Cora Chan and Fiona de Londras on China's National Security in Hong Kong: A Challenge for Constitutionalism, Autonomy and the Rule of Law (new book chapter)

"Introduction: China's National Security in Hong Kong: A Challenge for Constitutionalism, Autonomy and the Rule of Law"

Cora Chan and Fiona de Londras

in Cora Chan & Fiona de Londras (eds), China's National Security: Endangering Hong Kong's Rule of Law? (Hart Publishing, March 2020),
Chapter 1, pp. 1-18

Introduction: For 30 years now, the Hong Kong people have persevered in holding an annual candlelight vigil on 4 June to commemorate the 1989 Tiananmen Square Massacre, urging the Chinese Government to admit it was wrong to perpetrate the massacre and to end one-party rule. Hong Kong is the only jurisdiction in China in which such a demonstration could openly take place. A former British colony and now a Special Administrative Region (SAR) of the People's Republic of China (PRC or China), since its return to Chinese sovereignty in 1997 Hong Kong has been governed under the framework of 'one country, two systems', which allows it to practice separate economic, legal and political systems from those on the mainland. The framework's aim is to preserve Hong Kong's distinctiveness vis-a-vis China, including its liberal rule of law tradition, which remains strong after more than two decades of Chinese rule. Yet, given China's intensifying national security advances and rising economic stature, real questions arise about how much longer, and by what means, this tradition can persist.

     In this book we aim to explore those questions, understanding them through the prism of the query suggested by its title - Does China's national security endanger Hong Kong's rule of law? - by investigating whether, and if so how, China's national security can be protected without jeopardizing the rule of law in Hong Kong. From the perspective of both China and Hong Kong this is a vitally important question, not least because it goes to the heart of whether 'one country, two systems' is a viable model for governing the constitutional relationship between them in the long run. Although the opening up of China's economy has rendered the economic differences between China and Hong Kong much less apparent than when that governing model was first conceived, their legal traditions remain highly divergent. For many Hong Kong people the biggest challenge in implementing 'one country, two systems' has been maintaining Hong Kong's vibrant common law system, with its respect for human rights and the separation of powers, within the envelope of China's Leninist legal system. A solution to that challenge would resolve the broader question of how to make this constitutional model work. This is of wider significance for China: from its perspective what is at stake is not just the ability to govern Hong Kong and continue utilizing the territory to facilitate its market reforms, but also the prospect of reunification with Taiwan, for which the 'one country, two systems' model was originally designed. What is at stake for the seven million inhabitants of Hong Kong is not just the ability to maintain a separate legal system, but the very identity of Hong Kong, which has long defined itself by being what China is not. For Hong Kong people, without the rule of law, the territory seems destined to become 'just another Chinese city'.

     When it comes to security, the relationship between China and Hong Kong, and the functioning of 'one country, two systems' are especially challenging; on the one hand, China fears that security risks to the overall state may foment and find operational space in Hong Kong and thus insists that the Hong Kong Government introduce what it considers 'appropriate' security-related laws; on the other, people in Hong Kong fear the imposition of such laws in a way that undermines their civil liberties, including liberties on the basis of which Beijing can be challenged, organised against and subjected to public criticism. Both concerns have purchase, both point towards the very real difficulties of reconciling two fundamentally different dispositions towards law and legality within one overall national legal system.

New Book: "No Third Person: Rewriting the Hong Kong Story" by Christine Loh and Richard Cullen (Abbreviated Press)

No Third Person: Rewriting the Hong Kong Story
Christine Loh and Richard Cullen
Abbreviated Press

2018, 

Description: British Hong Kong had a good story in the run-up to 1997. Its people worked hard and had an indomitable spirit. China had its own story about Hong Kong: after reunification, the city would prosper as never before due to China’s wise and pragmatic “one country, two systems” policy. Hong Kong people and the world bought those stories. But now it is clear that the British version of the Hong Kong story no longer holds while Hong Kong people are not so sure about themselves and their future seems less bright. The city and its people are stuck—they have no compelling narrative that joins the past and the future. This book is based on our thoughts of what a new Hong Kong story might be: a story about “us” and “you”, the people who care about Hong Kong, not an impersonal “he/she/it” story—a story, moreover, to be worked out between Hong Kong and mainland China and no one else.

About the Authors: Christine Loh Kung-wai has served Hong Kong in the public, NGO and educational sectors for more than three decades, most recently as Hong Kong Undersecretary for the Environment. Richard Cullen is a Visiting Professor in the Faculty of Law at the University of Hong Kong.  Be sure to catch the book launch at the Foreign Correspondents Club where the authors will speak about their book at the Club Lunch on 18 October 2018.  The book was featured in a SCMP article by Jeffie Lam on 1 October 2018.   Loh and Cullen were interviewed by The Diplomat's Shannon Tiezzi for an article published on 10 November 2018.

Autonomy with Portuguese Characteristics (HKLJ)

"Autonomy with Portuguese Characteristics: A Primer on the Privileges of Portugal's Autonomous Regions for the Special Administrative Region Audience"

Jason Buhi (PhD Candidate)
Hong Kong Law Journal
2016, Vol 46, Part 3, pp 879-902

Abstract: In December 2015, the National People’s Congress Basic Law Committee sent a six-person delegation to investigate the relationship between mainland Portugal and its two “ultraperipheral” autonomous regions: the Azores and Madeira archipelagos (PARs). To the residents of Hong Kong and Macau, this occurrence begs understanding of what form that autonomy takes, and what its implications could be for the future development of China’s Special Administrative Regions (SARs). The answers present both rich opportunities and challenges. This article is intended as a primer on Portuguese-style autonomy for the SAR audience. It examines both normative and empirical resources in describing Portuguese practice. Variations in context, political architecture, central-local relations and international identity are explored. Essentially, while the PARs do not have all of the privileges of the SARs in terms of economic liberty and legislative competence, they do enjoy universal suffrage, permanent constitutional recognition and privileged access to the most extensive fundamental rights regime in the world.

Roda Mushkat Reviews Ray Yep's Book, Negotiating Autonomy in Greater China (HKLJ)

"The Politico-Economic Context of Special Regional Autonomy: International and Constitutional Law Meets the Hong Kong Predicament"
Roda Mushkat
Hong Kong Law Journal
2016, Vol. 46, Part 1, pp. 287-306

Abstract: However elastic the interpretation resorted to, the gap between norms embodied in legal instruments, international and domestic, and multi-level behavioural patterns crystallised in the course of their implementation may be sizeable. The potential for this divergence and the factors responsible for it have not received adequate theoretical attention in the literature, including regional autonomy, especially in the challenging and delicate Hong Kong environment. The book under review amounts to a possible quantum leap in this regard because of the authors’ willingness to cross the boundaries between formal and informal inquiry, engage researchers from several disciplines, conceptualise the problem in broad and complex terms, not to be rigidly constrained by static logic and embrace dynamic evolution as an inescapable reality. Some questions inevitably remain unanswered, but a solid foundation for a less reductionist and more fruitful line of academic investigation has been laid.

New Issue of Hong Kong Law Journal (Part 1 of 2016)

Hong Kong Law Journal

Vol. 46, Part 1 of 2016

Editor-in-Chief: Professor Rick Glofcheski

Associate Editor: Professor Albert Chen

Table of Contents

Focus: The Life and Future of British Colonial Sexual Regulation in Asia
Preface Lynette J Chua and Michael Hor	1
Trans* Individuals and Normative Masculinity in British India and Contemporary Pakistan Shahnaz Khan	9
The Wife as an Accomplice: Section 377 and the Regulation of Sodomy in Marriage in India Saptarshi Mandal	31
The Limits of Liberty: The Crime of Male Same-Sex Conduct and the Rights to Life and Personal Liberty in Singapore Jack Tsen-Ta Lee	47
Legacies of Exceptionalism and the Future of Gay Rights in Singapore Stewart Chang	71
Pride or Prejudice? Sexual Orientation, Gender Identity and Religion in Post-Colonial Hong Kong Amy Barrow and Joy L Chia	89
International Law and the Rights of Gay Men in Former British Colonies: Comparing Hong Kong and Singapore Carole J Petersen	109
Towards the Elimination of Prescriptive Sexual Regulation in Family Law in Singapore Leong Wai Kum	131
Asia and Oceania LGBTI Law Reform: Breaking the Log-Jam The Hon Michael Kirby AC CMG	151
ANALYSIS
A Commentary on Jetstar Hong Kong Airways Decision before the Air Transport Licencing AuthorityJae Woon Lee and Michelle Dy	175
ARTICLES
Interaction between International Standards and Domestic Constitutional Norms—A Case Study of the Chief Executive Election in Hong Kong Lin Feng	193
The Illegality Defence in Corporate Law Claims Against Directors and Officers Wai Yee Wan	225
Deconstructing Sponsor Prospectus Liability  Syren Johnstone, Antonio Da Roza and Nigel Davis	255
REVIEW ARTICLE
The Politico-Economic Context of Special Regional Autonomy: International and Constitutional Law Meets the Hong Kong Predicament Roda Mushkat	287
CHINA LAW
Practice and Theory of the Guiding Case System in China Yang Li	307
Lame-Duck Bankruptcy Institutions under Government Intervention in Reorganisation of Listed Companies in China (Part 1) Zhao Huimiao	339
BOOK REVIEWS
Board Accountability in Corporate Governance, Andrew Keay Lin Zhang	379

Michael Davis on What Next for Hong Kong Leaders after Reform Veto

"Reform failure should prod Hong Kong leaders to step up as defenders of our autonomy"

Michael Davis

South China Morning Post

27 June 2015

A lot of recent attention has focused on Hong Kong pan-democrats and what they should do after their failed attempt to secure democracy. This attention might be better focused on the Beijing and Hong Kong governments. Last week's Legislative Council vote was a disastrous end to a nearly two-year campaign to push through alleged democratic reform. Soul-searching by our top officials is clearly needed.

     While opinion polls seemed to suggest equal support for and opposition to the bill, in fact, supporters often acknowledged that the proposal was flawed. Their support was often based on the premise of future changes - hardly a resounding endorsement if this is not a realistic possibility. Given the level of foot-dragging over democratic reform in the past 17 years, one would have to be pretty gullible to expect further significant reform to institute genuine democratic elections.

     Rather, public support for the bill was probably based on the intimidation factor; many were prepared to accept an undemocratic model to avoid further contention. But what is the source of this contention? Laying the blame at the feet of protesters hardly seems fair. The protests were driven by the efforts to block genuine reform. Beijing, in its white paper and its August 31 decision, clearly aimed to block pan-democrats from being presented to voters... Click here to read the full article.

What Happened to Hong Kong's Right to Resolve its Own Problems

"Hong Kong's Right to Resolve its Own Problems, Provided by law, is Lost on Leung Chun-ying"

South China Morning Post
21 January 2015
Michael Davis

The Hong Kong government has lately had great difficulty understanding what autonomy is and what its responsibilities are for the high degree of autonomy provided under the Basic Law.  In last summer's white paper, Beijing admonished us that a "high degree of autonomy is not full autonomy".  In his policy address, the chief executive, following Beijing's line, argued that the protester's slogan of "Hong Kong shall resolve Hong Kong's problems" violated the constitution.  The protests in Hong Kong have been driven by the concern that the special administrative region's autonomy is being eroded. In the face of a local government that has been unwilling to defend Hong Kong autonomy, many Hongkongers fear it will be lost and, along with it, the rule of law and other core values. For the protesters, democracy offers the possibility of a government that will represent Hong Kong concerns more effectively in its relationship with the central government.  Click here to read the full article.