Thursday, August 5, 2021

Elaine Yim (MPhil 2021) on A Buck-Passing Account of ‘Moral Equality’ (Res Publica)

"A Buck-Passing Account of ‘Moral Equality’"
Elaine Yim (MPhil 2021) 
Res Publica , Volume 27, pp. 25–40
Published in 2021
Abstract: The belief that all human beings are ‘moral equals’ is widespread within the canon of Western liberal philosophy. However, it is unclear precisely what ‘moral equality’ or its associate terms mean, what grounds our ‘moral equality’ and what the implications of being ‘moral equals’ are. In this paper, I distinguish between three ways of understanding ‘moral equality’: the ‘buck-passing’, ‘explanatory’ and ‘reverse-explanatory’ accounts. The buck-passing account of moral equality is in parallel with Scanlon’s buck-passing account of value. It holds that ‘moral equality’ is not a metaphysically fundamental concept and simply amounts to having other properties shared equally by all human beings that constitute the reasons for why we ought to treat all human beings equally in certain respects. The explanatory account understands the concept of ‘moral equality’ as metaphysically fundamental and explanatory of why human beings who are the same in certain respects have the same entitlement to x. The reverse-explanatory account also sees ‘moral equality’ as metaphysically fundamental but holds that the explanatory relationship goes the other way round: moral equality is explained by how we ought to act. I argue that the buck-passing account is a more accurate way of understanding moral equality.

Elaine Yim (MPhil 2021) on "Why Compatriot Partiality Arguments Cannot Support Extensive Immigration Control" (Journal of Social Philosophy)

"Why Compatriot Partiality Arguments Cannot Support Extensive Immigration Control"
Elaine Yim (MPhil 2021)
Journal of Social Philosophy
Published on 13 July 2020
Introduction: Immigration restrictions are common and extensive: almost all states enact their own immigration policies to decide who to admit. Unless constrained by international covenants or transnational agreements, immigration policies are typically based on what state legislators or their delegates perceive to be in the interests of the state and its citizens, with little regard to that of potential immigrants. However, immigration restrictions limit freedoms that protect important interests, including freedom of movement, freedom of association, freedom of occupational choice, and so on. They prevent people from choosing their preferred place of residence, taking up jobs of their own preference, and so on. If restrictions to freedoms that protect important interests require sufficient justification, then the current practices of immigration control ought to be sufficiently justified.

Wednesday, August 4, 2021

Syren Johnstone on Crypto-assets and Disintermediation in Finance: A View from Asia (new book chapter)

“Crypto-assets and disintermediation in finance: A view from Asia”
Syren Johnstone
in E. Kaili and D. Psarrakis (eds.) Disintermediation Economics:The Impact of Blockchain on Markets and Policies (Palgrave Macmillan, 2021), Chapter 10, pp. 215-245
Abstract: The response in Asia to the emergence of crypto-assets has varied enormously intra-regionally due to variances not only in legal systems and regulatory preoccupations but also in cultural values, political ideologies, economic and social development, and the maturation of financial systems. After a review of the Asian narrative in Section 1, the current status of regulation in Asia is summarized in Section 2. Sections 3 and 4 address the hurdles to ecosystem development and questions whether regulatory incrementalism is sustainable. The final Section 5 provides suggestions for policy development.

Tuesday, August 3, 2021

Zhang Xianchu on Bankruptcy Law in China (new book chapter)

"Bankruptcy Law in China"
Zhang Xianchu
in Company Law in Hong Kong: Insolvency 2021 ed. by Stefan Lo (Bloomsbury, December 2020), Chapter 14
Description: 
Company Law in Hong Kong: Insolvency by Stefan Lo.
Annual update to the application of particular areas under the Companies Ordinance (Cap.622) and Companies (Winding-Up and Miscellaneous Provisions) Ordinance (Cap.32)
New General Editor – Stefan HC Lo, member of the Company Law Re-write Team
2021 edition examines important changes under the following chapters:

Chapter 1 – Directors
Chapter 2 – Role and Status of Liquidators
Chapter 3 – Provisional Liquidation
Chapter 4 – Winding Up by the Court
Chapter 5 – Members’ Voluntary Winding Up
Chapter 6 – Investigations, Assets, Claims, and Realizations
Chapter 7 – Creditors in Winding Up
Chapter 8 – Schemes of Arrangement
Chapter 9 – Setting Aside of preferences and Trading Issues
Chapter 10 – Liquidation Costs
Chapter 11 – Receivership
Chapter 12 – Cross Border Issues
Chapter 13 – Corporate Rescue
Chapter 14 – Bankruptcy Law in China


Introduction of Chapter 14 - Bankruptcy Law in China:
Unlike Hong Kong, Mainland China as a socialist country practiced the so-called planned economy for three decades in which all economic activities of the country were controlled by the government with state-owned enterprises (SOEs) as the dominant business entities. Such condition was not changed until the historical economic reform and the open-door policy were implemented in 1978. Since 1978 China has been transformed into a "socialist market economy” with the 1993 Constitutional Amendment to codify the reorientation and accession to the World Trade Organization (WTO) in 2001 as two primary milestones. For 40 years, China has been a hot place to attract foreign investments and in 2012 China surpassed Japan to become the second largest economy in the world. Although the Communist Party and the political ideology still play a crucial role and cause uncertainties, the market force is increasingly taking the course of the national development. After the new leadership took their office in 2012, an explicit pledge was made in the Decision of the Central Committee of the Communist Party of China (CPC) on Certain Major Issues Concerning Comprehensively Deepening Reforms to let the market to play a decisive role in resource allocation, including further improvement of enterprise bankruptcy regime. 

In the course of dynamic market growth, the legal infrastructure has also developed rapidly. Although the short period of development has not allowed its legal framework to reach a very comprehensive and sophisticated stage, to a large extent China has made significant progress in modernising its entire legal system. In October 2011, the Chinese Government declared that a new socialist legal system with Chinese characteristics had been established, which then included the Constitution, 240 laws, 706 administrative regulations and 8,600 local provisions at that time. 

Against this background it may be useful to briefly highlight the legal sources and their main feature before embark to examine bankruptcy laws and regulations in detail. Legislative activities in China are governed by the People’s Republic of China Constitution (PRC Constitution), as amended in 2004 and the People’s Republic of China Legislation Law of 2000 (PRC Legislation Law), as amended in 2015, which classifies the legal resources into four categories with the Constitution as the supreme law of the country.  Under the Constitution, the National People’s Congress (NPC) acts as the primary legislative organ of the country. It has the power to enact and amend basic laws (基本法律) such as the Criminal Law and the General Principles of Civil Law as well as the Hong Kong Basic Law.  Its Standing Committee as the executive organ of the NPC also possesses law-making powers to pass and amend laws, provided that those matters are not reserved to the NPC.  When the NPC is not in session, the Standing Committee also has power to pass supplements and amendments to laws enacted by the NPC provided that such legislation is consistent with the basic principles of the relevant laws.

The Constitution and the Legislation Law also empower the State Council as the central government to enact administrative regulations (行政法規) in accordance with the Constitution and the national laws.  Where the NPC or its Standing Committee has not enacted any laws, the State Council may be delegated the power to enact administrative regulations on such matters first.  In practice, administrative regulations may be issued in different forms, such as measures, notices and provisions. Given the nature of the so-called socialist market economy, the central government may also from time to time issue its policies, which may have significant impacts in the market.

Below the central legislative bodies noted above, the Constitution also empowers the people’s congresses and governments of the provinces, major cities and the special economic zones to enact local regulations (地方性法規), provided that such regulations do not contravene the Constitution and the national laws and administrative regulations promulgated by the NPC, its Standing Committee and the State Council.  The Constitution also delegates to the people’s congresses of national autonomous regions the power to enact autonomy regulations (自治條例) and specific provisions (單行條例).  Moreover, all the ministries, state commissions, the People’s Bank and other state administrations directly under the State Council may also have powers to promulgate administrative provisions for matters within their own jurisdiction. 

In order to prevent, and deal with, conflict of legal rules adopted by different central and local authorities, the Legislation Law sets out some governing principles and procedures. For example, all the enactments should be filed with the Standing Committee of the NPC for record  rules with a higher legal status shall prevail over lower level rules in cases of conflict; and the Standing Committee of the NPC and the State Council may have the authority to make ruling on legal conflicts concerned  and even annual the lower level provisions. 

Unlike common law systems, the judiciary in China does not have power to interpret the law except the Supreme People’s Court (SPC). As such, the SPC has developed a practice to issue judicial circulars as binding legal authority to guide case handlings of the lower courts. The SPC promulgated the Provisions Concerning Judicial Interpretations (司法解釋) on 23 March 2007 (2007 SPC Provisions). Article 5 of these 2007 SPC Provisions Concerning Judicial Interpretations explicitly stipulates that judicial interpretations adopted by the SPC shall have the effect of the law, which may be in forms of interpretations, provisions, replies and decisions of the SPC. In addition, the SPC in recent years has promoted guiding cases practice as part of its efforts to streamline the local practice and deal to with issues and concerns newly raised. According to the Provisions Concerning Case Guidance (案例指導) of the SPC dated 26 November 2010 (2010 SPC Provisions), the local People’s Courts are required to make reference to the guiding cases selected by the SPC from the judicial decisions when dealing with the similar cases. By July 2018, the SPC had issued 96 guiding cases (指導性案例) in 18 batches. Although thus far no guiding case on bankruptcy as such has been issued, some may have implications on liquidation and bankruptcy practice. For instance, in the Guiding Case No 9 where shareholders failed to carry out liquidation in a timely manner after the company’s business license was revoked by the state administration, the First Intermediate People’s Court of Shanghai by affirming the lower court decision held the two individual shareholders liable jointly with the company for the unpaid debts due to loss of the account books and assets of the company, although they argued that they were not in a position to control the company affairs. The court pointed out that regardless of the percentage of their equity holdings and involvement in the company’s affairs, it is shareholders’ legal duty to liquidate their company within the statutory period after the business license of their company was revoked.  The SPC also published the 10 illustrative cases of enterprise bankruptcy and liquidation in 2016 and 2018, respectively, as a new practice to promote judicial practice in this area. Some local People’s Court has begun to follow this practice by publishing leading bankruptcy and reorganisation cases of their own jurisdictions.

Besides various enactments as legal resources, the judicial policy has also played an important role in legal practice. For instance, during the worldwide financial crisis, the SPC promulgated a series of policies in order to stabilise the economic conditions of the country and avoid massive bankruptcy of enterprises, such as the SPC’s Opinions on Certain Issues Concerning Correctly Handling Enterprises Bankruptcy Cases to Provide Market Economic Order with Judicial Protection on 12 June 2009 (2009 Opinions). According to the 2009 Opinions, the People’s Courts should actively coordinate with the government and the Communist Party to deal with various problems in the crisis period for maintaining social stability and to sensibly apply the bankruptcy rules. Even some enterprises were already insolvent and apparently lack of capacity of repaying their debts, the People’s Courts were required to take active rescue measures to avoid bankruptcy as long as these firms were in line with the national industrial policy with prospects. 

The latest policy in this regard was promulgated in the Principal Notes of the National Judicial Conference on Bankruptcy Trials of the SPC on 4 March 2018 (Principal Notes of 2018), which set out the direction for professional development, improvement of the administrator system, streamlining bankruptcy and reorganisation practice, enhancement of judicial enforcement and transparency and better cross-border insolvency handling. 

Monday, August 2, 2021

Eric Ip on The Political Determinants of China’s New Health Constitution (Medical Law Review)

"The Political Determinants of China’s New Health Constitution"
Eric Ip
Medical Law Review
Published on 13 March 2021
Abstract: The Basic Healthcare and Health Promotion Law 2019 became the new constitution of China’s health system in June 2020, giving legal effect to ambitious health reform programmes like Healthy China 2030. The concurrent outbreak of coronavirus disease 2019 must not distract us from appreciating the fact that this Law will comprehensively overhaul the health regulatory framework of the world’s most populous country during the coming decade, if not beyond. This article offers an original evaluation of the Law in its political context. The Law commendably promises to safeguard the right to health, assist citizens to live a ‘complete cycle of life’, and promote health using the resources of the public health system. However, it is also deeply politicised, guaranteeing extensive and penetrative political control in health campaigns, digitalised health data, the governance of health institutions, and the resolution of medical disputes. This can be explained by the consequential roles played by epidemics in China’s historical dynastic cycles, but even more so by powerful tendencies of centralisation on the part of the Leninist Party-state. The Law’s potential is thus subject to the overriding caveat that the Party-state’s existence and influence over law and public health must be secured.

Sunday, August 1, 2021

HKU Law Welcomes AIIFL Postdoctoral Fellow Dr Kuzi Charamba

Dr Kuzi Charamba joined as Post-Doctoral Fellow in FinTech, RegTech, Sustainability, and Sustainable Development, based in the Asian Institute of International Financial Law (AIIFL) in February 2021. Kuzi did his PhD / DCL and LLM at McGill University, Montreal, Canada and his LLB at Kings College London. He has taught a number of courses at McGill during his PhD / DCL studies, including winning McGill’s Teaching Tomorrow’s Professor Award. He also has extensive research experience, in particular with the One Earth Future Foundation in Denver, Colorado, USA, as a Visiting Scholar in Residence at the University of Colorado Law School, and research assistant to several leading professors at McGill. He has delivered papers and presentations in Thailand, Canada, the USA, the Dominican Republic, Spain and the Netherlands.

His first book Hired Guns and Human Rights had been published.

 


Saturday, July 31, 2021

Principal Lecturer SK Lee Joins HKU Law in Teaching HK Legal System and the Rule of Law in a Globalizing World

HKU Law Welcomes the Principal Lecturer Ms SK Lee!
 
SK Lee

Biography

SK joined the Faculty of Law as a Principal Lecturer in 2021 and teaches Hong Kong legal system and the rule of law in a globalising world. She obtained her BA in Jurisprudence from the University of Oxford and her Master in International and Public Affairs (MIPA) from the University of Hong Kong. She is qualified as a solicitor in England and Wales and in Hong Kong.

Prior to joining the Faculty, she has worked in the public sector for over 20 years, serving in different areas within the Hong Kong SAR Government, including among others international law and international legal cooperation, human rights and constitutional development, and intellectual property. Her last position in the Government was Deputy Solicitor General (Policy Affairs), Department of Justice from March 2018 to February 2021.

Research Area
  • Chinese Legal History
  • Public International Law
  • Public Law

Friday, July 30, 2021

HKU Law Welcomes the Chair of Comparative and International Law, Professor Alec Stone Sweet

HKU Law Welcomes Professor Alec Stone Sweet who joins the Department of Law as the Chair of Comparative and International Law, working in the fields of comparative and international politics, comparative and international law, international arbitration and human rights. 
     Prior to moving to HKU, Alec was the Saw Swee Hock Centennial Professorship at NUS, and held chaired professorships at the Yale Law School and Nuffield College, Oxford. He has also held visiting appointments at the Columbia Law School, as well as in universities in Aix-en-Provence, Bologna, Florence, Hong Kong, Leiden, Madrid, Milan, Paris, Stockholm, Sydney, and Vienna.
     Alec has published thirteen books, ten with Oxford University Press, including the most recent: Proportionality Balancing and Constitutional Governance: A Comparative and Global Approach (2019); A Cosmopolitan Legal Order: Kant, Constitutional Justice, and the European Convention on Human Rights (2018); and The Evolution of International Arbitration: Judicialization, Governance, Legitimacy (2017). His current book project is a comparative analysis of regional human rights courts. A regular contributor to assorted American law reviews, he has also published articles in peer-reviewed journals, including the American Journal of Sociology, the American Political Science Review, Comparative Political Studies, the German Law Journal, the International Journal of Comparative Constitutional Law, the Journal of Common Market Studies, the Journal of Global Constitutionalism, the Journal of European Public Policy, the Journal of Law and Courts, and West European Politics.

Research Area
  • International Law and Politics
  • Comparative Law and Politics
  • International Arbitration
  • Human Rights

Thursday, July 29, 2021

Angela Zhang on Didi's Failure to Listen Forces Rewrite of Chinese Tech Listing Rules (Nikkei Asia/Opinion)

"Didi's failure to listen forces rewrite of Chinese tech listing rules"
Nikkei Asia/Opinion
Published on 9 July 2021
Introduction: When Jean Liu, the president of Didi Chuxing, was asked during an interview with Bloomberg Television why she had given up the Goldman Sachs managing director's role to join the ride-hailing giant, her reply was that she saw Didi's potential to make a "huge impact."
     She was right, of course, with Didi rising up to become one of the most highly valued tech companies in China. But there is another side to the story behind Didi's rise -- the huge impact Didi has had on the Chinese society also comes with huge regulatory risk. ... Click here to view the full text. 

*Angela Huyue Zhang is director of the Center for Chinese Law at the University of Hong Kong. She is author of "Chinese Antitrust Exceptionalism: How the Rise of China Challenges Global Regulation."

Wednesday, July 28, 2021

Professor Richard Cullen presented at Hong Kong National Security Law 1st Anniversary Legal Forum by DOJ - "Comparative National Security Law: Australia and Singapore"


Professor Richard Cullen was honored to make a presentation at the Conference run by the DOJ to mark the first anniversary of the National Security Law.  

                          Hong Kong National Security Law 1st Anniversary Legal Forum

COMPARATIVE NATIONAL SECURITY LAW:

AUSTRALIA AND SINGAPORE

by 

Richard Cullen 

_________________________________ 

INTRODUCTION

Good afternoon distinguished guests and friends

 

Thank you, Professor Zhu, for the introduction.  And thank you to the Department of Justice for asking me to speak at this forum.

 

In an ideal world, there would be no need for National Security Laws.  We live in a wonderful world – but it is far from ideal.  We received a stunning reminder of this certainty in Hong Kong in 2019.  The insurrection, which grew out of a series of major protest marches, had established traction by early June in that year and it grimly continued for many subsequent months.

 

In the normal, real world, National Security Laws have been applied in various forms for centuries.  The Treason Act, for example, codified the Common Law offence of treason in England in 1351 during the reign of the Plantagenet King, Edward III. 

 

National Security Laws have grown significantly more detailed and complex over time.  Context matters.  After the 911 attacks in 2001 in America, there was a major lift in National Security legislating around the world – led by the US (though, until last year, there was no such lift in Hong Kong). 

 

Consequently, the scope of the matters to be discussed today is wide.  Accordingly, I plan to use my time:

·         To summarize key aspects of the Australian National Security Framework;.

·         To discuss, briefly, the National Security Framework in Singapore; and

·         To consider two relevant case studies illustrating the impact of these National Security regimes. 

Click here for more details of the forum: https://www.legalhub.gov.hk/assets/pdf/epb293.pdf 


Book Review of Henry Litton's The Dance of Folly: Or How Theatrics have Tarnished the Rule of Law by Richard Cullen

“LIKE MOTHS TO A FLAME” – A REVIEW OF:

 

THE DANCE OF FOLLY:

OR HOW THEATRICS HAVE TARNISHED THE RULE OF LAW

by HENRY LITTON

((Kin Kwok, Hong Kong, 2021) 98 pages, HK$120) 

by 

Richard Cullen 

Published at Pearls and Irritations Website in Australia

A series of acute points are made by Henry Litton in his new book, The Dance of Folly.  These typically pivot on his observations of how judges, across various courts in Hong Kong, have been drawn away – by lawyers - from what he argues is the essence of well-grounded, common law reasoning towards playing dubious games with legalized expressions and theory-based arguments.  The result is that dangerous stress has increasingly been placed on the operation of the One Country Two Systems (OCTS) framework, which governs the relationship between Hong Kong and China.  

 

Some will disagree with the central arguments made.  But where they do, most will still find themselves thinking deeply about what is being argued in this robustly readable work.

 

As I read the book, it prompted significant reflection – and a particular memory

 

Over four decades ago, as I was completing my LLB at the University of Melbourne, I began attending various courtrooms to see the law actually being applied.  Armed with my new legal-classroom understanding, I found I could follow what was going on.  Rather like when one learns the rules of football; watching any game afterwards becomes far more engaging.

 

On one occasion I was fortunate enough to happen upon a murder trial, in the Victorian Supreme Court, where the facts were exceptionally lurid.  The two accused, a wife and her lover (call them “X” and “Y”), were charged with murdering her husband (“A”).  The evidence showed that all were no strangers to the professionally criminal way of life.  Apart from myself, a number of X and Y family members were in court paying close attention.

 

The husband and wife, A and X, had a hilly countryside allotment in the well-timbered, modest mountains bordering Melbourne to the east.  By arrangement, Y had arrived one damp day, to coordinate with X in order to murder A.  Husband A was rendered unstable by a blow to the head and fell heavily.  Mr. Y then ran over A with his motor vehicle more than once.  Subsequently, X and Y, discovered that husband A was still drawing breath.  A small calibre rifle was fetched and Y shot A, finally killing him.

 

After all this was established, the barrister for Y, asked to lodge a new defence to the charge of murder.  To do this mid-trial is unusual.  The judge agreed to a voir dire (a separate hearing within the trial) to allow the barrister to make his application.  The jury was sent from the courtroom so they would not hear the argument unless the judge said it was admissible.

 

The barrister for Y then advised the judge that his client now wanted to plead self-defence.  The judge asked the barrister what the basis for this argument could possibly be.  The barrister explained that, although husband A was significantly injured prior to being shot, it must have been the case that he was also extremely angry with Y, by that stage, and thus, had he been able, he would certainly have been minded to kill Y and Y, thus, shot husband A dead in order to defend himself.  The judge shook his head slightly in what looked like disbelief and smartly told the barrister that this argument was improper and would not be allowed to be put to the jury.

 

I had heard how lawyers could argue that black was white, but here I saw that sort of ability applied in real life for the first time.

 

The judgments in the cases analyzed by Henry Litton do not involve vividly lethal facts to compare with those just outlined but they do rely on putting legal arguments to work, unfittingly in Litton’s view, in ways which have adversely shaped the operation of the common law system in the Hong Kong Special Administrative Region (HKSAR).

 

Chapter 4 of this new book is entitled, “Do Judges Run Prisons?”  Henry Litton provides a withering review of a case involving certain personal hygiene and appearance procedures applied within prisons in Hong Kong.  

 

In March 2012, Leung, Kwok Hung was convicted of a criminal charge before a magistrate.   Leung was, for an extended period, a Member of the Legislative Council (LegCo).  He was widely known as “Long Hair” in recognition of the way he had worn his hair over many years.  After exhausting the appeal process, he commenced his sentence of four weeks in 2014.  His hair was cut short in accordance with long established prison regulations (page 39).  

 

After some indecision about appealing against this hair-cutting decision because it was discriminatory – women prisoners in separate prisons are not ordered to have short haircuts in the same way – Leung lodged an appeal to the High Court, which was heard in April and May, 2015.  A declaration was given in Leung’s favour in a 39 page judgment delivered 18 months later in late 2016.  The Court of Appeal (CA) reversed this outcome in another prolonged judgment in April 2018.  In November 2020, the Court of Final Appeal (CFA) overruled the CA and restored the original judgment, once more explaining why at length.  The entire process took over five years.  It transformed what Henry Litton powerfully argues was clearly (and justly) a matter best left to be decided (as it had been for many years) by the prison administration, into an immensely elongated discussion of equality rights, which now complicates custodial discipline measures (pages 39 – 49).  

 

He finds the outcome absurd.  He says the Judge at First Instance failed to accept his basic, judicial gate-keeping responsibility.  The judge should have stopped the original case from proceeding in the interests (inter alia) of good governance.  Subsequently, the disarray was compounded when the CFA failed in its leadership role by giving the procedural (access to judicial review) aspects of the case “not an ounce of thought”, simply following where it was led by counsel (page 50).

 

Litton concludes by observing that: “The judges, at all three levels of the courts, seem drawn to overseas case law as moths to a flame: apparently brushing aside the inconvenient truth that the common law system operates under the principle of One Country Two Systems.  Such a mind-set spells disaster in the long run.  It is not a formula for the long continuation of the common law in Hong Kong” (pages 50-51).

 

The book is conspicuously based on the penetrating analysis of a series of high profile cases – mostly cases seeking judicial review.  These include (apart from the case above) the court-based review of: the election of the former Chief Executive C. Y Leung (2012); procedures under the Complaints Against Police Ordinance (CAPO) and police identification (2020); the Face-Covering Case (2020); and a bail-procedural case related to the new National Security Law (NSL) in 2020 (chapters 1 to 8).

 

Litton perceives – and documents in detail – the clear failure in many such judgments to come to terms with the substantive factual evidence as they each detour into “forensic games” typically played by discussing abstracted interpretations of the Basic Law and most recently, the NSL, both of which are nationally enacted fundamental laws applying in the HKSAR (chapters 1 to 8).

 

He repeatedly notes the failure to stop improperly based applications for judicial review (many of which are publicly funded by legal aid) proceeding at all.  

 

The criticisms leveled are sharp but they are typically argued, step by step, with clarity.  In his analysis of the Face Covering Case, Litton makes one perceptive point after another (chapter 3).  At the outset he notes that judicial review is meant to aid those with a real grievance in the public law field and not “a mere agitator” (page 28).

 

Litton explains that all the applicants seeking a review of the new, emergency face-covering regulations (made under the Emergency Regulations Ordinance (ERO)) applied on October 5, 2019 by the HKSAR Government, were LegCo members, apart from one who was a former LegCo member.  Litton asks the question which the court did not: were the applicants “legislators or agitators”.  Why come to court – why not argue these matters within LegCo (which, as it happens, had largely been rendered non-functional by these same LegCo applicants).  Litton goes on: “Were the applications made in good faith – or were [the applicants] just pursuing a political agenda?”(pages 28-29)

 

In an extraordinary judgment, the two High Court Judges hearing the case at first instance declared that the ERO was unconstitutional and they also struck down most of the regulations, themselves.  This was a plainly dangerous on at least two levels.  First, it badly handicapped the Hong Kong Police who were in the midst of managing the most difficult crisis they had faced in decades: trying to bring an end to the immensely violent and destructive multi-month insurrection which began in June 2019.  Second, it openly challenged the fundamental constitutional role of the sovereign.  Beijing explicitly reviewed the laws of British Hong in February, 1997 and then adopted most of those laws, in general.  Next, a list was provided of particular laws which were not adopted because they contravened the Basic Law.  The ERO was not on this list.  The judgment also singularly failed to consider the vital nature of the public interest as an existential threat to the social and constitutional order of Hong Kong unfolded (see Cullen, Richard, “Ruling on mask ban a reminder of centrality of public interest”, China Daily, March 1, 2021).

 

The CA overturned the ERO declaration and restored most of the regulations.  Finally, the CFA dismissed every ground relied on by the applicants – restoring all the regulations.  By this time, the judgments, described in the book as a “carnival of words” ran to over 320 pages, in total.  Litton trenchantly notes that: “It should have been blindingly obvious that counsel’s arguments that the [ERO] was unconstitutional verged on the absurd.  Why was it given oxygen by the judges?”  He summarizes the final outcome in these words: “After so much huffing and puffing, what has been achieved?  The answer is zero, except to show how the law can be made ineffectual when the discipline is ignored” (page 32).

 

The book also includes a chapter that provides an overview of the new NSL (chapter 7).  Litton first outlines the history of the failed attempt by the HKSAR to enact new a National Security Law in 2003 pursuant to the requirement to do this spelled out in Article 23 of the Basic Law.  He then concisely summarizes the terrifying extent and impact of the lengthy 2019 insurgency and the paralyzing of LegCo.  He also notes how this massive dispute in Hong Kong was used, inter alia, as a means to advance geopolitical interests aligned against China.  In these circumstances, the need to upgrade national security protection became urgent (page 71).

 

In a paper written by Paul Harris, a leading Hong Kong Senior Counsel and now Chair of the Hong Kong Bar Association, it is said that NSL Article 43 (listing police powers), “goes far to create a police state”.  Litton says that this claim is a “gross exaggeration”.  He goes on to argue in detail and convincingly against this paper – and a related paper on the Joint Declaration by the same author (pages 77 – 85).

 

The concluding chapter deals with the “35 plus primaries” organized by the Pan-Democrat opposition in July 2020 (after the NSL was proclaimed) to prevent vote-splitting and to find the candidates most likely to be elected in the (then approaching) September, 2020 LegCo elections, who would use their LegCo powers to apply new constitutionally disruptive pressures on the HKSAR Government (chapter 9).  

 

Litton argues that what was sinister about this scheme was that it was designed “to implement a wider plot called “ten steps to mutual destruction” which had been outlined in a pro-democrat newspaper, Apple Daily on 28 April, 2020”.  He explains, convincingly, based on the outlined plan, that, if the 35 plus majority had been secured, the new legislators were committed to using their powers to create chaos (page94).

 

More recently, the author has written a related, influential article.  Published in early July, 2021, it reflects on the first year of operation of the NSL in the HKSAR.  It is entitled “A Close Run Thing” – drawing on a remark made by the Duke of Wellington after winning the Battle of Waterloo, against Napoleon, in 1815.  Litton states, definitively, that in 2019, “What Hong Kong faced was an insurgency, the overthrow of government, nothing less:” another close run thing.  In the conclusion to this article, he briskly notes how inadequately protected – compared to the NSL – potential defendants are under the measurably harsh text deployed within the US national security regime.  

 

This sort of clear comparative analysis provides one foundation which shows how repeated Western claims of freedoms being stifled in the HKSAR under the NSL are starkly and purposefully detached from reality.  Litton agrees with Mr C. H Tung that Hong Kong has been systematically used as a proxy within a wider power conflict.  

 

The central message of this book can be summarized as follows:

  • Hong Kong is inalienably and fundamentally part of China;
  • As the HKSAR, it enjoys remarkable special, constitutional, political, economic and social privileges and opportunities within China under the OCTS framework;

 

  • But it also owes deep obligations to China, under OCTS, to protect national security within the HKSAR and within China;

 

  • This obligation has been singularly amplified by the increasingly hostile efforts by the US (and heavily-encouraged-allies) to confront and contain the rise of China, which threatens American superpower hegemony more seriously than at any time since the end of World War II;

 

  • The key to maintaining OCTS so that it operates to the best advantage of Hong Kong through until 2047 and beyond, is building and sustaining a level of fundamental trust between Hong Kong and Beijing;

 

  • The Judiciary in the HKSAR is uniquely placed and has a special responsibility both to maintain the essential principles of the common law and to maintain that trust;

 

  • There have now been too many instances, within the judiciary, of a “carnival of words” unfolding where there is a lack of “focus on the true issues [while] forensic games [are] played with a  national law”;

 

  • This has led to an increase in mistrust of the HKSAR Judiciary in Beijing;

 

  • This is a grave current problem which needs to be addressed candidly and effectively.

 

Prior to the decision in the Face Covering Case, one might have argued that these concerns, though real, were rather strongly stated.  After that decision, however, it is hard to disagree with the basic tenor of where Henry Litton says we now find ourselves, judicially, and why – and why this has led to a measurable undermining of cross-border trust.  A central and difficult concern presents itself, which the judiciary in Hong Kong has to address.

Tuesday, July 27, 2021

Daisy Cheung on Bringing the Adult Guardianship Regime in Line with the UNCRPD: The Chinese Experience (International Journal of Law, Policy and the Family)

Abstract: This article examines the Chinese experience with adult guardianship, focusing in particular on the regimes in Hong Kong and China. As jurisdictions in which the UN Convention on the Rights of Persons with Disabilities (‘UNCRPD’) applies, a key question is whether the adult guardianship regimes in these jurisdictions can be considered compliant with the principles of the UNCRPD, specifically those in Article 12. The adult guardianship regimes in both jurisdictions are in essence substitute decision-making regimes and are therefore not consistent with the interpretation of Article 12 by the Committee on the Rights of Persons with Disabilities, or what is described as the ‘strong interpretation’ in this article. The question remains, however, as to whether they might be nonetheless considered compliant with what is described in this article as the ‘weak interpretation’. This article explores supported decision-making, the concept of capacity and the existence and sufficiency of safeguards in each of the two regimes, concluding that neither regime can be considered compliant even using the weak interpretation of Article 12. Reflections on the way forward are discussed.

Sunday, July 25, 2021

New Book: Hong Kong in China—Rethinking the Hong Kong–Mainland Relationship (in Chinese) (香港在中國—重新思考內地與香港關係) by Christine Loh and Richard Cullen

"Hong Kong in China—Rethinking the Hong Kong–Mainland Relationship (in Chinese)"
<<香港在中國—重新思考內地與香港關係>>
Author / Editor
著 陸恭蕙 (Ms Christine Loh) 高禮文 (Professor Richard Cullen) , 譯 魏磊傑
City University of Hong Kong Press
Published in 2021
Overview: It is over 20 years since British Hong Kong became the Hong Kong Special Administrative Region (HKSAR) of the People’s Republic of China (PRC). Much has happened that is positive since 1997. At the same time there have been recurring political incidents and stand-offs which have produced a series of severe policy log-jams and bred anxiety among the people of Hong Kong. There is a belief that Hong Kong is “stuck” and unable to advance.
     Can the HKSAR see a positive future within China? We recently published a short book, with Abbreviated Press in Hong Kong, entitled, No Third Person: Rewriting the Hong Kong Story, to address this question (see: http://www.abbrv.press/nothirdperson.html. Available from the Book Depository: https://www.bookdepository.com/No-Third-Person-Christine-Loh/9789881662965). We felt there remained a need for a further, more thorough discussion about Hong Kong’s future. We have now published an extended online review of this key question entitled, Hong Kong in China with the IPP Review in Singapore (see: https://ippreview.com/index.php/Index/company/name/about.html). This translated version of Hong Kong in China is enabled by the generous agreement of Abbreviated Press and the IPP Review. (Sections within Hong Kong in China repeat text and arguments found in No Third Party.)
      The last British Governor of Hong Kong, Chris Patten noted, in 1996, that "The world should want China to succeed as it continues its brave economic revolution." We agreed with that view then and we agree with it today. In this work, serialized in three parts in the IPP Review, we explain why Hong Kong remains exceptionally well placed to continue to shape its own positive future, within China, just as it has done, with such remarkable success, in the past.
     Part 1 of Hong Kong in China provides a general introduction of the historical background of Hong Kong seen from British and Chinese perspectives over the last two centuries. It also explains the constitutional and legal structure of Hong Kong’s reversion to Chinese sovereignty and considers how this regime has operated when placed under stress. Part 2 sets out Hong Kong’s economic fundamentals and also reviews the geo-political stresses affecting the Hong Kong – mainland relationship. Part 3 investigates how Hong Kong can get unstuck and – building on this – how Hong Kong can construct its new narrative – the story of Hong Kong in China.
      We owe thanks to a range of people who have advised and commented on this work. These include, Professor Albert Chen and Professor Fu, Hualing from The University of Hong Kong and Professor Harry Glasbeek, Emeritus Professor, Osgoode Hall Law School, Toronto, Canada. We owe special thanks to Professor Wei Leijie and his team from Xiamen University in China who have undertaken this translation. The authors, alone, are responsible for all that is argued in this book and for any errors and omissions.

Preface by Professor Albert Chen.

Introduction of Preface: A "Post-National Security Law Era" Narrative for Hong Kong

What is "one country, two systems"? How should we understand the relationship between the "high degree of autonomy" of the Hong Kong Special Administrative Region (HKSAR), state sovereignty and the central authorities’ “comprehensive jurisdiction” over the HKSAR? What should be the identity of Hong Kong people? What kind of discourse or narrative should there be about the "Hong Kong Story"?  How should Hong Kong’s past be understood? What kind of future will Hong Kong have?  How could the path of "one country, two systems" proceed?

     In the "post-National Security Law era", this series of issues is more urgent than at any other time in history, and they are causing anxiety among many Hong Kong people. Although this book was written before the enactment of the HKSAR National Security Law, it has fleshed out these issues and provided preliminary answers to them.

      In fact, I believe that in the "post-National Security Law era", this book is more meaningful, valuable and enlightening to us than it was at the time of its writing.  The authors are Christine Loh and Richard Cullen.  Loh is a public figure in Hong Kong, having served as a member of the Hong Kong Legislative Council before and after reunification, and as Undersecretary for the Environment of the HKSAR Government.  Loh is also a scholar and has written many books. Cullen, from Australia, has taught at the School of Law of City University of Hong Kong for many years, and in recent years at the Faculty of Law of The University of Hong Kong. Both authors are intellectuals who have long lived in Hong Kong, served Hong Kong and love Hong Kong. This book is the culmination of years of their reflections on Hong Kong's situation under "one country, two systems", and on the "Hong Kong story". 

Praise from the Dean Professor Fu Hualing (in Chinese):

「這本書提醒讀者香港憲制的史是世界史和中國史的一個小插曲。近二十年來有關一國兩制的爭論和衝突只有放在中國和世界的視野下才會有真正的意義它們主要是世界格局的變化在香港引發的陣痛。應對速變是香港的宿命,而香港從來都能把握好危機中的機會。本書正是告訴讀者香港的將來在中國、中國的將來在世界。把握好這個機遇,香港依然是中國走向世界的橋樑。」
    傅華伶
    香港大學 法律學院教授,院長

Saturday, July 24, 2021

New Book: Johannes Chan's Paths of Justice in Chinese translation << 眾裡尋她:公義在香港 >> with the Author's Notes

<<眾裏尋她:
公義在香港
>>
(Paths of Justice) in Chinese translation
陳文敏 (Johannes Chan) 著
HKU Press
Law, Hong Kong
June 2021
264 pp.

the Author's Notes: The English version has been very popular and has received many positive feedbacks and book reviews. It has taken the author Johannes Chan a few years to do the translation to publish the Chinese version so that it could reach an even wider readership in the community. As the author Johannes Chan translated it himself, he has the freedom not to be bound by the original text. Thus, some chapters have been updated; some chapters have been expanded to provide more background or explanation, and yet they try to preserve the legal arguments in the English version so as to give readers a good sense of how court cases are argued and how our courts deal with these matters. The author Johannes Chan has also replaced the original Chapter 14 by a new Chapter 14 as the original chapter may be too technical. The new chapter is about prison visit, which was a case taken up by our legal clinic.
      Margaret Ng translated the first draft of Chapters 17, 18, 19 and 21.
     There are too many updates and expansions throughout the book. More update is done in Chapter 1 (notably from pp. 19-22), which captured what happened since the publication of the English edition. Many other changes are due to the fact that English is a more concise language. When it is translated into Chinese, the author Johannes Chan finds it necessary to provide more explanation. In some cases, the author Johannes Chan just tried to re-write the original English version so that it may read better. Thus, the book is a lot more than just a translation. There are too many changes to be enumerated, as they appear in virtually every chapter.


Book Description in Chinese (with the Author's Biography): 

在《眾裏尋她:公義在香港》,陳文敏教授通過其個人經驗和重要案例,探討香港法律制度的核心價值。本書解釋和釐清了一些有關香港法律的常見問題。例如大律師如何為有罪的人作辯護?法律偏袒於有財有勢的人嗎?我們是否在任何情況下皆要遵守法律?在人權與國家安全互相抵觸的情況下,兩者該如何取得平衡?公平又如何與行政效能協調?我們可以因自由被濫用而否定它嗎?陳教授在書中亦會談及法律專業和專業精神,並指出法律專業備受尊崇在於律師嚴格堅持其專業操守,並致力於維護公義與公平。

本書所談及的案例涵蓋不同的法律範疇,並橫跨陳教授數十年的執業經歷。通過這些真實案例,陳教授不但令讀者更明白香港的法律制度如何運作,亦讓讀者更深入地考量法律體制、法律專業、正義在現代社會的角色和法治的重要性。

陳文敏為香港大學法律學院公法講座教授暨前院長(2002–2014),專研憲法、行政法和人權法,著作甚豐。他於2003年成為香港首位名譽資深大律師。2018年出版Paths of Justice 一書,為本書的英文版本。2020年以《正道、大學:寫在風雨之後》一書獲第13屆香港書獎。

 
Praises in Chinese:

「本書詳述了許多不同範疇的法律問題,提出了在閱讀相關法庭判決時難以領略的觀點。筆者也將抽象的法律原則以他的人生體驗深刻地人性化。」 ──梁定邦,QC,SC,JP,曾任高等法院暫委大法官

「本書透過說故事的形式探討法律問題,使讀者易於理解。書中的生動活潑法律場景,展現了不少備受尊崇的大律師的故事和香港法律的重要變遷。」 ──吳靄儀,大律師,前香港立法會議員

Friday, July 23, 2021

New Book by Shahla Ali: Forming Transnational Dispute Settlement Norms: Soft Law and the Role of UNCITRAL's Regional Centre for Asia and the Pacific (Edward Elgar Publishing)

Forming Transnational Dispute Settlement Norms:
Soft Law and the Role of UNCITRAL's Regional Centre for Asia and the Pacific
(Asian Commercial, Financial and Economic Law and Policy series)
Shahla Ali
Edward Elgar Publishing
Published on 25 May 2021
288 pp.
Description: This thought-provoking book examines whether regional centres associated with global legal institutions facilitate expanded citizen engagement in global soft law making. Through an analysis of empirical research into the role of decentralized soft law making in the East Asian region, it investigates the influence of such regional centres in overcoming representational deficits in the design of cross-border dispute settlement norms.

Review: 

'Shahla Ali provides a richly detailed case study that illuminates how soft law is actually created and becomes effective. In doing so, she also shows how transnational dispute resolution norms are developed and how they become a form of legal regulation even in the absence of coercive enforcement power. Thus, this book is a must for scholars of global legal pluralism, practitioners of transnational dispute resolution, and all those interested in understanding in granular detail how international law is created and develops power over time.'

– Paul Schiff Berman, The George Washington University, US

'Shahla Ali's excellent new book on the role of UNCITRAL's Regional Centre for Asia and the Pacific in soft law-making shows the importance of rigorous, in-depth empirical analysis to test and support theoretical arguments calling for direct citizen participation to confirm the legitimacy of global norms.'

- Steven Wheatley, Lancaster University Law School, UK

'International commercial arbitration has long been subject to criticism for unequal access to and participation in shaping the rules and practices of this transnational legal order. Professor Ali's book breaks new ground on this key issue for the legitimacy of commercial arbitration by persuasively documenting a success story in broadening and deepening Asian state participation. The book shows that the success of UNCITRAL's International Trade Law Regional Centre for Asia and the Pacific may provide a model for other regions.'

- Bryant Garth, UCI Law, US and author of Dealing in Virtue

'This book leverages original data and novel methods to show convincingly how a regional soft lawmaking institution can overcome deliberative deficits, asymmetries in lawmaking influence, and failures to appropriate national and local creativity in global trade lawmaking. By imaginatively ''mapping the middle,'' Shahla Ali persuasively demonstrates the integral ways that a regional body can consolidate responsive transnational legal orders (TLOs) by harnessing state and non-state innovation and adaptations to diverse economic and legal contexts. In so doing Ali discovers new variants of TLOs and opens up exciting frontiers for research and theory.'

- Terence Halliday, American Bar Foundation, and co-author of Global Lawmakers: International Organizations in the Crafting of World Markets

'This study of the growing role of Asia-Pacific countries in the governance of international dispute resolution combines sophisticated treatments of the relevant legal instruments and theoretical literature with rigorous empirical analyses. It is impossible to ignore this evidence of decentralized transnational legal ordering and how it might be fostered by regional institutions.'

- Kevin E. Davis, NYU School of Law, US

'It is rare to have 5 years of our work performance scrutinized academically, and peer-reviewed. I cannot escape a sense of relief after reading this remarkable work by Professor Shahla Ali. Her work shows the importance of having more Regional Offices, not only of UNCITRAL, but, I dare to say, also of the HCCH and UNIDROIT. This book demonstrates how they are key enablers of legal reforms and relevant platforms to ensure equal access to legal knowledge. One of the possible conclusions reading this book, is that such work reduces non-tariff (sometimes invisible) trade barriers, and has tremendous side effects like levelling the playing field for practitioners and legal educators from parts of the world often meriting less attention and resources. For example, without such work, we would have never seen DPR Korea or Laos adopting the CISG and its core value: party autonomy. This book is indispensable for any one engaged with legal reforms based on international cooperation.'

- João Ribeiro-Bidaoui, Permanent Bureau of the Hague Conference on Private International Law (HCCH) and UNCITRAL Regional Centre for Asia and the Pacific (2013-2018)

Thursday, July 22, 2021

Professional Law Books by HKU Faculty of Law

                       A list of Professional Law Books by HKU Faculty of Law has been showcased!

Congratulations to these PLE professional law book authors!