraordinary dexterity of the arguments pro- and con the meaning of article 25 of the ICCPR in the Hong Kong context. All of the arguments used are delightful from the perspective of a legal aesthetic of argument. None of them can offer an outcome to the political impasse. As for the UK reservation to article 25(b), and its continuance by China, one might say that the Treaty Powers intended to accept that the principle of democratic decolonization leading to independence (article 73 of the United Nations Charter) should not apply to Hong Kong. In the usual colonial context democracy was the path to independence. This should not apply to Hong Kong, as it was a wrongfully seized territory which should be returned to the motherland. 
     However, it is always possible for a lawyer to quibble. That is why Confucius thought Law no pathway to Virtue. The first step is to say that while there may be no duty to have elected legislative and executive councils, once the process of having elected councils has begun, then the UK reservation to article 25 is redundant. The proviso becomes redundant. This is well known to be the view of the UN Human Rights Committee. You need do nothing to introduce reform but if you undertake to introduce it gradually then international law will seize the process out of your control. In the so-called Scoping Report, the British Institute of International Law points out how the reservation merely says that article 25(b) only applies in so far as that provision may require the establishment of a Legislative or Executive Council, but that if the UK or China accept to have such an elected council the reservation is redundant. If the reservation had been intended to exclude all obligations under article 25(b) it would have simply said that the Government of the UK reserves the right not to apply article 25(b).[vii]
     The snag, for the Pan-democrats, is that article 25 does not require the direct election of the Chief Executive. This may well be why the reservation makes no mention of Chief Executive Elections. The Scoping Report points out that it cannot be held that article 25 requires the Chief Executive to be directly elected, and so the reservation would not have needed to cover this eventuality.[viii]
     However, the UN Human Rights Committee does not agree. It has held that article 25 of the ICCPR extends to the election of the Russian President. Yet, once again, a discordant note is struck by the UK Supreme Court in Moohan and another v The Lord Advocate a case concerning whether prisoners had a right to vote in the Scottish referendum. Lord Hodge, speaking for the majority of the judges, noted how the Human Rights Committee considered that article 25 covered a vote on the election of the Russian President as the wording of article 25 is to cover citizens participating directly in public affairs by holding executive office. However, Lord Hodge remarked how the Strasburg European Court of Human Rights reached a different conclusion on the same issue when interpreting A3P1 of the European Convention on Human Rights, whose wording is in fact narrower and specifically refers to the legislature.[ix] Nonetheless, the discrepancy between Strasburg and New York/Geneva shows an uncertainty in international standards.
     A further point of Lord Hodge leads into the Hong Kong Government’s thinking on article 25. The issue whether the Scottish Parliament lacks the competence to legislate in breach of article 25 of the ICCPR cannot arise because of the fundamental separation of powers in the constitution. The Executive makes treaties but they bind domestically only if entered into law by legislation.[x] Its argument in the submission to the Human Rights Committee in 2011 is simply that the constitutional law jurisprudence of Hong Kong provides that the ICCPR does not have direct effect in Hong Kong, but only effect by incorporation. In a case concerning the issue of compatibility of corporate voting, it was decided that that “so far as domestic law is concerned, article 25(b) of the Covenant assumes constitutional significance only by virtue of article 39 of the Basic Law, which itself provides for the continued application of the ICCPR to Hong Kong after 1997 as it applied to Hong Kong at the time the Basic Law was enacted.”[xi]
     None of this makes pro-Pan-democratic lawyers shy of insisting that the ICCPR article 25, without any reservation, applies in Hong Kong. The latest Hong Kong Bar Association written submission to the Human Rights Committee is as follows:
The HKBA takes the position that the 1976 reservation, interpreted in its context and purpose, means that it does not require the establishment of an elected Executive Council and Legislative Council. Given that a state reserves no more than what is contained in the text of the reservation itself, the 1976 reservation cannot possibly cover the electoral method of the Chief Executive of the HKSAR, which is an office separate from the Executive Council.
The HKBA therefore takes the position that the provisions of the ICCPR as applied to Hong Kong include article 25(b) in full in so far as the electoral method for the Chief Executive is concerned.[xii]
     As an argument about the effect of a limited reservation this is, in the view of the Scoping Report open to the objection that article 25 clearly does not require direct elections of a Chief Executive. If one says that, once the decision to have any election has been taken article 25 would require that its provisions should apply, a possible objection is that such an argument contradicts the wording of article 45 of the Basic Law. The second paragraph assumes that the Chinese Government will retain control of the process of gradual introduction of universal suffrage. 
     Of course, if there was a world state and a world constitutional court had to decide the issues of interpretation – backed up by a Security Council in the possession of effective military or economic sanctions – then it is certainly possible that such a Court would prefer the view of the HKBA to the Scoping Report and the UN Human Rights Committee to the Strasburg Human Rights Court. Whether its judgment was convincing would not matter. 
     The difficulty is that the starting point for Hong Kong remains the geo-political history which went into the drafting of the Joint Declaration and the Basic Law which followed. Hong Kong Pan-democrats have tried to change this geo-political balance with frequent trips to London and Washington, so far without noticeable success. Their high point is the already mentioned Report of the House of Commons Foreign Affairs Committee which faithfully reproduces their concerns and opinions.

A Return to Classical Legal Prudence in the Application of International Standards 
The fixed hostility in Government circles to the idea of an international standard may attach to a particular “rationalist” concept of law. It assumes a universal will of humanity, expressed for all time in an eternal code such as article 25 of the ICCPR. The words “to vote and to be elected at genuine periodic elections” and “without unreasonable restrictions” in a “universal and equal suffrage” are very much written in stone by an eternal legislator for all human beings for all time. The fact that none of the words has any definite meaning is not likely to discourage “rationalists” from striving to demonstrate that, say 150 countries in the world have given these words a precise and agreed meaning which binds all the rest. This “purist” concept of law can easily distinguish itself from a grubby “politics” understood as “powerful” interests which deflect from the impartial application of the legal standard, leading to a people having their pure will frustrated. 
     Presumably this was the expectation of the seminar organised under the auspices of the HKU Law Faculty Centre for Comparative and Public Law on  20 March 2014. Experts were called in from all over the world, i.e. Australia, Kenya, the United States, the United Kingdom, Hong Kong and mainland China, to deliberate internationally “written in stone” standards for nomination of candidates for Chief Executive. The meeting was not able to come up with an agreed exhaustive description of the standards of even 100 countries. One of the reasons, apart from the extremely restricted geographical scope of participation in this meeting, was, according to one friend who participated in it, that the academics involved could not easily come out of their own national circumscriptions to make global generalizations. As it is the concluding Report of Guiding Principles on the Compatibility of Election Mechanisms and Methods with International Standards fell back on article 25 of the ICCPR in its paragraph 5. It states: "In compliance with international human rights law, there ought to be no unreasonable restrictions on people’s right to stand for election”.[xiii]
     In their reflections on democracy, security and economic development in ASEAN countries, Jones, Khoo and Smith speculate that the Western style of global governance according to the promotion of an abstract rationalism, promoting 
a universal condition of natural rights , rather than creating the pre-conditions for universal peace has since the 19th century profoundly unsettled the traditional practice of monarchies, empires and republics. Arguably, such developments have made war over ideas more total, and more frequent, than the limited violence that prevailed in the era that preceded the tyranny of single truths.[xiv]
The task which the three authors set themselves, in the context of ASEAN countries is how to achieve democracy, security and economic/social well-being all together. Jones, Khoo and Smith offer to contrast abstract, rationalist democratic theory, i.e. the assertion and application of formally abstract norms such as article 25 of the ICCPR, with an Aristotelean approach to politics, which requires not only an awareness of the best possible regime, but also what might be the best achievable in the circumstances. Alongside, indeed instead of the lawyers’ ramrod capacity for logic, there is need for the wise ruler’s capacity for prudence and wisdom, not merely a self-discipline in virtue but also a capacity to perceive or otherwise intuit what is possible in the circumstances.[xv]
      Their method consists of case studies of Singapore, Malaysia, the Philippines, Indonesia Myanmar, Thailand and the Indo-China states of Cambodia, Laos and Vietnam. Their conclusions consist of reflections on the experiences of these countries, not prescriptions but insights into the likely consequences of stress upon certain goals and values in particular circumstances. 
      A not entirely dissimilar study is undertaken in the work edited by Albert Chen on Constitutionalism in Asia in the Early 21st Century. This work is and broadly accepts a Western rationalist concept of constitutional development which it then applies to East Asia. However, its case studies are very rich expositions of the ups and downs of constitutional experience in East Asia and it is intended to highlight some of the conclusions on studies of Taiwan and Korea (South), which are, inevitably, not included in the ASEAN study.[xvi]
      Some of the conclusions can be briefly stated, allowing for the “bias” of the authors for what they call democratic realism. This is a doctrine which asserts that political pluralism is a consequence and not a condition of security.[xvii] The authors comment that the experience of democracy in Indonesia, Thailand (before the recent Coup) and the Philippines do indicate a fairly firmly rooted attachment to formal, democratic procedures and some freedom of expression. However, they do not overcome very widespread corruption, immobile bureaucracy and the hierarchical social structures which express themselves in clientalist, populist politics, which actually provoke not only a military response, but also a frustration among politically liberal professional classes. Democracy also provides the occasion for more articulated ethnic dissension, with Muslim secessionist movements in the Philippines and in Thailand. However, democratic politics in Indonesia have helped to approach ethnic tensions constructively. Not surprisingly, the authors point to the well settled, hierarchical and professional structures of government in Singapore and Malaysia that have proved the most effective in economic terms.[xviii]
      The studies on Taiwan and South Korea add considerably to the picture, as they are well known as Asian economic “tigers”. Without commenting on the origins of this economic success in authoritarian regimes – which the authors do not in any case discuss – there are at least two caveats which the authors raise, perhaps even unintentionally in the case of Taiwan. The Taiwan authors are simply ecstatic about the development of democracy since the end of martial law in Taiwan, and especially praise the development of a radical civil society. However, at the same time they remark that the elected institutions of government, Legislature and Presidency are largely unable to function together, partially because of unclear constitutional boundaries, but more so because of identity rooted political differences, making compromise impossible. Therefore, the judiciary has had to step in in a big way to complement the failed government of elected institutions. The judiciary has to provide a framework for the resolution of political differences. This suggests that Taiwan has moved very quickly forward to reflect the pathologies of so-called advanced democracies like the United States and Australia. As political differences certainly concern economic policy, e.g. the trade agreement proposed with China, they are bound to impact upon the country’s economic development. There are also lessons here for Hong Kong, also politically deeply divided on identity politics, viz. the relationship with China.
      The very complex picture of Korean political and constitutional life painted by Kim cannot be easily summarised. However, he appears to stress that even democratically elected Presidencies do not appear to be able to reign in a very marked tendency to authoritarian rule in Korea. He is uncertain how to remedy this institutionally and appears to think that one term Presidencies actually encourage the pathology. More remarkably still, the Presidential tendency to conviction politics, for itself and its circle, combines with a dark connection between bureaucracy and business elites. Maybe partially because of globalization, public office is very much the junior partner in government- business relations. 
      Public order is not able to restrain factional large business group interests. The public itself is very often unable to distinguish legitimate from illegitimate power.

Conclusion 
The paper has not had the purpose of offering solutions to the contemporary political crisis in Hong Kong. If any, it has suggested that the crisis is very profound, being related to massive conflicts of political and/or national identity and, in our judgment, especially related to vast divergences in understandings of the role, possibilities and limits of the very idea of Law. Of course understandings of Law are themselves an aspect of issues of identity. 
      While there may be some quick fixes in the short term, e.g. a breakaway of a few Pan-democrats to let the reform package through, in the long term this quick fix would be itself a product of the abstract rationalism which is so much deplored in the paper. Instead what is recommended, in perhaps the self-indulgence of an academic style, is an evolution of Hong Kong away from a fixation on a Beijing – Hong Kong (read London-New York/Washington) conflict and towards South East Asia, a South East Asia in which, of course, China also plays a leading part. In such a development the role of international standards, understood in the classical sense suggested in the last section, would be very large.

Written by Professor Anthony Carty, Sir Y K Pao Chair of Public Law, Faculty of Law, University of Hong Kong.  The paper was delivered on 12 April 2015 at the "International Law Conference of 25th Anniversary of Hong Kong Basic Law", held at the City University of Hong Kong on 11-12 April 2015.

Notes
[i] PREM 19/1265 The Future of Hong Kong: Arrangements for Testing the Acceptability in Hong Kong of an Agreement with the Chinese, B J Cartledge to Prime Minister, c Sir Robert Armstrong 26 June 1984.
[ii] See further the unpublished PhD thesis The Modern International Law in the Practices in China during two Opium Wars ended with Unequal Treaties from 1839 to 1860, Ji Shan Qi, University of Aberdeen 2012. In particular the second war, which led to the seizure of Kowloon, was fought contrary to the legal advice of the UK Attorney General and only after a negative vote in the House of Commons led Lord Palmerston to go to the country and win an election on a “my country right or wrong” basis. 
[iii] The UK’s Relations with Hong Kong: 30 years after the Joint Declaration 10th Report of Session 2014-15. 
[iv] See http://www.icj-cij.org/docket/index.php?p1=3&p2=4&code=kos&case=141&k=21&p3=0 Accordance with international law of the unilateral declaration of independence in respect of Kosovo. China realising the potential effect of this case, submitted a written memorandum opposing the Kosovan action, its first participation in the Court’s proceedings. 
[v] In Democracy in Decline, Steps in the Wrong Direction (McGill-Queen’s University Press 2014), esp. International Law, pp.83-107 
[vi] See also Francis Fukuyama, Political Order and Political Decay, From the Industrial Revolution to the Globalization of Democracy (Profile Books 2014), chapters 27-30 on the spread of democracy as a historical process, emphasising that democracies decline as much as they rise and that increasing judicial activity is usually a mark of increasing formal democratic decline. 
[vii] Legal Issues Relating to Democratic Participation in Hong Kong, Scoping Report 17th October 2014, British Institute of International and Comparative Law, London paragraph 36.
[viii] ibid.
[ix] Moohan and another v The Lord Advocate [2014] UKSC 67, paragraph 28.
[x] Ibid, paragraph 29.
[xi] CCPR/c/CHN-HKG/3 Human Rights Committee Third Periodic Reports of States parties, Hong Kong, China 31 May 2011, paragraph 317. The Report also refers specifically to a mention by Stock VP that article 39 means the ICCPR is applied by the UK from 1976 and as intended to be applied after 1 July 1997 , by reason of the PRC Communication of 20 June 1997 to the Secretary General, includes the reservation attaching to the ICCPR at paragraph 319. 
[xii] Hong Kong’s Implementation of Certain Concluding Observations of the United Nations Human Rights Committee (April 2013), dated 31 March 2014, paragraph 3, page 4. 
[xiii] See http://www.law.hku.hk/ccpl/events/Article25ICCPR.html Art 25 Roundtable CCPL 20 March 2014 
[xiv] D M Jones, N Khoo M L R Smith, Asian Security and the Rise of China, International Relations in an Era of Volatility (Edward Elgar 2013) at p. 137 in chapter 5, Producing security: state power, democracy and Southeast Asian regionalism. 
[xv] Ibid at pp.142-3.
[xvi] Cambridge 2014, the chapters by Jr Yeh and W-C Chang on Taiwan and J Kim on South Korea at pp 141-167 and pp. 77-100.
[xvii] Asian Security and the Rise of China, at p.142.
[xviii] Ibid, chapter 5 generally.

Saturday, April 11, 2015

Amanda Whitfort: Hong Kong Not Doing Enough to Stop Illegal Ivory Trade

Local legislators are correct in their claim that the Hong Kong government is not doing enough to stop the flow of illegal ivory through our borders (“Eyes on HK to step up ivory fight”, South China Morning Post, 5 April 2015). Hong Kong’s lax attitude to ivory sales has played a significant role in bringing the African elephant population to the lowest numbers in history. China’s recent ban on the import of ivory passes the buck firmly back to Hong Kong to develop effective controls on the trade. In Hong Kong, authorities have long turned a blind eye to the local unethical and unsustainable trade in so-called “legal” ivory. Local licences permit Hong Kong traders to sell ivory from their stockpiles of “legal” ivory obtained before the CITES ban of 1989. Annual records provided by the traders themselves claim their pre-1989 stockpiles are not diminishing, despite the popularity of ivory with mainland visitors and its increasing value as a commodity. While elephant populations dwindle, it is not surprising to find that ivory stocks remain stable in local shops. Effective action needs to be taken to stop the sale of all ivory in Hong Kong (no matter when it is claimed to have been harvested) and significant gaol terms imposed by the judiciary to deter smugglers of endangered species and their derivatives. Written by Amanda Whitfort.

Backchat: Hong Kong Independence Movement (RTHK Radio 3)

"Hong Kong Independence Movement"
RTHK Backchat (Radio 3)
10 April 2015
Hosts: Hugh Chiverton and Danny Gittings (PhD candidate)
On Friday Backchat tackles the issue of Hong Kong Independence. Its been in the news recently as some propose introducing legislation to outlaw advocacy of independence for our city. The Administration has turned that down, but under Article 23 we are bound at some point to legislate on secession. What then does that mean, and when should we do it? How real is support for independence, and how exactly would that be different from a high degree of autonomy?
8.30-9:20 Hong Kong Independence Movement
Dennis Kwok, Legislator representing Legal Functional Constituency, Civic Party
Simon Young, Professor and Associate Dean (Research), Faculty of Law, University of Hong Kong
Jerome Chiu, Member, Civic Passion
Regina Ip, Executive Councilor and Legislator, New People's Party
Click here to listen to programme.

Friday, April 10, 2015

Simon Young on Right to Counsel Gap in Hong Kong (Fair Trials International)

Simon NM Young
Fair Trials International
9 April 2015
In this weeks guest post, Professor Simon N.M. Young discusses how a lack of access to lawyers for those arrested in Hong Kong is violating its own constitution, and prohibiting those detained the right to a fair trial.
There is a glaring gap in Hong Kong’s system of criminal legal aid. Public funds pay for solicitors and barristers to represent persons who have already been charged and brought before the courts. Little if any support exists for those who have yet to be charged. The Duty Lawyer Service provides a free legal advice scheme at district offices and a scheme of pre-recorded telephone messages. Neither are helpful to the suspect who has just been arrested, about to be interrogated by the police.
     Suspects at police stations are provided with a notice informing them of their “rights” to “make private telephone calls to” a lawyer and to have one “present during any interview with the police” (Form Pol. 153). But if the suspect does not know of any lawyer and asks if free legal advice is available, the police will say no. On request, he will be provided with a list of the more than 8,000 practicing solicitors, who have no duty to provide pro bono legal advice. In practice, unless a suspect or his family or friends know of a lawyer to contact, the suspect will most likely undergo the police interview without the benefit of legal advice. This must surely be a violation of Article 35 of the Basic Law (Hong Kong’s constitution) which provides that persons have the right to “choice of lawyers for timely protection of their lawful rights and interests”. Without access to legal advice at this stage there can be no timely protection....  Click here to read the full article.

Thursday, April 9, 2015

Jin Sheng (PhD 2010)'s New Book on China's Listed Companies

China's Listed Companies: Conflicts, Governance and Regulation
Jin Sheng (PhD 2010)
Wolters Kluwer
March 2015, 416 pp.
Series: Vol. 25 of the International Banking and Finance Series
Description: The number of interactions between China’s stock markets and markets in other parts of the world continues to grow prodigiously. However, as in many transitional economies, insider control and inefficient law enforcement pose serious problems for the corporate governance of Chinese listed companies. China’s legal infrastructure and enforcement is poor, allowing controlling shareholders to easily manipulate control rights and to maximize their own benefit rather than that of investors. 
    Using a law and economics approach, this book first analyses the types of pervasive misconduct of large shareholders in China’s listed companies, and then offers concrete reform proposals toward effective protection of minority shareholders in the interwoven areas of regulation, enforcement, and the judiciary. The author addresses the necessity for recognizing the fiduciary duty of controlling shareholders, for improving voting rights for minority shareholders, for enhancing the disclosure system, and for restricting insider trading and market manipulation. Among the issues and topics examined are the following: 
  • the pervasive use of ‘tunnelling’ and misappropriation; 
  • how pyramidal structures, cross-holdings, and control of management enlarge the rights of controlling shareholders and some institutional investors; 
  • the state’s continuing involvement in many control transactions, either as a market regulator or as an owner of state-owned assets; 
  • the special protection given state-owned shares and assets; 
  • asymmetric information between large shareholders and minority shareholders, and between institutional investors and individuals; and 
  • the feasibility of developing an investor protection–oriented regulatory system through a cautious integration of legal transplants and indigenous legal resources. 
     This research analyses the roles of three interest groups: controlling shareholders, institutional investors, and minority shareholders. In addition to case studies, interviews, and comparative studies, game theory models are used to test the relationship among the three groups and to show how conflict can be reduced. With its in-depth description and analysis of the current reality of China’s stock markets, this book has no peers in its insightful recommendations on how to improve minority investor protection in China. Of particular value to multinational corporate counsel, it is sure also to find a place near the desk of everyone interested in Chinese markets, whether from a legal or a business standpoint.  Click here for more information.

Tuesday, April 7, 2015

North Korea - One Year After the UN Commission of Inquiry's Report (new volume APJHRL)

In the latest volume of the Asia-Pacific Journal on Human Rights and the Law, Professors Dino Kritsiotis, Rhoda Howard-Hassmann and Danielle Chubb reflect on the legal and broader implications of the UN Commission of Inquiry's report on North Korea released in March 2014.  The Chair of the Commission, the Honourable Michael Kirby writes an introduction to the special section.  Other articles in the volume address corporal punishment in Tonga, the police complaints system in Hong Kong, the challenge of internally displaced persons in South Asia, targeted killings in the Philippines and justifying government surveillance.  The Journal is edited by Simon NM Young and Kelley Loper, Centre for Comparative and Public Law, The University of Hong Kong.  The table of contents of volume 15 is as follows:


Monday, April 6, 2015

Basic Law 25 Years: A Celebration of Faded Memories

Did the drafters of Hong Kong's Basic Law ever consider civic nomination for the selection of the Chief Executive?  The current Chief Executive, C.Y. Leung, said they did not, in his recent speech to mark the 25th anniversary of the promulgation of the Basic Law. In reply, former member of the Basic Law Drafting Committee, Martin Lee SC, said they did (reported in SCMP).  Former secretary for justice, Ms Elsie Leung, could not recall without reference to the drafting records.  In reply to Mr Lee's comment, the South China Morning Post reported on 6 April 2015 that the Chief Executive had "backtracked".  So what exactly is the position?
     A quick search on the University of Hong Kong's Basic Law Drafting History Online website would have uncovered documents that suggest that the Chief Executive is correct insofar as universal suffrage models were proposed; but Martin Lee is correct in that civic nomination was proposed for a model of suffrage based on a body of 600 individuals.  A referendum of the people on universal suffrage was also discussed at one time.  
     In a Collection of Draft Provisions of the Various Chapters Prepared by the Subgroups of the Drafting Committee, compiled by the Secretariat of the Drafting Committee for the Basic Law in December 1987, one finds reference to four proposals for selecting the Chief Executive (pp 17-18):

The first proposal ("elected by a grand electoral college") does not refer to a method of nomination but it is unlikely to contemplate civic nomination.  The second proposal refers to nomination by one-tenth of members of the Legislative Council (not a direct form of civic nomination, albeit indirect).  The third proposal ("elected by functional constituencies") also does not refer to a method of nomination.  The fourth proposal refers to nomination by an advisory board.  It is interesting to note that only one member of the subgroup favoured this fourth proposal at the time.
     In the first version of the draft Basic Law presented for public consultation in April 1988, one finds reference to five alternatives proposed in the consultation document (pp 13-15): 

The first alternative refers to a Nominating Committee nominating candidates. The second alternative refers to nomination by "no less than one-tenth of the [directly-elected] members of the Legislative Council". The third alternative ("elected by a functional electoral college") makes no reference to a method of nomination but in the section of the consultation document referring to Annex I, there is reference to civic nomination of Chief Executive candidates for election by a 600 strong member electoral college:


The fourth alternative refers to nomination by an "advisory group". The fifth alternative refers to a Nominating Committee nominating three candidates through consultation or by ballot after consultation.
     By the time of the consultation on the second draft Basic Law in February 1989 (months before the events in June 1989), no further proposals were presented and the text of the draft Article 45 reflected the final version; note however the reference to "general election" instead of "universal suffrage" in paragraph two.
Another interesting piece of history (see below) seen in the February 1989 draft Basic Law was the reference in the draft Annex I to conducting a "referendum in the Region" to decide when the Chief Executive "shall be selected by general election after nominations are made by a broadly representative nominating committee in accordance with democratic procedures".  This clause without the reference to referendum was later moved to Article 45 itself.  It is also interesting to note that had the referendum failed to support universal suffrage, the next referendum was not to be conducted until 10 years later.
     From the analysis of the above documents, it appears that civic nomination was not contemplated in any proposal for universal suffrage of the Chief Executive; however it was proposed in a model of suffrage based on a 600 member electoral college.  The proposals varied widely and do not provide much assistance in the current political reform debate.  However one finds in these drafting materials an interesting statement of legislative intent that is of particular relevance to the current debate.  It is the statement at paragraph 24 of the April 1988 consultation document that identified what was common to the five alternatives then proposed:
Thus one takes from this that any proposal for political reform must "ensure the representation and authority of the Chief Executive" and "give due attention to coordination and checks and balances between the executive authorities and the Legislative Council."  Written by Simon NM Young.  Please note that the original post published earlier today has been amended and reposted once.  Apologies for any misunderstanding that may have been caused.

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