Monday, August 19, 2019

Michael and Goo on the Panama Papers and Corporate Governance Reform in Hong Kong (Tsinghua China LR)

"What Do the Panama Papers Teach Us about the Administrative Law of Corporate Governance Reform in Hong Kong?"
Bryane Michael and Say Goo
Tsinghua China Law Review
2019, Volume 11, Number 2, pp. 370- 413
Abstract: A complex business environment calls for a flexible administrative law for the agencies that oversee corporations. Nowhere illustrates this maxim better than Hong Kong, and its need to reform corporate regulations after the Panama Papers revelations. We describe how only a “non-administrative” administrative law can best cope with the challenges facing the regulation of corporate governance. Such a flexible, results-oriented approach to administrative law develops new principles and tests, rather than gives civil servants instructions. Such an approach to corporate governance can facilitate the assessment of company governance, corporate disclosure, the self-regulation of professional groups like lawyers and accountants, as well as ensure corporations engage in “legitimate economic purposes.” We engage with the literature, showing why such a flexible approach to administrative rulemaking would more likely reduce some of the government regulation and oversight problems exposed by the Panama Papers than previous approaches toward drafting and implementing administrative law (at least in this area).  Click here to download the full article.

Sunday, August 18, 2019

David Law Interviewed on US-HK Relations (HKEJ)

Professor David Law, Sir YK Pao Professor of Public Law, was recently interviewed by the Hong Kong Economic Journal on United States-Hong Kong relations. The interview focused on the Hong Kong Policy Act, whether and how it might be amended, and more generally how Congress can influence US policy/treatment towards Hong Kong. In the interview, Law drew an analogy to the Taiwan Relations Act and discussed how the separation of powers system in the US gives Congress various options for influencing government policy short of amending legislation (e.g., influencing the State Department through the budget process).  To read the interview in Chinese, click here.

Saturday, August 17, 2019

Charles Lam (SJD 2017) Comments on the Disqualification of Legislative Candidates at the Nomination Stage by Hong Kong Returning Officers

Dr Charles KN Lam
With great sadness we received the news that Dr Charles KN Lam (LLB 1998, PCLL 1999, LLM 2004, SJD 2017) passed away on 15 May 2019.  Although Dr Lam's doctorate was on corporate governance and he taught business law at the Hong Kong University of Science and Technology, he was passionate about human rights and public law issues.  This is a posthumous publication of his commentary written in March 2019 on the recent cases of disqualification of legislative candidates by returning officers.

Should disqualification of legislative candidates be allowed at the nomination stage by a returning officer? 

A proposed plan to have an election court deal with the independence discourse
Dr Charles KN Lam

Introduction
In a hypothetical world or utopia, it is much better to have no disqualification of legislators at all.[1] But Hong Kong is a Special Administrative Region under the People's Republic of China (PRC). If there is an independence discourse, it is better to deal with it properly and internally. It is not desirable to have another unnecessary interpretation over Hong Kong or a more urgent and draconian Article 23 of the Basic Law (i.e. national security law) to be imposed on Hong Kong. After all, Hong Kong still needs to maintain law and order in society, including but not limited to the legislature. Hong Kong cannot bear the cost of going down the route of political turbulence. A stable and prosperous Hong Kong with well-entrenched institutions to protect the economy, the rule of law and individual rights and freedoms would be a good reference and example for China on its road to modernization. 
     There has been an unprecedented storm in Hong Kong recently in the political scene in relation to the disqualification of legislators and legislative candidates. This paper highlights the need for free and open elections where competent and capable candidates are allowed to openly compete for electoral seats with the right to vote and the right to stand for election in accordance with the law irrespective of political opinion and affiliation. It is argued that if there is an independence discourse on the part of any potential candidate, the returning officer is in no position to judge whether he or she is in breach of the law as they are not legally trained to judge on this issue and may make a decision mainly from a political perspective. After all, this should only be a legal judgement rather than political screening. It is better to have a well-entrenched judicial system to decide on this matter. It is therefore suggested that the Spanish example of the establishment of an Election Court may be followed in Hong Kong. An Election Court which is separate from the normal judiciary can provide a proper procedure and a full court hearing on both evidence and law to hear constitutional election petitions. The court would be in a better position to decide whether a candidate is honest and candid and whether he or she genuinely upholds the Basic law after hearing submissions on both sides in an adversarial system. It is crucial that a legislator of the HKSAR should swear allegiance to Hong Kong and the PRC as he or she is a legislator within the legislative institution and establishment. According to the press statement issued by the HKSAR government, "self-determination" or changing the HKSAR system by referendum which includes the choice of independence is inconsistent with the constitutional and legal status of the HKSAR as stipulated in the Basic Law, as well as the established basic policies of the PRC regarding Hong Kong. Upholding the Basic Law is a basic legal duty of a legislator. If a person advocates or promotes self-determination or independence by any means, he or she cannot possibly uphold the Basic Law or fulfil his or her duties as a legislator.”[2] All in all, a member-elect should take an oath in accordance with the Oaths and Declarations Ordinance and the Basic Law[3], if he or she is against the constitution and the constitutional set-up, it is doubtful whether he or she can become a legislator within the constitutional framework.[4] There are rules and procedures to follow in order to maintain law and order in society if one does not want to see Hong Kong go down the road of being a total mess-up. And if Hong Kong can deal with the issue of independence properly and internally, it is argued that an urgent and draconian Article 23 of the Basic Law will not necessary to be imposed on Hong Kong.

The meaning of self-determination and its relationship with the independence discourse
It seems that Miss Agnes Chow (Chow), a legislative candidate, was disqualified because, according to the returning officer, she asked for democratic self-determination and therefore failed to genuinely uphold the Basic Law and pledge allegiance to Hong Kong and China[5]. When it comes to the term “self-determination”, it may mean different things to different people. Some people would equate self-determination with independence while others would think self-determination is consistent with a high degree of autonomy under one country, two systems. As stated in the election petition[6], “this is why Demosisto advocates for a referendum on our future with constitutional effect, for Hong Kongers to legitimize Hong Kong’s sovereignty and self-governance. Even though Demosisto does not advocate for the independence of Hong Kong, in order to realize the ideal of ‘sovereignty of Hong Kong’, we agree that the referendum should include options such as independence and regional autonomy.” According to Albert Chen[7], self-determination is rooted in international law where people seek for independence under the colonial rule. And, according to him, it is problematic that some people now aspire to use referendum to decide whether independence is desirable in the future and is an option on the table. This is highly problematic as independence is not an option for Hong Kong under the constitutional principle of “one country, two systems” according to the Culture Fit theory, Economic Integration theory, Gratefulness theory and the fact that Hong Kong is a part of China for at least 3,000 years and Hong Kong people are generally against the idea of independence. As a legislator, he or she is entrusted with the legislative role and enacts laws on behalf of the Hong Kong people. The independence movement goes against the foundation of Hong Kong under the principle of one country, two systems. As a legislator, he or she should be the role model for the youngsters to follow and should not put forward a discourse or movement which is detrimental to the interest of Hong Kong, and practically it is also impossible given the fact that Hong Kong practises Chinese culture and customs for 3,000 years according to the Culture Fit theory.[8] 
     Nevertheless, when it comes to the independence discourse, instead of deciding on purely documentary evidence, a court of law with a full trial hearing should be invoked to discuss this constitutional issue fully through an election petition by an Election Court as discussed below. This is especially so as the returning officer had taken into consideration developments like the interpretation of Article 104 of the Basic Law by the Standing Committee of the National People’s Congress (SCNPC). In this respect, the returning officer was in no legal position to judge the constitutionality of Article 104 of the Basic Law and the interpretation by the SCNPC. In particular, the returning officer did not explain how Article 104 and the interpretation impacted upon her decision to disqualify the petitioner. Therefore, Chow argued that the returning officer did not follow the rule of natural justice to give her a reasonable opportunity to argue the case and put forward documentary and oral evidence to prove otherwise. 
     In an article by Po Jen Yap and Eric Chan[9], the authors observed that the Court of Appeal held that para 2(3) of the SCNPC’s interpretation automatically disqualified the pair of lawmakers forthwith from assuming their offices. “The term ‘automatic’ or automatically is found nowhere in the Interpretation. The Interpretation only uses the term ‘forthwith’, which means ‘without delay’, and it would not be inconsistent with the Interpretation for the CA to punt the issue over to the President to proceed with the disqualification expeditiously.”[10] With respect, the word “forthwith” also means “immediately” according to the Oxford Dictionary. As the authors agreed that whether the oath taken is valid or not is an issue for the court to decide, once the court decides it as invalid, the oath taker is disqualified forthwith or immediately from assuming public office. In addition, according to para 2(4) of the Interpretation, if the oath taken is determined as invalid, no arrangement shall be made for retaking the oath. And the oath-taker is disqualified forthwith or immediately. Thus, even if the word “forthwith” simply means without delay but not automatic, when the court refers the issue back to the President of the Legislative Council to decide, he will still be bound by the Interpretation, which precluding taking the oath a second time, unless one can argue the rule against retrospectivity of the NPCSC interpretation is applicable to the present case. As said by the authors, “therefore, the presumption against retrospectivity is not displaced and if the Interpretation is viewed as a piece of legislation, it should not operate retrospectively to events that predated its announcement.”[11] 

The way forward for the younger generation in an open society
The above discussion is highly philosophical, a label like self-determination is not going to generate any benefits to Hong Kong. It is advisable to drop the label of self-determination but Hong Kong people can still manage and decide their future under a high degree of autonomy[12] with Hong Kong people ruling Hong Kong.[13] In the words of Albert Chen, “where the population in a particular area of a nation-state is sharply distinguishable from those in other areas by reason of some of these factors, it may demand a high degree of autonomy for the purpose of protecting certain basic interests or values against encroachment by the nation-state as a whole.”[14] That is why Hong Kong is given a high degree of autonomy with Hong Kong people ruling Hong Kong since the two systems are very different and the purpose of a high degree of autonomy is to protect basic interests of the people against “encroachment” by the national power.[15] 
     It seems that after the challenge of the returning officer, some parties had deleted the term “self-determination” in their manifestos. There is an urgent need to revisit the party’s goals and manifesto. However, merely deleting the term in the manifesto is not going to change the whole political perception and landscape. The younger generation should do more to demonstrate that they uphold the Basic Law and the principle of one country, two systems. They should offer their olive branches and be more cooperative by discussing the political issues with the government or even joining government committees like the Youth Committee. With this kind gesture, it will be very surprising to the public if the government does not respond proactively. In an open society, according to Karl Popper[16], it takes two to tango and it is always better to have open discussion and dialogue. A closed-door policy is not going to provide a harmonious atmosphere for discussion and collaboration. Participation in politics by the younger generation should not be marginalized but instead should be highly encouraged.

Why the disqualification issue should be handled by a court of law instead of a returning officer
Currently, there are specific grounds under the Legislative Council Ordinance where a legislative candidate can be disqualified. According to section 39 of the said Ordinance, a person is disqualified from being nominated as a candidate at an election and from being elected as a member if he or she: (a) is a judicial officer; (b) an officer of the Legislative Council; (c) has in Hong Kong or any other place, been sentenced to death or imprisonment; (d) has been convicted of treason; (e) on the date of nomination, or of the election, is serving a sentence of imprisonment; (f) is or has been convicted, within 5 years before the polling day, of having engaged in corrupt or illegal conduct…; (g) is ineligible or disqualified because of the operation of the Legislative Council Ordinance or any other law; (h) is a representative or a salaried functionary of the government of a place outside Hong Kong; (i) is a member of any national, regional or municipal legislature, assembly or council of any place outside Hong Kong…; (j) is an undischarged bankrupt…; (k) is found for the time being to be incapable, by reason of mental incapacity, of managing and administering his or her property and affairs..; (l) at a by-election, has resigned…. (paraphrasing from the Legislative Council ordinance)
     Disqualification of a legislative candidate should be based on objective and specific grounds mentioned in the above provision. Many of the abovementioned grounds are a matter of fact without any dispute like conviction of a crime or sentenced to imprisonment. It is nowhere in the law to disqualify a candidate by a returning officer based on political opinions or political affiliations. And independence movement or organizing activities to bring about independence is not listed as a ground of disqualification under the current law. 
     If there is any disqualification issue, it is argued that it is far better to be handled by a judge than a returning officer. A returning officer is entrusted with executive and administrative authority to carry out political decisions but without sufficient legal training to determine the legal qualifications of a potential candidate. A judge would be impartial and listen professionally to the submission on both sides. He or she would be in a better position to decide whether a candidate genuinely upholds the Basic Law and owes allegiance to HK and the PRC in accordance with the Oaths and Declarations Ordinance, the Basic Law and the recent SCNPC’s interpretation.[17] A judge can decide which side is more reliable and trustworthy in the process of examination and give weight on the evidence accordingly. It is undoubtedly true that this is a sensitive issue, it may be better done outside the judiciary, like through a commissioner (e.g. the Commissioner on Interception of Communications and Surveillance in Hong Kong) with a panel of retired judges established outside the judiciary to determine the legal qualifications (as opposed to political screening) of a candidate. 
     Nevertheless, it may be too premature to screen out all candidates at the nomination stage through the commissioner without opportunity being given to them to articulate their political aims, goals and aspirations and fully debate them in different election platforms so that voters would be able to judge whether they put forward a political cause which is in tune with the best interest of Hong Kong or not. Voters would also be able to judge whether the candidates genuinely uphold the Basic Law and owe allegiance to Hong Kong and China as a result of the whole election process and debate. As explained below, voters should, therefore, think twice before casting their votes as the elected legislators may be amenable to subsequent disqualifications, thus making the election process and their decision a futile one. For the candidates, they would be given a chance to demonstrate their competence and capability and be able to put forward an agenda that is in line with the best interest of Hong Kong in the long run.

Rights to vote and stand for election according to the HKBOR and ICCPR
It seems that Chow does not oppose strongly against the political screening on the part of the returning officer but the returning officer did screen out and disqualify her. In any event, I think she should be properly advised to challenge the disqualification made by the returning officer based on the Hong Kong Bills of Rights Ordinance and the International Covenant on Civil and Political Rights. Moreover, Chow would argue that she has fundamental rights to vote and stand for election in accordance with the HKBOR and the ICCPR. According to the Hong Kong Bills of Rights Ordinance[18], every permanent resident shall have the right and the opportunity, without any of the distinctions mentioned in article 1(1) and without unreasonable restrictions- (a) to take part in the conduct of public affairs, directly or through freely chosen representatives; (b) to vote and to be elected at genuine periodic elections which shall be by universal and equal suffrage and shall be held by secret ballot, guaranteeing the free expression of the will of the electors. 
    Chow would, therefore, argue that it is not consistent with the law that she has the right to participate in public election. In fact, as strongly put forward by all members of the legal subsector of the Election Committee, “disqualification of candidates with certain political opinion or affiliation frustrates the core purpose of an open and fair election, which is to guarantee the free expression of the will of the electors…”[19] Thus, it would be premature to screen out her candidature at the initial nomination stage by a government officer or better known as a returning officer. It is not international practice to screen out candidates at the nomination stage by an executive officer for political affiliation. It is instead the rule of man rather than the rule of law based on a well-entrenched system.[20] 
     According to the Legislative Council Ordinance and the Electoral Affairs Commission (Electoral Procedure) (Legislative Council) Regulation (the Regulation)[21], the returning officer must, as soon as practicable after receiving a nomination form, decide…whether or not a person is validly nominated as a candidate. It is nowhere in the law to empower a returning officer to judge whether a candidate is acting in line with the Basic Law, other legal requirements and pledge allegiance to Hong Kong and China.[22] Those questions can only be decided by a court of law. According to the press statement[23] issued by the Electoral Affairs Commission, “for questions as to whether the statutory nomination procedure has been duly completed, the Returning Officer will seek the advice of the Department of Justice as necessary and take appropriate action to ascertain whether or not the nomination of the candidate concerned has complied with the legal requirements.” Having said that, it does not change the statutory requirement that a returning officer is the only person to decide on the validity of the nomination of legislative candidates. It should be noted that even the Electoral Affairs Commission (EAC) attempted to distance itself from the returning officers by saying that “the decision on whether a nomination is valid or not is solely made by the Returning Officer having regard to requirements under the law. While the EAC would assist the Returning Officers to discharge their statutory duties, it does not have any statutory power and role to play with regard to the decision made by the Returning Officers.”[24] It thus only adds subjectivity to the nomination process. 

Rights to vote and stand for election are subjected to “reasonable restrictions” by an election petition
However, political rights, like other rights, are not absolute but may be restricted in accordance with the law. Thus, the Hong Kong Bills of Rights Ordinance states that it should not be done “without unreasonable restrictions.” According to the Legislative Council Ordinance[25], an election may be questioned only by election petition made on specified grounds:

(1)An election to return a Member may be questioned only on the following grounds—
(a) the ground that the person declared by the Returning Officer in accordance with regulations in force under the Electoral Affairs Commission Ordinance to have been elected as a Member at the election was not duly elected because—
(i) the person was ineligible to be, or was disqualified from being, a candidate at the election; or
(ii) corrupt or illegal conduct was engaged in by or in respect of that person at or in connection with the election; or
(iii) corrupt or illegal conduct was generally prevalent at or in connection with the election; or
(iv) material irregularity occurred in relation to the election, or to the polling or counting of votes at the election; or
(b) a ground specified in any other enactment that enables an election to be questioned.[26]
Leung and Yau’s case--The meaning of “upholding the Basic Law” and “bear allegiance” to Hong Kong and China
In some countries like Australia[27] and the United State of America[28], they have added some grounds in addition to the above one like treason, infamous crime or other criminal offences in order to disqualify the elected legislators and other public officers. In fact, the Chief Executive Election Ordinance of Hong Kong also provides the disqualification ground based on treason.[29] In the recent Leung and Yau’s case[30], the Court of Final Appeal rejected the non-intervention principle because of its constitutional duty and obligations to determine whether a legislator takes an oath solemnly and swears allegiance to Hong Kong and China in accordance with the law i.e. the Oaths and Declarations Ordinance, the Basic Law and the interpretation[31] made by the Standing Committee of the National People’s Congress. Moreover, the Court of Final Appeal confirmed that finding of fact by Au J of the Court of First Instances that they (i.e. Leung and Yau) “manifestly refused (and thus declined) to solemnly, sincerely, truly bind themselves to uphold the Basic Law or bear true allegiance to the Hong Kong Special Administrative Region of the People’s Republic of China….”[32] The courts came to this conclusion by referring to the oath-taking process that “each of them used the term ‘Hong Kong nation’ right at the outset of oath-taking” and each of them mispronounced the word ‘China’ consecutively for three times, as Geen-na or Sheen-na” and “each of them also intentionally unfolded and displayed a blue banner bearing the words ‘HONG KONG IS NOT CHINA”.[33] Thus, there is ample evidence to show that they were not taking an oath in a solemn manner and they refused to uphold the Basic Law and bear true allegiance to Hong Kong or more correctly, China. This case sheds light on the meaning of “upholding the Basic Law” and “bear allegiance” to Hong Kong and China. 
     Nevertheless, for future reference and application, “upholding the Basic Law” and “bearing allegiance” are not limited just to the oath-taking process. Legitimate questions would be asked such as what kinds of political activities have the elected legislator engaged in before, what political agenda has he or she has put forward, what election campaigns and strategies have he or she used and what are thepolitical party’s goals and manifesto and, last but not least, any change or departure in political platform since he or she became a politician? Furthermore, witnesses will be called, examined and cross-examined by both sides and relevant evidence and documentary evidence will be admitted to considering as in the case of a normal court proceeding and in accordance with the rule of procedure and evidence. Thus Au J said, “given the objective assessment, the court would look at the conducts, manner and words adopted by an oath taker in taking the Legislative Council’s Oath with a view to deciding what meaning those conducts, manner and words convey to a reasonable person and whether he or she intentionally acted in such a way.”[34] This objective exercise can be done through the examination of documentary and oral evidence to be admissible in a court of law.
     According to the SCNPC’s interpretation, an oath taker must take the oath sincerely and solemnly and must accurately, completely and solemnly read out the oath prescribed by law, the content of which includes “will uphold the Basic Law of the Hong Kong Special Administrative Region of the People’s Republic of China, bear allegiance to the Hong Kong Special Administrative Region of the People’s Republic of China”. It is thus argued that if an oath-taker engages in activities to achieve independence, he or she could not possibly owe allegiance to Hong Kong and China at the same time as independence means separating from China and denying Hong Kong is an inalienable part of China according to the Basic Law.[35] 

The disqualification of four legislators by the Hong Kong Court of First Instance (or CFI’s case)[36]
The Interpretation by the SCNPC has been applied in the CFI case by Au J to disqualify the four legislators based on the grounds of the Exact Form and Content Requirement (i.e. the oath taker must accurately and completely read out the oath as prescribed without any deletion or addition to the standard oath)[37], the Solemnity Requirement (i.e. the oath taker has to take the oath in a dignified and formal way and manner which is consistent with the important commitment of the oath taker to bind himself to bear true allegiance to Hong Kong and China) and the Substantive Belief Requirement (i.e. the oath taker must faithfully and genuinely commit and bind himself to uphold and abide by the obligations set out the in the Legislative Council’s Oath).[38] Counsel for the legislators argued that the oath-taking process is a ritual or a mere formality irrespective of his or her belief in the oath that has been taken. However, it is only after the oath-taking process that a member-elect can duly become a formal legislator. He or she is also making an oath in accordance with the Oaths and Declarations Ordinance which must be truthful, honest and solemn, failing which it is against the law. He or she is pledging to owe allegiance to Hong Kong and China. It could not just be a mere formality or a ritual that a member-elect is completely free to take an oath in whatever manner or format that he or she so prefers. If that is the case, there is no need to have the standard legislative council’s oath to be taken in accordance with the form and substance of the law before one can swear in as a legislator. 

The Spanish example: the Election Court to deal with the independence discourse
The above CFI case has already made it clear that support for an independence movement could not be regarded as upholding the Basic Law and swearing allegiance to Hong Kong and China. In the words of Au J, “someone who advocates and supports the independence of Hong Kong would obviously be regarded as not have a genuine and sincere intention to commit himself to those allegiances….”[39] Au J also emphasized that independence is not the only ground of disqualification and “it must be open to court to find the same when appropriate in other circumstances.”[40] Therefore, with or without an amended piece of legislation to deal with the independence issue, the court is prepared to allow independence movement as an objectionable ground for owing allegiance to Hong Kong and China. Thus, it is still better to deal with the independence discourse with an update of the law (like changing the procedural rule and local legislation) after a wide public consultation as to how Hong Kong should position in light of such a discourse. In any event, with or without the amended legislation, a legislative candidate is going to challenge the decision of the returning officer by filing an election petition anyway. Certainty of the law requires the law to be spelt out in a precise manner after considering it fully and consulting it widely. It is pertinent that Hong Kong should deal with this issue properly and internally. 
     If it is too premature to disqualify a candidate at the nomination stage by a returning officer based on the premise that there is an independence discourse that he or she fails to uphold the Basic Law, it would be better to follow the Spanish example of having an Election Court to deal with the matters. According to the Parliamentary Election Act in Spain,[41]

The election of a candidate as a Member of Parliament shall be declared to be void on an election petition on any of the following grounds which may be proved to the satisfaction of an Election Court, namely-
(a) that by reason of general bribery, general treating or general intimidation, or other misconduct or other circumstances, whether similar to those before enumerated or not, the majority of electors were or may have been prevented from electing the candidate whom they preferred;

(b) non-compliance with the provisions of this Act relating to elections, if it appears that the election was not conducted in accordance with the principles laid down in such provisions and that such non-compliance affected the result of the election;

(c) that a corrupt or illegal practice was committed in connection with the election by the candidate or with his knowledge and consent or by an election agent of the candidate or with the knowledge and consent of an election agent of the candidate;

(d) that the candidate was at the time of his election a person disqualified for election as a Member of Parliament.
     In Spain, an Election Court shall have the same powers, jurisdiction and authority as the Supreme Court at the trial of a civil cause without a jury, and shall be a court of record.[42] An Election Court may examine any witness so compelled to attend or any person in court…., such witness or person may be cross-examined by or on behalf of the petitioner and respondent, or either of them.[43] This is also in accordance with the Hong Kong Bill of Rights Ordinance[44] which provides that “…everyone shall be entitled to a fair and public hearing by a competent, independent and impartial tribunal established by law…” For a matter as important as qualifications of a legislator with the supporting voters behind, it could not be simply handled by a returning officer as an administrative matter to screen out the candidates at the nomination stage. Due court process and fair procedure should be provided to a legislative candidate before political rights are taken away from him or her as a matter of natural justice with reasonable restrictions. 

How should the new law be drafted and applied to cope with the independence discourse?
Any person with a vested interest (like the voters) can file a petition to the Election Court that the elected legislator is undue and illegal to be elected[45], for example, because he is convicted of any infamous crime, treason or engaged in any criminal activities to bring about independence—it depends on how one writes it into the law. As a matter of common law principle, the disqualifications grounds should be clearly stated in the law without any ambiguity. Certainty of the law requires the law on the statute book should be precise for reference to all without a tinge of doubt.[46] As argued before, there should be no political vetting or screening at the nomination stage. However, the Confirmation Form[47] as requested by the Electoral Affairs Commission should still be signed, declaring that a legislative candidate upholds the Basic Law and pledge allegiance to Hong Kong and China. This important declaration would be relevant information for the Election Court to consider if there is any election petition brought to their attention. If there is a conflict between the textual/literal approach grounded in the Confirmation Form and the perceived intention of a member-elect that he or she fails to pledge the required obligations, the court can only judge the mental intention by examining all available and admissible oral and documentary evidence like organizing independence activities and rallies in the public place, recruiting party’s members openly to organize the independent activities as a political party, etc. In this respect, the grounds[48] to be questioned by an election petition should be expanded to include engaging in criminal activities to bring about independence which is against the Basic Law[49] because Hong Kong is an inalienable part of China and is a local administrative region of China etc.

An independent and impartial Election Court should be set up to deal with the topical issues: a legal judgment instead of a political decision or screening
There should be a fundamental difference between people merely talking about the independence issue (as people treasure freedom of expression[50] in Hong Kong which is protected under the Basic Law and Hong Kong Bill of Rights Ordinance) and people using any means, violent acts or criminal activities to bring about and realize the goal of independence. As the independence discourse is bound to be sensitive, the Election Court should be composed of well-experienced and retired judges who are independent from the judiciary in order to relieve the overwhelming burden on the judiciary. It would enable the Election Court to analyse the issue and arrive at an impartial judgment based on legal judgement instead of political decision or screening.[51] As counsel acting for the members-elect in the CFI case argued there are a lot of political issues arising from adjudicating on whether a member-elect genuinely and solemnly takes the legislative oath or not.[52] It is one thing to have the court’s assurance that it would separate politics from legal judgement[53], it is quite another thing as a matter of public perception. In the words of Lam J, “it is for this very reason that the Chief Judge had to stop Mr. Yu when counsel at one stage unwittingly treaded beyond the proper scope of legal arguments by quoting from Socrates on abuse of democracy. It is important that we keep politics out of the judicial process.”[54] As there are a lot of politically sensitive issues to be considered in the process of adjudication, justice must be seen to be done in allowing an Election Court to deal with hot-button issues independently. 

Conclusion
At the conclusion of the trial of an election petition, the Election Court shall determine whether the Member of Parliament whose election or return is complained of was duly returned or elected, and whether the election was void, etc.[55] It should also be noted in the CFI case[56], Au J said that the court is the final arbiter in determining whether an oath taker has declined or omitted to take the Legislative Council’s Oath in failing to comply with the legal and constitutional requirements. It is suggested that the court should not only have the adjudicative power to determine the oath-taking process but an Election Court, which is independent from the judiciary, should also have the power to hear dispute about the disqualification of a member-elect arising from an election petition. Thus, through the Election Court, the court has the final adjudicative power to determine the qualification of the legislators as to whether they owe allegiance to Hong Kong and China as part of the institutional establishment. 

Notes
[1] In the United Kingdom, the Houses of Commons Disqualification Act 1975 provides that holders of certain offices like judges, civil servants, members of the armed forces, member of police forces, member of foreign legislatures etc. are disqualified from membership of the House of Commons. See Neil Parpworth, Constitutional and Administrative Law (Oxford University Press, 2010).
[2] Press statement issued by the HKSAR government on 27 January, 2018 which is available at https://www.info.gov.hk/gia/general/201801/27/P2018012700291.htm.
[3] Article 104 of the Basic law.
[4] For a discussion about the constitutional structure and set-up in Hong Kong, see Danny Gittings, Introduction to the Hong Kong Basic Law (HKU Press, 2016). For a discussion on the development of the Hong Kong constitutional history, see Albert Chen, “From Colony to Special Administrative Region: Hong Kong’s Constitutional Journey” in Raymond Wacks (ed.) The Future of the Law in Hong Kong (Oxford University Press, 1989).
[5] In some countries, they have objective standards to judge whether a legislative candidate pledges allegiance to a country like by taking an oath duly and surrendering foreign passports. In fact, according to the Basic Law, Hong Kong legislators should generally be permanent residents of Hong Kong without foreign passports. 
[6] Election Petition by Agnes Chow Ting (Constitutional and Administrative Law List No. 804 of 2018).
[7] TVB News program.
[8] Charles K. N. Lam and S. H. Goo, "Confucianism and its theoretical application to the corporate world in China" (2015)33(5) Company and Securities Law Journal 332.
[9] (2017) 47 HKLJ 1-15.
[10] Ibid, at p.4.
[11] Ibid, at p.15.
[12] For a discussion of different kinds of autonomy like formal and substantive autonomy, legalistic and informal autonomy, capacity and decision-making autonomy etc., see Albert Chen, “Some reflections on Hong Kong’s autonomy” (1994)24 HKLJ 173.
[13] Article 2 of the Hong Kong Basic Law.
[14] Albert Chen, “The relationship between the central government and the SAR”, Peter Wesley-Smith and Albert Chen (ed.) The Basic Law and Hong Kong’s Future (Singapore: Butterworths, 1988), p.109.
[15] According to Albert Chen, “the significant fact in this regard is that almost no member states of federal states or autonomous governments in unitary states exercise complete autonomous powers over all of the following crucial matters of government—finance and taxation, monetary affairs, the issue of currency, customs, entry and exit controls, external trade relations, basic areas of law such as criminal law, criminal procedure, civil law and civil procedure—whereas the SAR will exercise full autonomy over all these under the Joint Declaration.” Ibid. at p.115.
[16] Karl Popper, The Open Society and Its Enemies (Routledge, 2012).
[17] According to the Leung and Yau’s case, the Court of Final Appeal held that the need to take a legislative oath in a sincere and solemn manner is clearly laid down in the Oaths and Declarations Ordinance, with or without the interpretation of the Standing Committee of the National People’s Congress. But the said interpretation made it crystal clear that an oath taken should be in a particular format and manner with corresponding legal consequences. And the interpretation is also binding on the Hong Kong courts. See FAMV Nos. 7, 8, 9, 10 of 2017, para 30.
[18] Article 21 of the Hong Kong Bills of Rights Ordinance and Article 25 of the International Covenant on Civil and Political Rights. 
[19] Joint statement issued by all members of the legal subsector of the Election Committee which is available at https://www.facebook.com/148076955294303/posts/joint-statement-of-all-members-of-the-legal-subsector-of-the-election-committee1/1267576460011008/.
[20] See Dennis Kwok, Letter to Hong Kong, 28 October 2018.
[21] Section 42A of the Legislative Council Ordinance and section 16(3) of the Electoral Affairs Commission (Electoral Procedure) (Legislative Council) Regulation (the Regulation).
[22] Some barristers, like Warren Chan argued that it is very strange that even after a candidate signs the nomination form and the confirmation form, a returning officer still challenges whether he or she genuinely in his heart upholds the Basic Law.
[23] The press statement is available at https://www.info.gov.hk/gia/general/201607/19/P2016071900950.htm.
[24] Ibid.
[25] Article 61 of the Legislative Council Ordinance.
[26] See also Guidelines on Election-related Activities in respect of the Legislative Council Election, Chapter 6.
[27] See also section 13A of the Constitution Act 1902 of New South Wales of Australia. 
[28] Article I, section 6 and Article II, section 4 of the Constitution of the United States of America.
[29] Section 14 of the Chief Executive Election Ordinance.
[30] FAMV Nos. 7, 8, 9, 10 of 2017.
[31] It should be noted that the SCNPC’s interpretation is not based on the local legislation (i.e. Oaths and Declarations Ordinance) but is an interpretation based on Article 104 of the Basic Law which is within the limits of power of the SCNPC. 
[32] FAMV Nos. 7, 8, 9, 10 of 2017 at para 15 of the judgment.
[33] Ibid, at para 8 of the judgment.
[34] Constitutional and Administrative Law List no. 223 of 2016, The Court of First Instance, para 37.
[35] Article 1 of the Hong Kong Basic Law.
[36] Constitutional and Administrative Law List no. 223 of 2016, The Court of First Instance.
[37] The court has adopted a very stringent approach in disqualifying Yiu Chung Yim even though he may still pledge allegiance to Hong Kong and China with no intention to flout the requirements of the law but just fail to meet the exact oath’s words and form. Thus, Au J said “Compliance with the exact form of the oath is, therefore, a separate and distinct legal requirement for a valid oath taking.” It thus sets a very high standard for a member-elect to follow strict adherence to the form of the law without looking at the substance of it and intention behind goes against the rule of justice and equity. Ibid at para 216.
[38] Ibid, para 28-32.
[39] Constitutional and Administrative Law List no. 223 of 2016, The Court of First Instance, para 98.
[40] Ibid.
[41] Section 79 of the Parliamentary Elections Act.
[42] Section 80(3) of the Parliamentary Elections Act.
[43] Section 80(8) of the Parliamentary Elections Act.
[44] Article 10 of the Hong Kong Bill of Rights Ordinance.
[45] Section 81 of the Parliamentary Elections Act.
[46] See Lord Bingham, The Rule of Law (Penguin, 2011).
[47] The Electoral Affairs Commission issued a press statement saying that it is legal and constitutional to ask the candidates to sign a Confirmation Form in accordance with the content of the Basic Law. The press statement is available at https://www.info.gov.hk/gia/general/201607/19/P2016071900950.htm.
[48] Section 61(1) of the Legislative Council Ordinance.
[49] Article 1 and 12 of the Hong Kong Basic Law.
[50] According to Ronny Tong, while it may be fine to talk about the independence issue based on freedom of expression, it is problematic to form a political party to achieve independence through party’s means according to the Societies Ordinance. See Straight Talk, TVB on 31 July 2018. In addition, according to Article 16 of the Hong Kong Bill of Rights Ordinance, “…everyone shall have the right to freedom of expression…it may therefore be subject to certain restrictions but these shall only be such as are provided by law and are necessary—… (b) for the protection of national security…” Thus, arguably, as there is no local legislative enactment of Article 23 of the Basic Law up to the present moment, Hong Kong people should enjoy freedom of expression to a large extent except it is regulated by the law of slander and libel, etc. Having said that, the independence discourse should be one of the subject matters under the legislative scrutiny of the law of national security. 
[51] Similarly, Au J said, “it is solely a question of law whether an oath taken is compliant with the requirements prescribed by the constitution and the relevant statutes. The question of legal compliance is and should not be political one.” Constitutional and Administrative Law List no. 223 of 2016, The Court of First Instance, para 55.
[52] Constitutional and Administrative Law List no. 223 of 2016, The Court of First Instance, para 54.
[53] Ibid, at 55-57.
[54] Hong Kong Court of Appeal Civil Appeal No. 224 of 2016, para 68.
[55] Section 85 of the Parliamentary Elections Act.
[56] Constitutional and Administrative Law List no. 223 of 2016, The Court of First Instance.

Richard Cullen on a Conspicuous Innovation in Chinese Jurisprudence: the Advisory Interpretation (IPP Review)

28 May 2019 
China is appropriately described as a One Party State (OPS). It is an authoritarian rather than a pluralistic state. The Communist Party of China (CPC) is the ruling party and it has retained this position for almost 70 years since the founding of the People’s Republic of China (PRC) on October 1, 1949. Given that the CPC has superintended the greatest poverty relief project the world has ever seen over the last 40 years — some 740 million lifted from abject poverty, making up 70 percent of total global poverty reduction — it is fair to say, also, this is the most successful OPS ever.
     China may not accept the doctrine of Separation of Powers distinctively elaborated by Montesquieu (which dates back to Aristotle conceptually) but it still has one of the largest judicial systems in the world, according to a 2016 International Bar Association report.
     The National People’s Congress is the PRC parliament. At the top of China’s political-legal hierarchy lies the Standing Committee of the National People’s Congress (SCNPC). The SCNPC is both a legislative body and arguably, the supreme judicial institution in China (there is some resonance here with the way in which the House of Lords in England used to function for many years until the establishment of the United Kingdom Supreme Court (UKSC) on October 1, 2009)... Click here to read the full text. 

Friday, August 16, 2019

HKU Law First Runner-up in the HSF International Competition Law Moot 2019

Continuing the proud tradition of HKU’s prior achievements in competition law mooting, the HKU team placed First Runner-up in the Herbert Smith Freehills Competition Law Moot 2019, which was held in King’s College London from 13 to 15 June 2019. The team consisted of four students: Ferrida Chan (PCLL), Matthew Chung (LLB 4), Rafael Pang (BBA(Law) & LLB 3) and Cherry Ng (BSc(G&L) & LLB 3). Rafael and Matthew also earned special commendation for their excellent advocacy skills, being the top 5 speakers in the preliminary rounds. 
   The team’s journey began in November 2018, where all four speakers were selected after a rigorous selection process. The team ranked third in its written pleadings and advanced to the oral rounds in London together with 11 other teams. Prior to travelling, the team underwent multiple practice moots to further improve their advocacy skills. Special thanks go to various practitioners and past mooters including Sunny Chan, Tinny Chan, Tommy Cheung, Byron Chiu, Peter Dong, Brian Fan, Joshua Kanjanapas, Martin Lau, Grace Lee, Euchine Ng, Michael Ng, Sakinah Sat, Howard Wong and Tiffany Wu for their invaluable assistance and feedback. 
   Most importantly, thanks must be given to the team coaches, including Thomas Cheng, Kelvin Kwok and Allison Wong for their unending support and guidance throughout the competition.

Thursday, August 15, 2019

New Book: Law and New Media: West of Everything (Edinburgh University Press)

Law and New Media: West of Everything
Edited by Christian Delage, Peter Goodrich, Marco Wan
Edinburgh University Press
May 2019, 280 pp.
Description: In this volume, international specialists from new and established domains of law, media, film and virtual studies address the emergence of the jurist in the era of digital transmission. Examining the jurisprudence of new visual technologies – from the cinema of the early twentieth century to the social media of our own time – this volume explores the multiple intersections of these visual technologies and the law from the theoretical insight they generate to the nature of law to the impact they have on doctrinal development.
     Part One tracks the media, the technologies and apparatuses of modern law. It looks specifically at the acoustics of architecture, emblematic texts, films of trials, the prohibition of cameras in courtrooms and the rules of contempt, televised reporting of law, and the multiple fora and chat rooms of Facebook, vblogs, #hashtag law and the mobile-optimised web. Part Two examines the jurisprudential questions raised by new visual and virtual reality technologies of the 21st century. Will social media lead to social law? The force of legal remediation? Virtual courts and online judges? Paperless trials? Electronic discovery? All of these developments impact how we conceive of the practice of law.

Key Features
  • Includes an international range of contributions and coverage, from the United States and Europe to the Middle East and China
  • Presents a firm historical foundation for considering the connections between law and new forms of media
  • Includes a range of contributions from established scholars and promising new voices in the field
  • Examines a wide range of new media, from online platforms to virtual reality.
Contributors
Michele Castaneda, Brown University; Emanuele Coccia, EHSS Paris; Christian Delage, Université Paris 8 & Director of IHTP; Claire Demoulin, Université Paris 8 & IHTP; Daniela Gandorfer, Princeton University; Peter Goodrich, Cardozo Law and NYU Abu Dhabi; Thibaud Guichard, Université Paris 8; Christopher Hutton, University of Hong Kong; William MacNeil, Southern Cross University; Antoine Rocipon, Université Paris 8 & IHTP; Raja Sakrani, University of Bonn; Laurent de Sutter, University of Brussels; Marco Wan, University of Hong Kong

Wednesday, August 14, 2019

The Indomitable Yash Pal Ghai (Five-Part Story in The Elephant)

The Indomitable Yash Pal Ghai

The Elephant
June 2019

The Indomitable Yash Pal Ghai – Part 1: The Father of the Constitution
June 27, 2019
On an otherwise ordinary Nairobi day in 2016, Yash Pal Ghai stood in a hallway of the Supreme Court of Kenya, waiting to have lunch with his former student and friend, Chief Justice Willy Mutunga. Ghai, carrying his usual striped cloth bag, its worn strap tied in a knot and its edges frayed, waited patiently, his unassuming nature belying his reputation as one of the world’s foremost experts in constitutional law. Click here to read the full text. 

Source: The Elephant
The Indomitable Yash Pal Ghai – Part 2: Years of Exile
June 27, 2019
Professor Yash Pal Ghai had accepted the offer of a deanship at the University of Nairobi, packed up everything ready to leave Dar es Salaam, and was saying his goodbyes when he got a call from his former student Willy Mutunga. “So Willy said to me, ‘I hope you aren’t coming to Nairobi.’ And I said, ‘I am taking up the deanship at the University of Nairobi.’ He said, ‘I can’t say much now, but don’t come. I can’t talk now, but don’t come until we tell you.’ He was ringing from the AG’s office, where he worked. I didn’t know why they were saying that. But then the University of Nairobi rang me two days later and said they were sorry but my appointment was canceled. I said, ‘You spent hours and hours persuading me, even when you knew how happy I was. I agreed because of your pressure. Why has it been cancelled?’ They said that they couldn’t tell me.” Click here to read the full text. 

The Indomitable Yash Pal Ghai – Part 3: The Hong Kong Experience
June 27, 2019
In 1989, after 11 years at the University of Warwick in the United Kingdom, Ghai applied to a new opening at the University of Hong Kong, which was interested in hiring a professor who could work on the island’s impending change of sovereignty. Ghai was interested and felt it would give him a chance to broaden the scope of his work and expertise. When the Tiananmen Square massacre occurred on the eve of his interview, however, Ghai – appalled at the Chinese government’s violent attacks on pro-democracy protesters – considered backing out. He recalls, “But then everyone said, ‘This is exactly why you must go.’ So I went.” Tiananmen Square reminded him, however, of what he would be faced with as he took on the challenge of analysing and assessing the nature of what would be a new relationship between China and Hong Kong. Click here to read full text. 

The Indomitable Yash Pal Ghai – Part 4: The Defender of Justice
June 28, 2019
Over the course of his career, Professor Yash Pal Ghai has had the opportunity to act as a visiting professor in a number of countries, teaching law across Australia, the United Kingdom, the United States, India, Singapore, South Africa, Canada, Fiji, and Italy. It was during one such visiting appointment in 2000, at the University of Wisconsin, Madison, that Ghai received one of the most important calls of his career. Click here to the full text. 

The Indomitable Yash Pal Ghai – Part 5: Being Kenyan in Kenya
June 28, 2019
Ghai returned to Kenya in 2008, “with no expectations” of getting involved in constitutional work again. “We wanted to rest,” he says, remembering the decision that he and Cottrell Ghai took to settle in Nairobi. “We felt we were getting old.” Despite what he may have envisioned as a quiet life, however, the Ghais are never far from the limelight. Manji describes the Ghais’ life: “For all their living in Muthaiga in a nice house, all they do is work — and work and work and work.” Click here to read the full text. 

Tuesday, August 13, 2019

Eric Ip and Po Jen Yap on Substantive Review of Administrative Discretion in Hong Kong: Divergence between Judicial Rhetoric and Practice (Chinese J Comp L)

"Substantive Review of Administrative Discretion in Hong Kong: Divergence between Judicial Rhetoric and Practice"
12 May 2019, Vol.7(1), pp.190-211 
Abstract: The rise of the regulatory state, compounded by political polarization, in the Hong Kong Special Administrative Region of the People’s Republic of China has opened up opportunities for its common law courts to substantively review the lawfulness of an array of governmental actions. Through the development of doctrines on reasonableness review and substantive legitimate expectation, the Hong Kong judiciary has sought to assert its relevance by nudging, incentivizing, and, at times, compelling the local government to deliberate and reason carefully before the latter implements decisions that restrict the citizenry’s rights and interests. Nevertheless, the courts have consistently under-enforced these doctrines in actual cases, affirming the lawfulness of administrative acts in the vast majority of substantive review cases that come before them. The hallmark of Hong Kong’s autochthonous administrative law, a legal transplant sourced from England, but indigenized and grown in Chinese soil, is thus characterized by liberal rhetoric paired with limited judicial intervention in practice.

Johannes Chan Podcast on The Rule of Law in Hong Kong (Part One) (UPenn)

The Rule of Law in Hong Kong (Part One)
Johannes Chan
Podcast, Episode 20
Center for the Study of Contemporary China, 
University of Pennsylvania School of Arts and Sciences
15 June 2019
Description: Dramatic protests in Hong Kong this month, over a draft law that would permit extraditions to mainland China, underscore broader fears amongst Hong Kong residents that their city is losing its distinctive legal and political characteristics, that were supposedly to be preserved under Chinese rule, according to the principle of “One Country, Two Systems”. A critical juncture in Hong Kong’s fascinating history appears to be fast approaching, with ramifications extending far beyond the city itself. In this special two-part episode, Neysun Mahboubi discusses with Hong Kong University law professor, and former dean, Johannes Chan the development of Hong Kong’s hybrid legal system, before and after the British handover of Hong Kong to China in 1997, and the challenges now before it. The episode was recorded on April 6-7, 2019.  Click here to listent to the podcast.

Monday, August 12, 2019

Elizabeth Lui (CCPL) and Samuel Chan on "Lost in Translation: The Hong Kong Government’s Dual Messaging Amid Protests" (The Diplomat)

Elizabeth Lui (CCPL) and Kai Yui Samuel Chan
1 August 2019
Hong Kong’s Chief Executive Carrie Lam announced in a press conference on July 9 that the controversial extradition bill was “dead.” The majority of foreign press characterized the pronouncement as Lam’s “most emphatic promise yet.” Those sympathetic to the cause of Hong Kong activists were quick to celebrate their victory over the government. There were, however, no celebratory events among Hong Kong activists themselves; instead, they expressed anger and deep frustration with Lam’s statement.
     Why weren’t Hong Kong activists satisfied?  The devil, as always, is in the details. The core demand of the anti-extradition bill activists has remained consistent: nothing short of a “withdrawal” of the extradition bill. ... Click here to read full text. 

New CCPL Report on Same Sex Couples' Unequal Access to Public Housing in Hong Kong

CCPL research finds that due to the discriminatory nature of the public housing policy, same-sex couples (LGB individuals) are subjected to an economic penalty of HKD233,539. Findings of the study also suggest that the impugned policy is counter-productive to distributing public housing fairly and efficiently.
      The data analysis in this report demonstrates that low-income same-sex couples suffer an economic penalty as a result of their LGB identities. Owing to the fact that their relationships are not legally recognized for the purpose of applying for public housing as families, they are subjected to a longer waiting time of 12 years, during which they have to pay an extra HKD233,539 for private rental accommodation, when compared to their heterosexual counterparts. This report estimates that at least 2,772 LGB persons are adversely affected by the current policy. It is important to note that such a discriminatory policy does not only deny non-heterosexual couples’ equal access to housing benefits but is also detrimental to economical and effective distribution of subsidized housing, adversely affecting the Hong Kong public in general and public residential housing applicants in particular. To download the full report by Elizabeth Lui, click here.

Sunday, August 11, 2019

New Book: Special Needs Financial Planning: A Comparative Perspective (Cambridge University Press)

Special Needs Financial Planning: A Comparative Perspective
Edited by Lusina Ho & Rebecca Lee
June 2019, Cambridge University Press, 368 pp
Description: Countries around the world are facing pressing needs to enhance financial planning mechanisms for individuals with cognitive impairment. The book provides the first comparative study of the three most common of such mechanisms in Asia and the West, namely guardianship, enduring/lasting powers of attorney, and special needs trusts. It involves not only scholarly overviews of the mechanisms in the jurisdictions studied, but also thorough, structured and critical reviews of their operational experiences. This book will have broad appeal to scholars, students, law and policy makers and practitioners in the fields of mental disability, healthcare and elder law. It is widely recognised in the field that books like this one are needed. This book will also be of interest to undergraduate and graduate students in mental health, disability law and elder law.

New Issue of Asia-Pacific Journal of Human Rights and the Law (Issue 1, June 2019)

Editors-in-Chief: Simon NM Young and Kelley Loper
Publisher: Brill, Leiden
Table of Contents

Saturday, August 10, 2019

Hualing Fu on Mass Disputes and China’s Legal System (new book chapter)

"Mass disputes and China’s legal system"
Hualing Fu
in Teresa Wright (ed.), Handbook of Protest and Resistance in China (Elgar 2019) 75-90
Abstract: Since the late 1970s, China’s legal system has evolved via a process of juridification in which legal norms, institutions and actors have been expanding and playing a more meaningful role in creating social, economic and political regulations. However, abiding hallmarks of this system have been the limited space for legal advocacy and constraints on socio-legal mobilization. Through the prism of mass disputes, this chapter analyzes three phases in the development of China’s socialist, authoritarian legal system from the 1990s to 2018, shaped by alternating waves of political liberalization and repression: (1) a brief period of promoting individual rights to underpin economic reforms in the legalistic phase of the 1990s; (2) during the Hu-Wen administration an emphasis on stability and an effort to atomize mass disputes; and (3) a statist approach permitting the articulation of limited grievances through the procuratorate’s selective initiation of Public Interest Litigation in the spheres of environmental and consumer law. The chapter concludes that, notwithstanding some success in defusing mass grievances, the capacity of China’s authoritarian legal system to resolve collective disputes is fundamentally undermined by the weakness of civil society and a lingering suspicion of NGOs.

Hualing Fu on Lawyers for Human Rights Protection: from Legal Aid to Political Lawyering (new book chapter)

"Lawyers for human rights protection: from legal aid to political lawyering"
Fu Hualing
in Sarah Biddulph and Joshua Rosenzweig (eds), Handbook on Human Rights in China (Elgar 2019) 472-492
Abstract: Since its restoration, the legal profession has played an indispensable role in China’s human rights protection. Together with journalists and NGO leaders, lawyers serve as the guardian of human rights in China, and this trinity of forces intimates a strong possibility for the development of human rights in authoritarian regimes. The purpose of this chapter is to identify three distinct types of legal advocacy for human rights in China, explore their internal dynamics, and examine their respective contributions to enhancing human rights protection and the corresponding limits. Theoretically this chapter also aims to explore a possible evolutionary trajectory of human rights lawyering in the authoritarian context which posits three stages, namely the provision of legal aid services for the poor; which is followed by public interest legal advocacy to facilitate structural changes; and finally political lawyering to catalyze potential systemic reforms.

Friday, August 9, 2019

Public Consultation on Proposals to Enhance Animal Welfare in Hong Kong (Whitfort Submission)

In 2010, Associate Professor Amanda Whitfort and Dr Fiona Woodhouse Deputy Director (Welfare) of the SPCA (Hong Kong) published the Review of Animal Welfare Legislation in Hong Kong. Their review, the major output of a Public Policy Research Grant, identified serious shortcomings in the legislation protecting animals in Hong Kong. The Hong Kong government has recently released a Consultation Document taking up many of the recommendations proposed in the Whitfort Woodhouse 2010 Review. In particular, the Hong Kong government is proposing to amend the Prevention of Cruelty to Animals Ordinance (Cap 169) to introduce a duty of care for animals to compliment the current anti-cruelty prohibition. Amending Cap 169 in this way was the primary recommendation that came out of the Review of Animal Welfare Legislation in Hong Kong. The amendment would provide that a person commits an offence if he does not take such steps, as are reasonable, in all the circumstances, to ensure that the needs of the animal, for which he is responsible, are met, to the extent required by good practice. 
      Whitfort has long argued that the necessity for a duty of care for all animals in Hong Kong is clear. As section 3 currently appears in Cap 169, an animal must actually suffer before an offence has been committed. Only then can any action be taken to protect the animal. This means that in cases of neglect, authorities currently have to wait until evidence of suffering is legally actionable before the animal can be, in any way, protected. Accordingly, the current law in Hong Kong does not allow for enforcement authorities to take any action at all to prevent the impending suffering of animals, despite the fact that their care is obviously inadequate. As a result, many welfare abuses go un-prosecuted. Such a situation is clearly unsatisfactory. As Whitfort's comparative studies with other jurisdictions have shown, modern animal welfare laws do not just prosecute cruelty, they actively prevent it. 
      Along with the proposal to amend Cap 169 to introduce a duty of care, the government also seeks public views on increasing the penalties for cruelty to animals, making serious cases of animal cruelty triable in the District Court as indictable offences and allowing judges to disqualify animal abusers from owning or working with animals. In response, Whitfort has made a submission to the LegCo Panel on Food Safety and Environmental Hygiene supporting these changes.
     The consultation document outlining the proposed amendments to Cap 169 is available on the government website, Proposals to Enhance Animal Welfare.  The consultation ended on 31 July 2019.

RGC Awards $4.6 Million in Research Funding to HKU Law 2019/20

Congratulations to our 8 colleagues who were successful in the 2019-2020 round of research grant funding by Hong Kong's Research Grants Council (RGC).  For the first time, two colleagues (Johannes Chan and Frank He) were successful in obtaining the Humanities and Social Sciences Prestigious Fellowship (HSSPF), which provides recipients with the time and funding to pursue research in place of teaching and administrative duties over the course of 12 months.  Five General Research Fund (GRF) projects were funded to study money laundering offending in Hong Kong, law reform implications of disruptive technologies for finance, enforcement of the arbitral awards under the Belt and Road Initiative, elites and judicial power in the age of populism, and the establishment of British admiralty law in Hong Kong 1861 to 1943.  An Early Career Scheme (ECS) project was funded to study political community and the legal status of established states.  The details of the new funded projects are as follows:

HSSPF
GRF
ECS

Thursday, August 8, 2019

Yahong Li on the Current Dilemma and Future of Software Patenting (Int'l Rev IP & Competition L)

"The Current Dilemma and Future of Software Patenting"
Yahong Li
IIC - International Review of Intellectual Property and Competition Law
July 2019, published online
Abstract: The unprecedented division over patent eligibility based on the ‘‘abstract idea’’ construct among the courts and judges in the Alice v. CLS case, the post-Alice contradictory decisions and the trend of rejecting or invalidating software patents, as well as the uncertainty about the concept of ‘‘computer program as such’’ (or ‘‘per se’’) in Europe and China, present a chaotic reality and serious dilemma as to the future direction of the software patenting regime around the world. The recent revisions to patent examination guidelines by the patent offices in the US, Europe and China, particularly the ‘‘grouping’’ of ‘‘abstract ideas’’ by the USPTO, providing examples of a ‘‘further technical effect’’ by the EPO, and distinguishing a‘‘computer program per se’’ and ‘‘computer-implemented inventions’’ by the CNIPA, although helpful in patent examinations, cannot solve the root problem and fix the dilemma. A more general definition, or a ‘‘safe harbour’’, for the ‘‘abstract idea’’ or computer program ‘‘as such’’ is needed. In addition, to prevent patent troll sand promote true software innovation, the scope and length of software patent protection should be limited, e.g. allowing only the means of implementation but not the function to be patented; and granting 10 years of utility-model-type or sui generis protection. All the above proposed reforms should be undertaken at the international level, e.g. by adopting a Software Treaty under the auspices of the WIPO, because the software patent dilemma is a global one that deserves an international solution, especially in the age of the internet where most of the soft-ware patents cover borderless internet technologies.