Monday, November 21, 2016

New Book: Copyright, the Internet and the Balance of Rights (Yahong Li)

Edited by Li Yahong
Hong Kong University Press
November 2016, 176 pp., Language: Chinese
Description: Creativity is the engine of social and economic development. In a legal system, the copyright law system is closely related to creativity, especially the creativity in the cultural and creative industries. But only a balanced copyright system that takes account of the interests of different parties can promote creativity. Therefore, we must constantly examine whether the existing copyright system can reflect the interests and practical needs of different parties, especially in the context of the Internet.
     Copyright, Network and Balance of Rights explores the issues of fair use of copyright in the Internet environment, the rights and status of users, the abuse and balance of rights, piracy and the responsibility of network service providers. It discusses the legislation and judicial reform for the above-mentioned issues in Mainland China, Hong Kong and Taiwan, and explores how to achieve the best balance among parties and maximise social creativity under the internet environment. This book has eight chapters in total, divided in two parts. The first part discusses the balance, abuse and fair use of copyright; the second part focuses on the identification of internet infringement and liability.
The Author: Li Yahong, JSD, Stanford University; Associate Professor, Faculty of Law, The University of Hong Kong; Program Director, Intellectual Property and Information Technology; has long been engaged in teaching and researching on patent and technology innovation, copyright and creative industries.  Contributors include Dr Tao Zhongyi (SJD 2015) on fair use in the digital environment in China, Dr Hua Jie (PhD 2013) on constructive knowledge on ISP liability, and Dr Hu Ling (PhD 2011) on the commercial origin of China's digital copyright.
"This book examines the copyright, network and rights balance matters from a cross-strait and comparative perspective, it helps to promote the development of the copyright law system in the three places, which is worth reading."
   - Professor Liu Chuntian, President of Intellectual Property Law Association, Professor of Renmin University of China
"This book provides an in-depth discussion of key issues in the field of Internet copyright (copyright) in the three places and provides insightful analysis for intellectual property scholars, students and practitioners.
   - Prof. Kung-Chung Liu, External Director, Applied Research Center for Intellectual Assets and the Law in Asia, School of Law, Singapore Management University; Research Fellow, Institutum Jurisprudenliae of Academia Sinica 
"This book brings together senior and young intellectual property scholars from China, Hong Kong and Taiwan, exploring the important issues related to copyright reform, cybercrime and fair use. Audiences who are interested in understanding the copyright law system in Mainland China, Hong Kong and Taiwan should not miss it.
   - Peter K. Yu, Co-Director, Center for Law and Intellectual Property, School of Law, Texas A & M University, USA

Sunday, November 20, 2016

Keith Hotten Discusses "The Battlegrounds of Divorce" (HKU Bulletin)

"The Battlegrounds of Divorce"
HKU Bulletin
October 2016, pp 7-8
'Blameless divorce' has been the guiding principle in UK law and by extension Hong Kong since the 1970s: let couples divorce, do not ask why, and focus on the legal division of assets and custody of children. It is meant to take some of the pain out of a marriage breakup, but as Dr Keith Hotten of the Department of Professional Legal Education explains, “the devil is in the details”.
     Dr Hotten wrote the leading textbook on Hong Kong marital law and, as a barrister of 25 years in Hong Kong and the UK, has seen divorces mushroom here, with the number of petitions granted more than doubling since the mid-1990s to about 23,000 a year. He has also been at the sharp end when it all goes wrong.
     “Judges would like agreement and the vast majority of cases are agreed. But the problem is that matrimonial law, unlike nearly all other types of civil proceedings, is highly emotional. You have cases where husbands and wives hate each other and won’t give an inch. They fight over the dog, over a worthless piece of pottery, they will fight over everything. Some of them also have lots of money and use the courts to litigate. And there’s the rub,” he said.
     When there is an unwillingness to back down and the case goes to trial, it can take 18 months to two years to get a few days in court to hear the case – such is the backlog in the courts. By contrast, couples willing to go through mediation can have their Decree Absolute granted by the court within a few months, although even that overburdens the judicial system because of the sheer number of divorce petitions each year.
     Those who insist on getting their day in court must be willing to pay. “People who don’t have a lot of money can’t afford to litigate,” Dr Hotten said. “Middle class couples may have more to argue about and one of them might get legal aid, but it will still cost a lot of money. You’ve got family lawyers charging HK$6,000 an hour, and you can see people fighting over HK$20 million, which is not much given the price of homes in Hong Kong. You could spend HK$10 million on lawyers if you spend two years litigating to trial. Multimillionaires with money to burn don’t care about the costs, but they are clogging up the courts.”... Click here to read the full article.

Saturday, November 19, 2016

New Issue: SSRN Legal Studies Research Paper Series (HKU)

Vol. 6, No. 5: 4 November 2016
Table of Contents

1. FinTech, RegTech and the Reconceptualization of Financial Regulation
Douglas W. Arner, University of Hong Kong - Faculty of Law
Janos Nathan Barberis, The University of Hong Kong - Faculty of Law
Ross P. Buckley, University of New South Wales (UNSW) - Faculty of Law

2. Aggregate Concentration: An Empirical Study of Competition Law Solutions
Michal S. Gal, University of Haifa - Faculty of Law
Thomas K. Cheng, The University of Hong Kong - Faculty of Law

3. The Standard of Proof in Civil Competition Law Proceedings
Kelvin H. Kwok, The University of Hong Kong - Faculty of Law

Friday, November 18, 2016

CL Lim on Worldwide Litigation Over Foreign Sovereign Assets (Dispute Resln Int'l)

"Worldwide Litigation Over Foreign Sovereign Assets"
CL Lim
Dispute Resolution International
Vol. 10, No. 2, October 2016
Abstract: Recent litigation about Argentina's sovereign debt workout and the enforcement of arbitral awards against foreign sovereigns has cast a spotlight on foreign sovereign immunity rules. It tells of diverse national rules of such complexity that they demand concise explanation. This brief article attempts to provide such explanation, following a panel discussion at the 2015 IBA Annual Meeting in Vienna where panellists discussed the prospects of boilerplate, catch-all contractual waiver clauses and global rule convergence. What emerged was a sense that we need to find a way out of the thicket of rules, and the unpredictability, of foreign sovereign immunity litigation. This article expands on remarks originally made in Vienna, and contends that neither boilerplate contractual text nor global convergence are likely to offer wholly satisfactory solutions, and illustrates this with examples and explains some of the hidden strengths of our current practices.

Shahla Ali on the Legal Framework for Med-Arb Developments in China (Dispute Resln Int'l)

Dispute Resolution International
Vol. 10, No. 2, October 2016
Abstract: The combination of mediation with arbitration during the course of arbitral proceedings is commonly known as 'Med-Arb'. This article outlines the legal framework of Med-Arb procedures in China including recent cases, institutional rules, advantages and existing pitfalls. It then reflects on recent developments and areas of learning from other jurisdictions.

Thursday, November 17, 2016

New Book: Masculinity and the Trials of Modern Fiction (Marco Wan)

Masculinity and the Trials of Modern Fiction
Marco Wan
Routledge
November 2016, 177 pp.
Description: How do lawyers, judges and jurors read novels? And what is at stake when literature and law confront each other in the courtroom? Nineteenth-century England and France are remembered for their active legal prosecution of literature, and this book examines the ways in which five novels were interpreted in the courtroom: Gustave Flaubert’s Madame Bovary, Paul Bonnetain’s Charlot s’amuse, Henry Vizetelly’s English translations of Émile Zola’s La Terre, Oscar Wilde’s The Picture of Dorian Gray, and Radclyffe Hall’s The Well of Loneliness. It argues that each of these novels attracted legal censure because they presented figures of sexual dissidence – the androgyne, the onanist or masturbator, the patricide, the homosexual, and the lesbian – that called into question an increasingly fragile normative, middle-class masculinity. Offering close readings of the novels themselves, and of legal material from the proceedings, such as the trial transcripts and judicial opinions, the book addresses both the doctrinal dimensions of Victorian obscenity and censorship, as well as the reading practices at work in the courtroom. It situates the cases in their historical context, and highlights how each trial constitutes a scene of reading – an encounter between literature and the law – through which different forms of masculinity were shaped, bolstered, or challenged.
"Masculinity and the Trials of Modern Fiction offers a new and striking contribution to the subject of censorship and the trials of literary texts. The subject has often been treated without Marco Wan's great subtlety as a reader. He has a remarkable capacity to read the language deployed by the law with the keen critical attention of the literary critic, and then to see how legal issues inflect the modalities of literature. His attention to the discourses of gender implicated in these famous trials gives his study a striking originality. This is one of the best studies of law and literature in intertextual relation that I have ever seen."
Peter Brooks, Sterling Professor Emeritus of Comparative Literature, Yale University, and Andrew W. Mellon Foundation Scholar, Princeton University   
"It is the task of literature to call people back to the radical diversity of forms of life, and modes of desire. Ranging over narratives of the sodomitical, patricidal, onanistic, androgyne, gay and lesbian, Marco Wan's incisive study brilliantly evidences the capacity of the literary to challenge, unsettle and rewrite the strictures of the juridical."
Peter Goodrich, Professor and Director of the Program in Law and Humanities, Benjamin N. Cardozo School of Law  
"Neither before nor since have I written to congratulate an author unknown to me. But I did so in response to an article by Marco Wan on the Oscar Wilde trial, now addressed more fully in Chapter Four of this book. 'Fascinating' was what I said. Indeed there is no better word to describe Marco's analysis here of five famous examples of where the establishment desperately resorts to law in order to confront home truths about human sexuality which it regards as socially subversive.
         Nicholas Wilson, Justice of the U.K. Supreme Court

Assessing the Tongzhi Label (J of Homosexuality)

"Assessing the Tongzhi Label: Self-Identification and Public Opinion"
H Lau, G Yeung, RL Stotzer, CQ Lau & Kelley Loper
Journal of Homosexuality
May 2016
Abstract: Tongzhi is one of several Chinese terms that refer to individuals who are attracted to the same sex. Using data from two different surveys in Hong Kong, this research note examines how the term tongzhi coexists with other terms. We investigate the prevalence of self-identification as tongzhi, and we explore the extent to which using the term tongzhi influences public attitudes toward gay people and gay rights. Activists began popularizing the term tongzhi in the late 1980s, but less than one third of the participants in our 2008 survey of sexual orientation minorities (n = 728) described themselves as tongzhi. Using a split-ballot experiment in a 2013 public opinion poll (n = 831), we found that attitudes toward gay people and gay rights were not significantly impacted by whether questions were phrased in terms of tongzhi or the main alternative term tongxinglianzhe. We discuss how our findings can enrich understandings of earlier research and illuminate avenues for future study.  Click here to read the full article.

Wednesday, November 16, 2016

Arner, Barberis & Buckley on a 150 Years of Fintech (JASSA)

"150 years of Fintech: An evolutionary analysis"
Douglas W Arner, Janos Barberis (PhD Candidate) & Ross P Buckley
JASSA
Issue 3 (2016)
Abstract: Now in its third major era, the fintech sector is attracting growing interest from regulators as it evolves, both in developed markets and developing countries. The regulatory challenge lies in resolving the tension between a forward-looking framework that promotes innovation, and a sufficiently rigorous framework that maintains market confidence. We argue that more experimentation and innovation in regulatory approaches is needed, and that it is too early yet to seek international regulatory harmonisation in this space. An earlier version of this paper was presented at the 21st Melbourne Money and Finance Conference.

Tuesday, November 15, 2016

Governance Structure Reform for Listing Regulation in Hong Kong (AIIFL Working Paper)

AIIFL Working Paper No. 19
November 2016
Abstract: The June 2016 joint consultation on listing regulation arises out of a renewed concern to ensure the Hong Kong market remains fit for purpose in meeting current and emergent challenges and demands. This paper undertakes an analysis of the consultation applying a law and principles based approach. This approach requires the listing regime to be suitable not only in view of market conditions but also in view of internationally accepted practices and standards concerning regulatory oversight. While it is recognized that regulatory evolution requires progressive innovation, the two new SEHK sub-committees envisaged by the joint consultation give rise to several areas of concern. The reasons for implementing the changes proposed are not well explained in the consultation and no clear case is presented as to why the sub-committee structure would provide improvements. Putting the SFC into a frontline decision-making role is problematic under the current statutory framework, and is not necessarily a forward moving step toward a system of statutory listing regulation. It implements changes that bypass legislative intent and renders certain statutory laws meaningless, it may subject the SFC to corporate laws that would impact on its ability to act as an independent regulator, and it would diminish regulatory accountability and clarity. The risk that the changes could be regarded as legislation by regulation would weaken, not strengthen, the SFC’s regulatory mandate over public listings. These problems run counter to the intent of the Proposal to improve listing regulation and carry the risk that Hong Kong’s governance of listings, particularly the role of the statutory regulator in it, would be at odds with international best practices. The conclusion of this paper is that progressing with the sub-committee proposal would not be a positive development unless and until the issues identified in this paper are properly addressed and resolved. It is suggested that a more holistic view of market development needs to be adopted that extends beyond the decision making mechanisms of the dual filing regime and identifies more precisely the specific issues that are problematic. Doing so would permit more targeted and sustainable oversight mechanisms to be developed.  Click here to download the full paper.

Alexa Lam Made Honorary Fellow of HK Securities and Investment Institute (Acceptance Speech)

Professor Alexa Lam, JP speaking on the occasion of her induction as an Honorary Fellow (20 October 2016)
John (Mr John Maguire, Chairman of HKSI), KC (Professor KC Chan, Secretary for Financial Services and the Treasury), Distinguished Guests, Ladies and Gentlemen: 
     I am honoured to be here tonight at your annual dinner in the cultural palace of the Asia Society, to be among old friends and familiar faces. 
     When I retired from the Securities and Futures Commission in February last year, my status suddenly changed. As soon as people heard that I had retired, they treated me differently, with the warm deference that our community accords to old people. They got up and gave me their seats on the MTR, they would insist on carrying my bags for me, and cautioned that I should hold onto handrails when I walked down the stairs! 
     When the Hong Kong Securities and Investments Institute called and asked if I would accept their award of honorary fellowship, my first thought was: “Oh no, even the HKSI has decided to put me into their Hall of Age!” 
     Thanks to the Internet, I quickly realized that among the Institute’s Honorary Fellows are those who have made real and significant contributions to Hong Kong’s financial sector. I am very much humbled by the privilege of joining them. 
     The Institute’s mission is to set and promote professional standards of excellence in Hong Kong’s financial services industry through exams and professional qualifications, training and development programs. In my view, the Institute has done just that, and more. 
     Throughout my career at the SFC, the Institute was a crucial partner. They gave me a neutral platform to build industry support for securities market law reform after the Asian Financial Crisis. The Securities and Futures Ordinance ushered in a new licensing regime. The Institute spared no effort in creating a quality licensing exam. We introduced continuous professional training requirements to improve standards. The Institute was the first one to come through with comprehensive training courses to help the industry meet global standards. Through the years, as we created new types of regulated activities – type 10 for credit rating services, and 11 and 12 for OTC derivatives trading and clearing, the Institute produced new licensing exams for these new types of licenses. And it was the Institute that I turned to when we wanted a platform to launch new market initiatives. It was in the Institute’s conference room where I shared with the market exciting breakthroughs such as the RQFII and mutual recognition of funds. 
     There were of course difficult moments – I recall the occasion when I remarked that exam questions could not have been so difficult to set. After having been with the Law Faculty of The University of Hong Kong in the last year, I can now see that setting good exam questions, and marking them, is not easy!... Click here to download the full speech.

Monday, November 14, 2016

HKU Law Scholars Comment on the NPCSC Interpretation on Oath-Taking

"The People of Hong Kong vs. The People's Republic of China"
Suzanne Sataline
Foreign Policy
11 November 2016
Hong Kong’s colonial past is still alive in the city’s courtrooms. There, judges are called “my lord” or “my lady,” and barristers stride in black robes and heavy wigs that ripple with thick skeins of horsehair. The scenes connote sobriety, stability, and, for many Hong Kongers, equality before the law — even though they unfold within the People’s Republic of China, where legal proceedings are cloaked in mystery.
     Hong Kong has the only legal system in the world with an independent judiciary that operates within a socialist dictatorship, according to Cora Chan, an associate law professor at the University of Hong Kong. It’s been a struggle to balance the odd marriage between Leninist doctrine and Western common law, especially at those moments when the Communist government tips the scales and privileges party preservation over transparency and fairness...
     Most troubling is that the decision threatens the city’s independence and punctures the 50-year firewall, created in 1997, that protects Hong Kong’s rights and powers from the authoritarian system to the north in a framework called “one country, two systems.”
     “This is the most brutal form of intervention with a judicial interpretation,” says Johannes Chan, a law professor at the University of Hong Kong and former faculty dean. “It’s interfering with the judicial process. It’s far worse than any time before … The NPC has no power to make law for Hong Kong, as such. The blow, apart from the fatal blow to the judicial system, is how could anyone have confidence in one country, two systems?”
     Nineteen years after Britain ceded Hong Kong to Chinese control, many residents are furious with what they consider Beijing’s encroachments and demands for allegiance. Thousands of people attended a rally in August to support five candidates who were blocked from running for Legislative Council, or Legco, after they voiced support for independence or a referendum on the city’s future. Many protested last year after five employees of a publishing house disappeared, believed to have been kidnapped and detained on the mainland. A Chinese legal decision in 2014 promised free elections in Hong Kong, but only for candidates vetted by Beijing. The resulting fury fanned a vast street occupation that lasted nearly three months.
     The Basic Law allows China to step in and issue interpretations of law, but legal scholars who have studied the process to draft the constitution with the PRC say that the intent was not to invite blatant interference in Hong Kong local governance. Yet, the NPCSC has tried to break the spirit of the agreement repeatedly since reunification, at least four times prior to this week. Because Hong Kong’s constitution permits China’s legislature to offer its views, Hong Kong can’t ignore Beijing’s legal decrees, Johannes Chan says, but must find ways to work with or around them...
     A final option is what Cora Chan calls the “nuclear” choice. In theory, the court could reject Beijing’s paper as a nonbonding opinion that exceeds the framework of Hong Kong’s constitution.
     That would risk the wrath of the Chinese Communist Party. “There’s always this possibility that whatever the courts do, it might antagonize China and China might then issue another interpretation to overrule the court’s understanding,” she says. “One might argue, if you antagonize Beijing, they might take away the entire common law legal system in Hong Kong. That’s a possibility.”... Click here to read the full article.
"'The whole world ought to be concerned' Hong Kong lawyers react to Beijing's 'clarification' on oaths"
Ilaria Maria Sala
Quartz
8 November 2016
After Beijing controversially stepped in to block two pro-independence lawmakers-elect from taking office in Hong Kong by offering its “interpretation” of the city’s own laws, Hong Kong lawyers are left wondering how to clean up the mess.
      Yau Wai-ching and Baggio Leung, who represent the Youngspiration political party, were elected in legislative elections in September. Until now, the two haven’t been able to swear in to officially assume their posts as lawmakers. The first attempt was voided by the Legislative Council president after they displayed a “Hong Kong is not China” banner and mispronounced the word China to make it sound close to an old war-time insult instead of reading out the official oath...
     “They (Beijing) wanted to exclude those two young persons from the (Legislative) Council regardless of the cost,” said Fu Hualing, a law professor at the University of Hong Kong. “They took it as a personal insult. They did not care about the legal and political cost, because they just want to stop anybody who is pro-independence from joining the Legislative Council.”
     Seizing on Beijing’s intense hatred of separatist talk, Rita Fan, Hong Kong’s only representative to the Standing Committee of the National People’s Congress, said she supported Beijing’s intervention because Yau and Leung’s separatist actions were “adding salt to the wounds of the Chinese people.”
     Beijing’s intervention effectively disenfranchises tens of thousands of people who voted for opposition politicians across a spectrum ranging from pro-independence to mild democrat. Fu said that Beijing’s intervention amounts to basically future elections in Hong Kong being of “no use.”... Click here to read the full article.
"'Terrible precedent': Lawyers say Beijing has effectively amended, not interpreted, the Basic Law"
Ellie Ng
8 November 2016
Hong Kong’s legal professionals have criticised Beijing for bypassing the amendment procedure set out in the territory’s mini-constitution and making a “direct application” of Chinese national laws to Hong Kong.
     On Monday, China’s legislature, the Standing Committee of the National People’s Congress (NPCSC), voted on and passed The NPCSC’s interpretation of the Basic Law Article 104 of the Hong Kong Special Administrative Region with unanimous support. It was the fifth Basic Law interpretation since the 1997 handover....
     HKU law professor Benny Tai Yiu-ting said the NPCSC is “actually legislating directly for Hong Kong by adding detailed provisions” to local laws on oath-taking in the name of an interpretation.
     “[The interpretation] is a direct application of national laws to Hong Kong, an amendment to the Basic Law and an adjudication of an issue in a trial,” Tai said, adding that the NPCSC has gone beyond its power stipulated in the Basic Law and the Chinese Constitution.
     Under Article 18 of the Basic Law, national laws are not applicable to Hong Kong, except for laws concerning defence, foreign affairs and matters outside the autonomy of Hong Kong. In addition, these laws can only be applied locally by amending Annex III of the Basic Law and then by way of promulgation or legislation.... Click here to read the full article.

Albert Chen's TVB Interview on the Standing Committee's Oath-Taking Interpretation of the Basic Law (Cantonese)

In an in-depth television interview with TVB Jade, Cheng Chan Lan Yue Professor in Constitutional Law, Albert Chen, discussed the implications of the National People's Congress Standing Committee's fifth interpretation of the Basic Law for the ongoing litigation over the oath-taking by Youngspiration legislators.  In a series of news clips, Professor Chen discusses the reasons for the interpretation, the likely impact on the Hong Kong legal system, and the wider implications for the implementation of Article 23 of the Basic Law, specifically the offence of secession.  The television interviews can be viewed here (Cantonese).  Professor Chen's interview with the South China Morning Post on the same topic can be found here.

Thursday, November 3, 2016

The Legal Limits on Beijing's Powers to Interpret Hong Kong's Basic Law

Legal Limits on Beijing’s Powers of Interpretation?
There are speculations that Beijing’s National People’s Congress Standing Committee (NPCSC) will issue an interpretation of the Basic Law to bar two Legco members-elect from taking office. This piece expounds the nature and impact of the NPCSC’s power of interpretation and argues that serious thought should be devoted to developing legal controls on Beijing’s powers of interpretation. 
     Article 158(1) of Hong Kong’s Basic Law provides that the power of interpreting that Law is vested with the NPCSC. Article 158(2) and (3) go on to say that the NPCSC authorises Hong Kong courts to interpret the Basic Law on their own in the course of adjudication, subject to a duty on the Court of Final Appeal (CFA) to seek an interpretation from the NPCSC, when provisions concerning the Chinese Government’s responsibilities would affect the judgment of the case. On the face of it, Article 158 only grants the NPCSC the power to issue an interpretation upon reference by the CFA and in relation to provisions concerning the Chinese Government’s responsibilities. In practice, however, Article 158(1) has been read to confer on the NPCSC a plenary and freestanding power of interpretation: it could issue an interpretation any time, with or without reference from Hong Kong institutions, and on any provision of the Basic Law. In the case of Lau Kong Yung v Director of Immigration [1999] HKCFA 5, the CFA acknowledged the free-standing and plenary nature of the NPCSC’s power of interpreting the Basic Law. It must be noted that the drafting of Article 158 of the Basic Law was inspired by the European Union’s preliminary reference procedure, which mandates member state courts to seek reference from the European Court of Justice when they have to interpret a point of EU law. A construction of the EU provision that corresponds to Article 158(1) to grant the European Court of Justice a plenary, free-standing power of issuing interpretations of EU law had been proposed by an EU jurist, but rejected by the European Court of Justice (See Cora Chan, “Implementing China and Hong Kong’s Preliminary Reference System: Transposability of Article 267 TFEU Principles” [2014] Public Law 642-661). Back in 1999, the CFA’s acceptance of a reading of Article 158(1) to confer a free-standing, plenary power of interpretation on the NPCSC was heavily criticised as having ceded too much autonomy to Beijing.
     Seventeen years on, the implications of such acceptance on Hong Kong’s autonomy have become clear. First, the power of final adjudication in Hong Kong is more restricted than that in most other common law jurisdictions in that it does not include the power of final interpretation of the constitution. Since an interpretation of the Basic Law may effectively dispose of the case, where it does, the power of final adjudication is vested with Beijing rather than the CFA – it will be open to the Hong Kong Government to extinguish the precedential effect of a court ruling by asking the NPCSC to issue a reinterpretation. (A caveat is that according to Article 158(3), an NPCSC interpretation does not affect “judgments previously rendered”. So, for instance, the first NPCSC interpretation, issued to overrule the CFA’s judgment in Ng Ka Ling v Director of Immigration [1999] HKCFA 72, did not affect the applicants to the case itself. In other words, unless and until the NPCSC issues an interpretation, Hong Kong courts have full adjudicative power. For how widely the phrase “judgments previously rendered” has been construed, see Ng Siu Tung v Director of Immigration [2002] HKCFA 6). 
     More importantly, that the NPCSC possesses plenary powers of interpreting the Basic Law downgrades all guarantees in that Law from LEGAL guarantees to mere promises the delivery of which is at the grace of the Chinese Communist Party: they could be taken away by the NPCSC in the name of “interpretation”; the Basic Law may not mean what it says. The Basic Law has become a self-referential game. The NPCSC does not have a principled approach to interpreting the law. In line with Leninist legal tradition, the law is viewed by the Chinese Government as a mere tool to facilitate Party agenda. Interpretations are issued to suit the political exigencies of the day. The NPCSC has used interpretations to add things to the law. To them, the line between an interpretation and amendment of the law is thin. This is problematic from a common law point of view, according to which the law should serve to guide conduct. If interpretations of law can add new things to the law, the law would be a moving goalpost and would fail to guide. There would be no meaningful rule of law. Subject to my arguments in the final paragraph herein, that the NPCSC is the ultimate interpreter of the highest law in Hong Kong means that insofar as the domestic constitutional order is concerned, there are no legal limits on what Beijing can do to Hong Kong. This does not mean that as a matter of international law, Beijing can do whatever it likes to Hong Kong (it is bound by the Sino-British Joint Declaration to respect Hong Kong’s autonomy until 2047 as well as by human rights treaties it has signed up to). This also does not mean that there are no political constraints on Beijing’s exercise of power (certainly it would not want to trigger another Occupy Movement). My point is simply that as things stand, (subject to what will be said in the final paragraph) at the plane of domestic constitutional law, Beijing’s powers over Hong Kong are not subject to any legal supervision. Hong Kong can enjoy separate systems, the rule of law, human rights protection, only to the extent that the Chinese Government exercises restraint not to tarnish them. 
     In my view, the division of power under Article 158 seeks to protect, on the one hand, judicial autonomy and the integrity of the common law system in Hong Kong and, on the other, China’s ability to control its sovereign prerogatives. (See Chan, cited above, for more detailed discussion of this point.) The NPCSC would be considered as having exercised restraint in issuing an interpretation of the Basic Law if its issuance respects this ethos by satisfying three criteria: 1) it is issued in relation to Basic Law provisions that concern the Chinese Government’s responsibilities or the relationship between the Chinese Government and Hong Kong; 2) it is issued upon reference by the CFA or, in the absence of judicial reference, on a highly important and pressing matter – without an interpretation on which China’s sovereign prerogatives – namely, foreign affairs, defence, national unity and territorial integrity – would be endangered; and 3) the interpretation is an interpretation rather than an amendment of the law. Of the four interpretations issued by the NPCSC so far, only the fourth (issued upon reference by the CFA in Democratic Republic of the Congo v FG Hemisphere [2011] HKCFA 43) meets all three criteria. The first interpretation, issued in relation to the right of abode in Hong Kong and upon request by the Chief Executive after the CFA handed down the judgment of Ng Ka Ling, fails the first two criteria and arguably the third as well. The second interpretation, issued by the NPCSC on its own volition, adding two steps to the procedure for democratic reform, fulfils the first but fails the other two. The third interpretation, issued upon the request of the Chief Executive on the term of a new Chief Executive elected to replace an outgoing Chief Executive whose term ended prematurely, arguably fulfils the first and third, but fails the second. If the NPCSC were to issue an interpretation to stop Baggio Leung and Yau Wai-Ching from taking office, such an interpretation would likely fail all three criteria. First, the Basic Law provisions which the NPCSC could potentially peg an interpretation on, namely, Article 104 (which simply provides that legislators, judges and key figures in the government must, in accordance with law, swear to uphold the Basic Law and swear allegiance to the HKSAR) and Article 26 (on permanent residents having the right to vote and stand for election in accordance with law) concern matters that fall within Hong Kong’s autonomy. Second, the interpretation would presumably be issued in the absence of judicial reference, and handed down in circumstances in which China’s sovereign prerogatives are not endangered: although Leung and Yau’s oath-taking behaviour might be offensive, still, their behaviour, or allowing them to become legislators, per se, do not endanger national unity or territorial integrity. Third, it is difficult to imagine how simple and general provisions like Articles 104 and 26 could be construed as imposing concrete conditions on what constitutes proper oath-taking. It would be hard for the NPCSC to achieve its purpose without adding new content to the provisions.
     The anxiety surrounding the prospect of the NPCSC using its nuclear powers of interpretation to “settle” the pro-independence saga reveals the fragile foundation of Hong Kong’s constitutional order: the highest decision-maker is not subject to legal controls. This is not such a big issue if political sources of control are effective. But the main source of political control available in democracies, i.e. elections (cf. parliamentary supremacy in the United Kingdom), is not available vis-à-vis Chinese organs. While social pressure would remain a primary form of control, for autonomy in Hong Kong to be truly sustainable, it is important to explore the development of legal controls over the NPCSC’s powers of interpretation. Soft legal controls include: courts developing common law rights (the final interpretation of which are vested with courts rather than the NPCSC), rigorously applying common law methods of interpretation (e.g. resolving any doubt over statutory interpretation in favour of fundamental rights), and limiting the effect of an NPCSC interpretation (see e.g. Director of Immigration v Master Chong Fung Yuen [2001] HKCFA 48). These are soft controls because the result that they yield could be overturned by legislation or by an NPCSC interpretation. The CFA has attempted to develop hard legal controls as well. In Ng Ka Ling, the CFA boldly pronounced that it can strike down acts by the National People’s Congress (NPC) or its Standing Committee that violate the Basic Law. It did not retreat from this position in its subsequent “clarification”, issued upon request by the Hong Kong Government. The question of whether Hong Kong courts have the jurisdiction to challenge an NPC or NPCSC act has not been discussed at length again in courts since then. But in my view – and I am aware that this is controversial – the possibility of courts claiming that jurisdiction and actually exercising it should not be precluded. Going forward, a possible hard form of legal control on the NPCSC’s power could be for Hong Kong courts to reassert that jurisdiction, say, by not enforcing an NPCSC interpretation that clearly, unarguably, constitutes an amendment of the Basic Law. Article 159 of the Basic Law stipulates an onerous procedure for amending the Basic Law. The NPCSC should not be allowed to bypass that procedure through the backdoor of interpretation. Yes, the CFA in Lau Kong Yung did hold that Hong Kong courts are bound by an interpretation issued by the NPCSC, but surely, before giving effect to an interpretation issued by the NPCSC, the court first has to decide whether the NPCSC’s text in truth amounts to an “interpretation” of the Basic Law. There is space for future courts to reassert the jurisdiction to defend Hong Kong’s constitution against Chinese acts. 
     One might disagree with the form of legal control that is proposed here, but my point really is that for autonomy in Hong Kong to be secure, we cannot just rely on political controls on the Chinese Government – not when it remains a dictatorship. Legal limits have to be developed. This is an issue that has to be explored if an opportunity for constitution rebuilding arises in the run-up to 2047 or otherwise. Before that opportunity comes, perhaps courts in Hong Kong are in a good position to develop those limits. They control what the law is in Hong Kong (think HLA Hart’s rule of recognition; Hart, The Concept of Law (1961)) and are, compared to the legislature and executive, less susceptible to Chinese interference (see Basic Law Article 89).
      By Cora Chan.  I thank Johannes Chan, PY Lo, Eva Pils, Benny Tai, Stephen Thomson and Po Jen Yap for comments or discussions on a number of points in this piece. All errors are my own.

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