Alex Schwartz on International Judges on Constitutional Courts: Cautionary Evidence from Post-Conflict Bosnia (Law & Social Inquiry)

"International Judges on Constitutional Courts: Cautionary Evidence from Post-Conflict Bosnia"
Alex Schwartz
Law & Social Inquiry
November 2017

Abstract: Hybrid constitutional courts are associated with deeply divided and post-conflict contexts where the impartiality of the domestic judiciary is suspect. Such courts enlist international (i.e., foreign) judges to create an ostensibly neutral counterbalance to the presumed political biases of local judges. This mixed-methods case study of the Constitutional Court of Bosnia-Herzegovina questions the value of these hybrid courts. Contrary to what might be expected, the results of multidimensional scaling indicate that Bosnia's foreign judges have not provided a reliable counterbalance to apparent ethno-national divisions on the Court. Furthermore, qualitative analysis suggests that the foreign judges have contributed to several strategic mistakes that have probably harmed the Court's tenuous authority. It is also suggested that the presence of international judges on constitutional courts may actually discourage the kind of strategic behavior that is needed to build and sustain judicial power, particularly in deeply divided and post-conflict contexts.

Puja Kapai Speaks on Sexual Harassment in the Workplace (RTHK)

"Court should be option in sex harassment cases"
RTHK Radio 3
27 Nov 2017

Summary: Legal expert Puja Kapai on Monday urged the government to give the equality watchdog more leeway to take sexual harassment cases straight to court, without necessarily going through a mandatory conciliation process first.  Speaking during a forum on sexual harassment in the workplace, the University of Hong Kong professor noted that at present, the Equal Opportunities Commission (EOC) can only offer legal assistance to alleged victims and represent them in court after conciliation efforts fail.

     While this is beneficial in some cases where the complainants don’t necessarily want to take their employers to court, Kapai warned that this approach can in certain cases be detrimental to the victim, saying the conciliation process could become another form of trauma.

     "Many of the victims in, particularly serious forms of sexual harassment, would not want to confront their perpetrators in context where they have no legal representation and they feel they already lack power," she said.

     “So rather than push them to go through the reconciliation process which inevitably is likely to fail or be settled prematurely or maybe settled at a very unfavourable amount, it’s probably better to recognize that this is not a suitable case and then to move on to other possibilities like having the EOC support them in bringing a claim in court”, Kapai added.  Click here to listen to the interview.

Court Commends HKU Clinical Legal Education Centre in False Representation Case

The HKU Clinical Legal Education (CLE) Centre recently helped a client win his magistracy appeal (HCMA 259/2016) in the High Court on a charge of making a false statement. HKU's Communication and Public Affairs Office summarised the news reports as follows:

A man who had been convicted of making a false statement knowingly in an application for public housing was acquitted with the help of the Free Legal Advice Scheme on HKU Campus. HKU Law Principal Lecturer Mr Eric Cheung represented the man in court and argued that the man’s $1,440 income for two days’ part-time work should not be counted as part of his “current monthly salary”. The government’s Legal Aid Department had rejected the man’s legal aid application which was only granted after the scheme’s intervention. The judge commended the scheme, saying it had helped to clarify the rights and wrongs of the case for justice to be done. (Apple Daily, Ming Pao)​

HKU Legal Scholarship Blog interviewed Eric Cheung, director of the centre, about the case, which he argued in court.

1. What was the main issue in the case? 

Client was charged with having "knowingly made false statement on 2 Feb 2010 in respect of an application for a lease under the Housing Ordinance (or, in layman's terms, in his application for public housing) by declaring that his average monthly income was $12,830". The prosecution case was that apart from his fixed salary earned for that amount, he had also earned $1,440 while working as a part-time employee for RTHK on 21 and 26 Nov 2009 at a rate of $80 per hour, with payment made to him by bank transfer from RTHK into his bank account on 5 Jan 2010, but he did not declare the same. D's case at trial was that he did not know that the payment from RTHK was received on 5 Jan 2010 because he had not checked his passbook, and he did not realise at that time that he had to declare such payment as his current monthly income. The Magistrate disbelieved him and found that he had knowledge of such payment but knowingly concealed the same when declaring his monthly income as $12,830. The grounds of appeal were that: 1. What he made was not a false statement because this one-off income from RTHK in the past was not his current monthly income, as the evidence at trial showed that he no longer expected to do any further part-time work for RTHK since 26 Nov, and in particular after he had found a full-time job on 5 Dec 2009. 2. The Magistrate erred in finding that he knew that he had to declare the RTHK income and/or knew that he did receive the same on 5 Jan 2010.

2. How did the centre assist the client and court on the legal point? 

D's application for legal aid was initially refused for not passing the merits test. He sought legal advice from us under our FLAS scheme. With assistance from our students on research etc, we took the view that there was merits in the appeal, and we wrote to Department of Legal Aid (DLA) accordingly. Eventually, legal aid was granted and I was assigned by DLA to represent him. 

3.  Who was the judge and what did he say?

It is before Deputy Judge Anthony Kwok. He allowed the appeal on my first ground, and decided that he did not need to deal with the second ground. He commended the scheme (see the above press summary). One interesting point is that the Acting Senior Public Prosecutor (Ivan Cheung) representing the Respondent is our past CLE student. He also said in open court that he found the CLE course very meaningful.

4. How do you feel about the centre's involvement in this case? 

Very pleased to help rectify another miscarriage of justice. Very moved when I saw D's wife crying with relief and joy after the appeal was allowed. She said they had been under great emotional stress over the year (N.B. If the appeal failed, they were likely be evicted from the public housing). See also a comment I received from a first-year law student who attended the hearing:

"Thanks for your real-life teaching today and I really enjoyed it. I have witnessed how the judge changed his mind after hearing what you have got and looking at the evidence in detail. I realize how important to get well-prepared beforehand because you always have to be alert in court and point out inaccuracies in information that the judge and the prosecuting counsel have in mind. And most importantly, it's really a kind of special fulfillment that you can hardly find in doing commercial work when it comes to helping with the clients to fight against injustice. The clients were very emotional after the judgment and it touched me. That's what I have learnt from you and I like working as a barrister like you (though you are technically a solicitor).​"

HKU Law Faculty Launches New Website on Research Integrity

The University of Hong Kong adopts the highest standards of research integrity for its staff and students. The Faculty of Law is pleased to announce the launch of a new website to guide users on the rules, procedures and questions related to research integrity in the law school context. The website has many short articles on the principles of research integrity, good research practices and research misconduct. It also features case studies and video recordings of trainers who have spoken at the University of Hong Kong. The website will serve as a valuable resource for staff and students who are applying for research ethics approval or seeking guidance on important topics in research integrity such as accountability, honesty, objectivity, openness, due diligence, fairness in giving credit and nurturing students and early-career research colleagues. The website can be accessed at http://www.law.hku.hk/researchintegrity/.

New Book by Anselmo Reyes: The Practice of International Commercial Arbitration (Routledge)

"The Practice of International Commercial Arbitration : A Handbook for Hong Kong Arbitrators"

Anselmo Reyes

Routledge

October 2017, 211 pp.

Description: Focusing on practical principles or guidelines for arbitrators, this book covers everything a prospective international commercial arbitrator should know about conducting an arbitration in Hong Kong. Specifically geared to those interested in or starting work as an international commercial arbitrator in Hong Kong, the book takes readers step-by-step through the problems that are likely to arise in the conduct of a commercial arbitration and in the development of their careers as international commercial arbitrators.

Michael Jackson on Determining Criminal Dishonesty, Implications of the UKSC's Ivey v Genting Casinos for Hong Kong

"Determining criminal ‘dishonesty’: a new challenge for our courts"

Michael Jackson

Boase Cohen & Collins Blog
16 November 2017

What makes a defendant ‘dishonest’ under Hong Kong’s criminal law? Uncertainty about this has been introduced into the criminal law of Hong Kong by the recent decision of the UK Supreme Court in Ivey v. Genting Casinos (UK) Ltd t/a Crockfords [2017] UKSC 67 (hereafter ‘Ivey’). Ivey, a professional gambler, claimed to have ‘honestly’ relied on a sharp-eyed ‘edge-sorting’ technique while playing cards in a casino, leading to substantial winnings. Not so, ruled the Supreme Court, declaring that Ivey had taken positive steps to ‘hoodwink’ casino staff and facilitate edge-sorting, and thus acted dishonestly. In so doing, the Supreme Court considered and rejected the ‘second leg’ (as it is called) of the ‘Ghosh direction’ on ‘dishonesty’, formulated by the English Court of Appeal in 1982 (R v. Ghosh [1982] 1 QB 1053), which Ivey had relied on to deny ‘dishonesty’. According to this direction, a jury or other fact-finder tasked with determining whether a defendant acted ‘dishonestly’:

‘...must first of all decide whether according to the ordinary standards of reasonable and honest people what was done was dishonest. If it was not dishonest by those standards, that is the end of the matter and the prosecution fails. If it was dishonest by those standards, then the jury must consider whether the defendant himself must have realised that what he was doing was by those standards dishonest.’

     Neither ‘dishonesty’ nor ‘dishonestly’ are statutorily defined in Hong Kong, save for the express exclusion of certain ‘beliefs’ in s.3 of the Theft Ordinance in relation only to theft (eg. D’s taking of another’s property is not to be regarded as ‘dishonest’, and thus not theft, if he took it ‘in the belief that he has in law the right to deprive the other of it’ or ‘in the belief that she would have the other’s consent if the other knew of the [taking] and the circumstances of it’). This left both a definitional gap in the criminal law, and also an analytical uncertainty, namely, does ‘dishonesty’ relate to and characterize the conduct element of dishonesty-based offences such as theft, or is it a separate mental element for such offences? Some jurisdictions have adopted the first analysis (eg. Canada), but the UK courts, in Ghosh, came down on the side of dishonesty being a mental element.

     In relation to the definitional gap, Ghosh did not actually define what had to be proved to establish this mental element. Instead, it directed fact-finders to apply their understanding of community standards of honesty and dishonesty to determine whether a defendant’s conduct falls the wrong side of the line, and then ask whether they can be sure the defendant ‘realised’ his or her conduct was ‘dishonest’ by those standards. The Ghosh direction was readily adopted in Hong Kong, and has been largely applied ever since, despite its somewhat open-ended and imprecise language. Its use was given the seal of approval by the Court of Final Appeal in Mo Yuk Ping ((2007) 10 HKCFAR 386). Importantly, the CFA in Mo affirmed that ‘dishonesty’ is a ‘state of mind’, even though Mo was charged with conspiracy to defraud at common law, necessitating proof of ‘dishonest means’, rather than just ‘dishonesty’. As to its meaning, Sir Anthony Mason NPJ, for the Court, stated (at para.48):

‘Although dishonesty in its ordinary sense does not lend itself to definition, it is not an arbitrary standard and a citizen should have little difficulty in appreciating what is dishonest judged by the ordinary standards of reasonable and honest people.’

     As the CFA affirmed, the first ‘leg’ of the Ghosh direction requires assessment of the defendant’s conduct (‘what was done’) against community standards of ‘honesty’ and ‘dishonesty’, and involves the application of an ‘objective’ test by fact-finders. In other words, the standard is fixed by the fact-finder, reflecting its intuitive sense of community standards, and is external to the defendant’s personal view about what amounts to dishonesty. But the second - or ‘subjective’ - leg directs attention to the defendant’s state of mind, and was intended to prevent conviction of a person acting with a state of mind which would negate a finding of dishonesty, or perhaps without sufficient understanding of the concept of honesty (eg. a person of low intelligence). So for example, a customer who leaves a shop without paying for an item, thereby acting in a manner which would prima facie be considered dishonest by ordinary standards, but who claims to have been distracted or absent-minded at the time, may pray in aid Ghosh’s second leg to prevent conviction, assuming that none of the three exclusions in s.3 of the Theft Ordinance apply (cf. someone who leaves the shop in the mistaken belief the item is a ‘free sample’, who could rely on either s.3(a) or (b)). Since s.3 applies only to the offence of theft, the second leg expands to encompass those same s.3 beliefs in relation to offences of dishonesty other than theft... Click here to read the full article.

Youth Civic Engagement in Hong Kong (new book chapter co-authored by Puja Kapai)

"Youth Civic Engagement in Hong Kong: A Glimpse into Two Systems Under One China"
Liz Jackson, Puja Kapai, Shiru Wang, and Ching Yin Leung

in Broom, Catherine (Ed.), Youth Civic Engagement in a Globalized World

Citizenship Education in Comparative Perspective (Palgrave Macmillan US), ch 4

Introduction: This chapter examines youth perceptions regarding civic engagement during a tumultuous time in Hong Kong.  We begin by examining the historical context of Hong Kong, tracing changes in its political status and educational system in relation to civil attitudes and behaviors of its population over time, particularly as Hong Kong shifted from a colony of the British Empire to a Special Administrative Region (SAR) of the People's Republic of China towards the end of the twentieth century.  Next, the chapter discusses the findings of a study of Hong Kong youth perceptions of civic engagement, comparing the views of youth with two distinct prior experiences of civic education: university students in Hong Kong who were previously educated in Hong Kong or Mainland China.  The study reveals significant differences between these groups, with important implications for reforming civic education in Hong Kong. 

Shahla Ali and Odysseas Repousis on Investor-State Mediation and the Rise of Transparency in International Investment Law (Denver J Int'l L & Pol'y)

"Investor-State Mediation and the Rise of Transparency in International Investment Law: Opportunity or Threat?"

Shahla F. Ali and Odysseas G. Repousis
Denver Journal of International Law and Policy
2017 winter, Vol. 45, p. 225

Introduction: Today, more than ever, the role of investor-state mediation cannot be appraised without regard to the mounting concerns against investor-state arbitration. Investment treaties typically protect nationals of one Contracting Party (natural persons or corporations) when realizing investments in the other Contracting Party State. The most common form of such treaties is the bilateral investment treaty (BIT). As of today, more than 2,800 BITs have been concluded, 2,100 of which are in force. To these treaties one may add regional free trade agreements that include investment chapters or regional investment treaties. One of the many examples is Chapter 11 of the North American Free Trade Agreement (NAFTA) that covers investments. All of these treaties provide for substantive rights and protections such as the prohibition against uncompensated expropriation and various non-discriminatory standards. However, investment treaties have [*226] attained their present recognition due to their dispute settlement provisions and particularly the investor-state arbitration clause almost mechanically inserted in the majority of such treaties. This arbitration clause enables investors to directly sue the host state for breaches of the investment treaty in an international arbitral tribunal typically comprised of three members. Investor-state arbitrations are either ad hoc or institutional, with the most well regarded institutional body being the International Centre for the Settlement of Investment Disputes (ICSID) established by the Washington 1965 Convention.

     Over the past three decades, investor-state arbitration proliferated with ICSID registering fifty cases per year and administering more than two hundred at any given time. The most frequent respondent states are Argentina (more than fifty cases), Venezuela, Czech Republic, Egypt, Canada, Mexico, Ecuador, India, Ukraine, Poland, and the United States. The increasing use of investor-state arbitration has also been met with opposition and a widespread consensus for the need of reform.  Over the past few years, Bolivia, Ecuador and Venezuela withdrew from the ICSID Convention and terminated a considerable number of BITs. More recently, South Africa and Indonesia have also filed notices to [*227] terminate BITs.

     The opposition towards investor-state arbitration stems, in many regards, from the characteristics of such contemporary dispute settlement procedures. In a nutshell, a significant number of investment arbitration cases involve investment in public service sectors and public utilities; investment claims arising out of emergency economic measures or civil unrest; and cases that revolve around issues of public health, environmental regulation, and human rights, in general. Moreover, investor-state cases often involve allegations of state misconduct and corruption, are costly dispute settlement procedures, and the payment of compensation in connection with any arising arbitration awards is borne by the taxpayers of the host state. All these factors are to the interest of the local population as the objectives of foreign investors, governments, and local populations are oftentimes conflicting. Investor-state arbitration has also been criticized for enabling the so-called "regulatory chill", which is a hesitancy to implement a higher degree of regulation in fear of investment arbitration claims.  [*228] As later discussed in this article, another source of concern for investor-state arbitration is the lack of transparency in such transnational proceedings. Finally, another concern that is frequently raised is the use of investor-state arbitration to circumvent national courts and the perceived bias of arbitrators, that act both as counsel and as arbitrator in related proceedings.

     The above concerns have influenced the drafting of contemporary investment treaties and have also led to initiatives seeking to reform some of the perceived deficiencies of international investment law. The most notable of such initiatives is the rise of transparency discussed in Part IV of this article.  Suffice however to say, that it should not be hard to see that greater transparency in investor-state arbitration is aimed at alleviating some of the concerns referred to above. Investor-state mediation is nevertheless a pre-arbitration dispute resolution method that, if successful, eliminates the need to pursue investor-state arbitration. However, as we will see, mediation in general and investor-state mediation in particular, is highly confidential. Would this then mean that investor-state mediation may be used in order to circumvent national courts without the need to adhere to the increasing standards of transparency and other public concerns that are sought to be addressed when it comes to investor-state arbitration? In other words, if the concerns raised with regard to investor-state arbitration have merit, why shouldn't they be applicable with respect to any investor-state dispute settlement proceeding? In addition to these questions, one should also take into account that the United Nations Commission on International Trade Law (UNCITRAL) is considering a multilateral convention on the enforcement of mediated settlements. If this treaty were to be concluded, would it mean that investor-state mediation would not only be a convenient method to avoid [*229] the high levels of transparency now paradigmatic to investor-state arbitration, but would also enjoy high levels of international enforceability?

     For now, these arguably legitimate concerns may be kept as a working hypothesis, or an issue to be determined after the apposition of three tenets. The first is the role of negotiation and pre-arbitration consultations in international investment law discussed in Part II of this article. With respect to this tenet, this article shows that investment treaties usually provide for negotiation and pre-arbitration consultation periods as a means to promote the amicable resolution of disputes between investors and host states. Given however that investor-state mediation is a distinct dispute resolution method, an examination of negotiation and pre-arbitration consultation periods is required in order to more fully detail the role and potential use of investor-state mediation. The second tenet is dealt with in Part II that focuses on the development and evolution of investor-state mediation as a distinct pre-arbitration dispute resolution procedure. Specific weight is given to two recent developments, the adoption by the International Bar Association (IBA) of a distinct set of rules for investor-state mediation that took place in 2012, and the appearance of distinct investor-state mediation provisions in recent investment treaties. Finally, the third tenet is the rise of transparency in investor-state arbitration that is discussed in Part III. In particular, this part lays out the main characteristics of the UNCITRAL Rule on Transparency and of the Mauritius Convention on Transparency in investor-state arbitration. With these three tenets in place, Part V, analyzes the implications of transparency in international investment law to the future role and importance of investor-state mediation.

Eric Ip on Debiasing Regulators and the Behavioral Economics of US Administrative Law (CLWR)

"Debiasing regulators: The behavioral economics of US administrative law"

Eric Ip
Common Law World Review
October 2017, Vol. 46, Issue 3

Abstract: Behavioral economics has revolutionized American legal scholarship in many areas of law, but not in administrative law, the law that regulates the regulators. This article theorizes that the administrative law doctrines developed by the Supreme Court of the United States strikingly resemble a system of ‘debiasing’ devices developed to counteract bureaucratic and judicial behavioral failures in just the areas that they matter most. A strong, alternative, justification may thus exist for the enduring paradox of American administrative law that administrators should be prepared to have their substantive decisions scrutinized by ‘hard look’ reviewing courts, while judges should be ready to defer to agencies on questions of statutory interpretation.

Bryane Michael & Say Goo Corporate Governance Regulatory Reform in Hong Kong (Business Law Review)

"What Does Corporate Governance Regulation in Hong Kong Teach Us About Incremental Legal Change?" 

Bryane Michael & Say Goo
Business Law Review
2017, Vol. 38, Issue 3, pp. 89-100

Abstract: Why does regulatory change occur much more slowly in some jurisdictions than in others? In this article, we look at the gradualist pace of Hong Kong’s corporate governance-related regulatory reform – particularly with regard to shareholder protection. We extend the concept of ‘legal transactions costs’ to explain such slow change. Costs of learning, experimenting and satisfying various constituencies about the advantages to their own interests of such reform represent some of these legal transactions costs. We describe how such legal transactions costs have worked against the creation of a minority shareholders’ association, the professionalization of board-directorships and the incorporation of soft law provisions in the Hong Kong Stock Exchange’s Listing Rules into hard law. We describe what the end result of such reform might look like – to assess the gap between current and possibly reformed corporate governance.

Yash Ghai Interviewed on Constitution Making and Sri Lanka (Daily Mirror)

"Prof. Yash Ghai reading Sri Lankan minds on federalism states 'There seems to be a phobia in your country'"

Amra Ismail
Daily Mirror
9 Nov 2017

In a recent visit to Sri Lanka, at the invitation of Democracy Reporting International, Yash Ghai shared with the Dailymirror the Kenyan experience of constitution making...

Q. Could you trace how Kenya was able to introduce a new constitution in 2010? 

It took a longtime. Discussions about a new constitution commenced about 12 years before we finally had the constitution. There are a number of reasons as to why it took that long. We were experiencing a very momentous period from a situation of a one party state to a very democratic constitution. So it took time to persuade the regime. 

     Fortunately, the people were very keen on a very democratic system which is fair to all the communities, and that helped us a lot. People appreciated what we were doing. The politicians also realized that the people were in support of a more democratic, participatory process. So in the end we put the draft to a public referendum and it was approved by 70% of the voters. It took a longtime because politicians kept changing their mind. 

     I think people were longing for a change for a long time because we’ve had two very tyrannical presidents, who completely monopolized state power. 

Q. Since it took 12 years for the Constitution to be introduced, was the same draft used? What exactly was the process?

One advantage we had-may be over the system here- is that there was a commission appointed to propose a Constitution. This was a mixture of academics and civil society people. There were no politicians involved. I chaired that commission. We had good resources. We had enough money from Parliament and I didn’t need to raise money from outside. So in comparison to the work the commission achieved within 4 or 5 years, the period before wasn’t so formulized. But the civil society had become very active and they had been meeting and putting pressure on the Government. They had even done a rough draft of the Constitution. Ours was much longer and more sophisticated. But we did use the draft they had made. By that time there was strong public support. I think that was basically what kept the process going... 

Q. In Sri Lanka, the constitution making process has gone beyond the stage of the Public Representations Committee (PRC) report and the interim report has been released. When it comes to debating the interim report, do you think it’s still important to consult the public and obtain their views? 

Oh, yes, I think it’s essential during all the stages. They have to be consulted and there has to be publicity for all the discussions that take place in parliament or committees. In our case it wasn’t a parliament. It was produced by 15 of us after all these consultations I mentioned and all the research. Not a single politician was involved and they didn’t like some parts, and I said ‘sorry, people in this country want it’. So I would say continue with the dialogue with the people... Click here to read the full article.

Michael Ng on Access to Justice in Rural China: A History of Atypical Legal Development and Legal Service Provision (The China Review)

"Nonprofessional Access to Justice in Rural China: A History of Atypical Legal Development and Legal Service Provision"
Michael Ng and Xuanming Pan
The China Review: an Interdisciplinary Journal on Greater China
October 2017,  Vol. 17, No. 3, pp. 59-86

Abstract:  This article provides a corrective to the conventional discourse on legal development in modern and contemporary China. By mapping the landscape of nonprofessional legal service provision crossing over modern and contemporary history, this research proposes a new analytical framework for understanding lawyering, professionalization, and access to justice in China. Previous studies present an urban-centric view and highlight the alternativeness and transitional nature of nonprofessional legal service providers (who operate primarily in rural China) vis-à-vis the professionally trained and qualified lawyers (who serve primarily in urban China). The urban-oriented discourse downplays, if not ignores, the historical fact that the ordinary people of China, mostly residing in rural areas, have relied on nonprofessional legal workers as their mainstream access to justice for centuries, with demand for their services remaining largely unchanged throughout the Qing, Republican, Mao, and post-Mao eras despite the attempted monopolization of the legal market by qualified lawyers. This article therefore argues for a reorientation of the conventional inquiry concerning the path toward the professionalization of lawyering in China that is framed in terms of license-based expertise and access. Rural legal workers, this article further argues, will, and should be allowed to, continue to meet the legal demand of the broader rural masses in China, demand that can hardly be met by the socially elite qualified lawyers practicing in urbanized China and provide, together with the qualified legal profession, dual-core access to justice in China.

Shitong Qiao on Dealing with Illegal Housing: What Can New York City Learn from Shenzhen (Fordham Urban LJ)

"Dealing with Illegal Housing: What Can New York City Learn from Shenzhen?"

Shitong Qiao

Fordham Urban Law Journal

2016, Vol. 43, Issue 3, pp. 743-769

Abstract: In New York City, owners violated zoning regulations and opened up their basements, garages, and other floors to rent to people (particularly low-income immigrants) priced out of the formal market. The more than 100,000 illegal dwelling units in New York City (NYC) were referred to as “granny units,” “illegal twos or threes,” or “accessory units.” Due to the safety and habitability considerations of “alter[ing] or modif[ying] of an existing building to create an additional housing unit without first obtaining approval from the New York City Department of Buildings (DOB),” the City government devoted a lot of resources to detecting and stopping such illegal conversion. Recently, however, Mayor Bill de Blasio proposed to legalize such illegal dwelling units to increase the City’s rent-regulated housing stock. The question remains as to whether crackdown or legalization is the right policy. Such illegal housing is not unique to NYC. Shenzhen, a city in south China that experienced a population explosion from 300,000 to over 10 million within three decades, faces the same problem as NYC: legal housing supply cannot catch up with the population growth, resulting in prevalent illegal housing supply. Almost half of Shenzhen’s buildings have been built illegally and now host over eight million migrant workers and low-income residents. In the past three decades, the Shenzhen city government has swung between legalization and crackdown of such illegal buildings, neither of which has resolved the problem. Due to the large number of illegal apartments, the “crackdown” option has proven to be impossible, while legalization has incurred huge information costs and encouraged more illegal constructions. In more recent years, though, the Shenzhen city government has discovered an effective policy: Keeping the city government’s zoning power intact while granting an option to owners of illegal housing to buy an exemption. The lesson from Shenzhen is that options matter at least as much as the allocation of initial entitlements. In the case of prevalent zoning violations, these options should be granted to parties that have the best information to make decisions — the numerous individual owners rather than the government. I propose that this optional zoning approach should be taken in dealing with illegal housing in New York City.  Click here to download the full article.

Rong Du on China's Approach to Space Sustainability: Legal and Policy Analysis (Space Policy)

"China's approach to space sustainability: Legal and policy analysis"
Rong Du (SJD 2017)
Space Policy
October 2017

Introduction: The concept “space sustainability” came to the landscape of international space community in response to the increasing concerns over the safety and security of outer space in recent years, especially the risk posed by long-lived space debris. By far, there is no agreed definition on space sustainability. It often appears in association with space safety and space security or encompasses the meaning of safety and security in outer space, with an emphasis on the long-term impact of current space activities and due considerations deserved by future generations.1 The threats to space assets may come from the collision risk posed by orbital debris and asteroid or interferences from hazardous space weather.2 Space debris is the most serious issue. States have been dealing with space debris from two perspectives, debris mitigation and removal, and monitoring space debris through space situational awareness (SSA) capability. China started to develop the space industry since the 1950s and has carried out various space programs. After efforts of several decades, it has become autonomous in the construction and launch of satellite. By far, it possesses almost 150 satellites in orbit. It also has made remarkable progress in the exploratory and scientific missions, such as human space flight and lunar exploration. It will continue to give a high priority to the space sector for the purpose of boosting economic growth and safeguarding national security. Yet, due to the lack of national space policy, there have always been concerns on how China will carry out space activities in a responsible and sustainable way. The previous researches discussed China's performance in tackling space debris from the legal perspective. But they overlooked the policy aspect and did not address the implications of the civil-military relationship for the space sector. Among the external observers, there are different understandings toward China's strategy in outer space. The 2007 anti-satellite (ASAT) test is often cited as an evidence of China's ignorance to the sustainability of outer space environment. Yet the underlying causes should be carefully studied, other than widely speculated. Meanwhile, China has become more proactive in the multilateral efforts aiming to create new norms for space sustainability. Its participation carries substantial weight in the conclusion of the agreements. These instruments, once adopted, will contribute to shape China's behaviors in outer space. This paper examines the parameters that are affecting China's approach to space sustainability and suggests how China could make systematic efforts toward space sustainability, with a major focus on the civil-military interaction. Part 2 reviews the space governance structure and the progress made by China by far. Part 3 examines the 2007 ASAT test from the perspectives of the civil-military gap, the US's responses, and the military sector's narratives on space strategy. Part 4 further discusses to what extent the newly created Central National Security Commission (CNSC) and the military reform will fill the civil-military gap and facilitate the deliberation of space policy. Part 5 draws the correlation between ASAT capability and the Treaty on Prevention of the Placement of Weapons in Outer Space and of the Threat or Use of Force against Outer Space Objects (PPWT) and discusses the political factors pertaining to the prospect of the PPWT. It also discusses how far China is from the International Code of Conduct for Outer Space Activities (ICoC), taking into account the interactions between the PPWT and the ICoC.

Farzana Aslam on Harvey Weinstein and the Bystander Effect (HKPF)

"Harvey Weinstein and the bystander effect: How sexual predators persist in a conspiracy of silence"

Farzana Aslam

Hong Kong Free Press

29 October 2017

Harvey Weinstein’s fall into disgrace bears remarkable similarities to the scandal a few years ago in the U.K. about the British celebrity, Jimmy Savile. These two cases have common features in terms of how sexually predatory behaviour is perpetrated, perceived, and ultimately perpetuated.

     The male perpetrators in each case had achieved a certain status and standing in society; they were powerful and popular. Their alleged predatory behaviour was directed at the young and vulnerable. The predatory behaviour spanned decades... Click here for the full text.

New Book by Michael Ng: "Kids also know the law"《細路都識法》(Joint-Publishing)

"Kids also know the law"《細路都識法》
Michael Ng
Joint-Publishing (H.K.) Co., Ltd.
October, 2017, in Chinese, with illustrations in pictures, 161 pp
Foreword by Professor Albert Chen

Description: This is a book for kids to acquire legal knowledge and broaden their horizons.  It is a new innovative book for parents to read with kids outside the classroom, a new way for kids to think critically about their everyday lives.
     The story is about a father who has two daughters.   Ten years ago, Dr Michael Ng wished to write a book for kids to read, but he thought it would be hard to make the reading for kids interesting.  Until he had his own two daughters, he realized that to make sure kids learn a moral lesson, he had to let them think and ask questions on their own and to ponder everyday life.  Only until they came to understand how morality could be interconnected with their everyday life, they would be stimulated to read widely and think critically.  Thus, he created this "law book" with kids as the focus; each story is related to their daily family life, school life, social life, etc.  There are three characters in the story, they are Kitty Treasure, little primary school girl Ching and her brother Long, who all know the law well.   Dr Ng's aim was to integrate law into the everyday life of kids in a lively and stimulating way. 

    Why do kids also need to know the law?  In Dr Ng's own words,

'I wish kids after reading this book will be aware of Hong Kong's good and proper legal system and traditional rituals that reinforce respect for human beings.  Although law cannot solve all problems in life, law can protect us.  It is because we need to protect our future generation to sustain the rule of law, this book is meaningful by passing on the message through reading from generations to generations.' 

The book was nominated for the 2017 Hong Kong Book Prize.

(內容簡介

這是一本專門寫給小朋友的法律書，更可能開創了知識類課外書和父母教養小朋友的新範式——一種以孩子生活和思考角度為本位的教導方法。

故事要從兩個女兒的父親——吳海傑博士說起。十年前，他就很想為小朋友寫一本法律書，但卻不知道如何令小朋友覺得有趣。直至有了兩個可愛的女兒，他才知道：要讓孩子明白道理，你先要讓他們知道為什麼要明白；當他們明白了道理和他們的生活有什麼關係，才會有興趣繼續閱讀和思考。因此，他創作了這本以孩子為本位的法律書，每一個故事都與孩子平日的家庭生活、學校生活和社交生活有關；故事的三位主角，是熟識法律的可愛貓咪法寶、小學女生晴晴和她的哥哥朗朗。不包羅萬有，也不沉悶刻板，務求描述孩子每天生活中的法律元素。

爲什麽細路都要識法？

「我希望小孩子讀完這本書後會知道香港是個守法知禮的社會，法律雖然不能夠解決所有問題，但可提供最基本的保護。而這種保護未來能否維持下去，便要靠讀這本書的一代人了。」)

Richard Cullen on Whether the National Anthem Law Should Apply Retrospectively (SCMP)

"Hong Kong could apply national anthem law retrospectively, but should it?"

Richard Cullen
South China Morning Post
1 November 2017

A new national anthem law came into force in mainland China on October 1. The law will be added to Annex III of the Basic Law. Hong Kong is due to apply the law, adapted for the city, fairly soon.

     Most debate – implicitly accepting that the law will be applied in Hong Kong – has pivoted around the question of whether this law could be applied retroactively. This discussion has arisen, above all, because of the continuing verbal and written scorn directed at the national anthem at certain sporting events in Hong Kong. Some have argued that to discourage such behaviour, retroactive implementation of the law should be considered.

     Various claims made by certain lawyers and lawyer-politicians in essence argue that retroactive laws – or retrospective laws – do not exist within the criminal laws of the common law system. It follows from this, it is said, that the national anthem law (which will apply some level of criminal sanctions to any breaches) cannot be made to apply retroactively. Unfortunately, these claims are simply wrong. The highest courts in the UK and Australia, for example, have each given the green light to retroactive criminal laws... Click here to read the full article.