Roda Mushkat on Economics and International Law: Closer Alignment through Greater Analytical Diversity? (Chinese (Taiwan) Ybk Int'l L & Aff)

"Economics and International Law: Closer Alignment through Greater Analytical Diversity?"

Roda Mushkat

Chinese (Taiwan) Yearbook of International Law and Affairs, 2018 Issue 36,  pp. 1-55 

Abstract: The scope of International legal inquiry has expanded considerably in recent years, in terms of the analytical perspectives brought to bear on the issues addressed, rather than merely their nature and intricacy. Traditional-style approaches continue to feature prominently in the cognitive toolkit relied upon to frame and dissect problems, but no longer exclusively and in an unadulterated form. Novel conceptual insights have been incorporated from the social sciences, injecting a multidisciplinary, and even interdisciplinary, element into the system. Economics has increasingly come to the fore in this context, both directly and indirectly, initially in relation to State compliance with international law and latterly on a wider basis. The narrowly focused, neoclassical paradigm featuring an assiduous, omniscient, and self-centered agent—homo economicus—has given way to more nuanced and multifaceted schemes but, as demonstrated in this article, the process of shrinking gaps in the explanatory façade and weaving together the disparate interpretative threads may have considerably further to go. The evolution of economically inspired international legal theory is traced here with a view to showing how post-neoclassical contributions, supported with empirical illustrations based on Eastern realities, persistently overlooked in the Western-dominated academic literature, might fruitfully enrich this body of knowledge and align it more tightly with behavioral patterns observed across different geographies throughout modern history.

Isabella Seif & Kelley Loper on How the UN Compact on Refugees Can Address the Rohingya Crisis (Asia Global Online)

"How the UN Compact on Refugees Can Address the Rohingya Crisis"
Isabella Seif & Kelley Loper 
Asia Global Online

28 November 2019

One year since the United Nations adopted the Global Compact on Refugees, Isabella Seif and Kelley Loper of The University of Hong Kong examine the impact of the non-binding framework and how it might be applied to address the Rohingya crisis in Bangladesh and Myanmar.

    The United Nations General Assembly adopted the Global Compact on Refugees and the Global Compact for Safe, Orderly and Regular Migration in December 2018. These resolutions are milestones that signal the international community’s embrace of a more comprehensive response to the dramatic increase of forced migrants over the past several years. While neither instrument is legally binding, they contain important political commitments that states around the world, including governments in Asia, have accepted. They affirm the global nature of the problem and the need to devise collaborative, longer-term, practical solutions. The Refugee Compact in particular emphasizes international cooperation and responsibility sharing “to better protect and assist refugees and support host countries and communities”... Click here to read the full text. 

Frank He & Yang Su on Flexibility and Authority: Resolving Labor Disputes in a County Government in Western China (Law & Soc Rev)

"Flexibility and Authority: Resolving Labor Disputes in A County Government in Western China"

Xin He & Yang Su

Law & Society Review 
First published: 22 November 2019

Abstract: Existing literature regards flexibility and authority as key characteristics of informal justice. We further contend that the combination of the two is crucial for informal justice to be effective. We investigate the process of dispute resolution by a Chinese labor agency. Following the life cycles of a sample of 810 labor disputes, we find that this informal justice forum was efficient and effective, made possible by the combination of flexibility and authority. Flexibility means that the agency attracts certain types of cases that are usually screened out of the formal legal system and that agency officials use “informal,” hence flexible, techniques. Authority means that the administrative agency possesses additional powers over the disputants; hence, the disputants are under pressure to follow its suggestions and decisions. A comparative analysis of various cases of informal justice reinforces the importance of combining flexibility and authority. We further demonstrate that flexibility without authority is insufficient and that some informal justice forums are effective because they enjoy both.

Daisy Cheung and others on the Future Direction of Law Reform for Compulsory Mental Health Admission and Treatment in Hong Kong (Int'l J L & Psychiatry)

"Articulating future directions of law reform for compulsory mental health

admission and treatment in Hong Kong"

Daisy Cheung, Michael Dunnb, Elizabeth Fisteinc, Peter Bartlettd, John McMillane, Carole J. Petersen

International Journal of Law and Psychiatry

Published in November 2019 online
Introduction: This article builds on the work of an international conference on the topic of compulsory mental health admission and treatment in Hong Kong (the ‘Conference’) and explores the pathways for reform in this area. A number of jurisdictions around the world are currently re-viewing their mental health laws, in part because of the requirements of international treaties that seek to protect the rights of persons with disabilities. The challenge in the review and reform process is aligning local mental health needs, frameworks and traditions with overarching commitments to treat people with mental illness in ways that safeguard their control over their own treatment, reduce coercive interventions, and protect against arbitrary deprivations of liberty. In outlining four possible pathways for potential law reform in Hong Kong, we intend to also provide a blueprint for regulatory change in other jurisdictions that seek to draw a balance between local needs and international norms. The comparative value of this piece lies not in its direct applicability to other jurisdictions, but in its demonstration of how an exercise like this might be undertaken, and the kinds of considerations that should be taken into account when addressing relevant features of each of the four pathways in alternative local contexts.

     Our article proceeds as follows. Part II presents a brief overview of the mental health system and legal framework in Hong Kong. Part III considers Hong Kong's international commitments for the protection of human rights, in particular the International Covenant on Civil and Political Rights (‘ICCPR’) (which is incorporated into Hong Kong's do-mestic legal system) and the United Nations Convention on the Rights of Persons with Disabilities (‘CRPD’), which has applied to Hong Kong since 2008. Part IV summarises the key local challenges that Hong Kong faces in any attempt at reform. We then set forth, in Part V, four dif-ferent strategies for reforming mental health law in Hong Kong: (i) theabolition pathway, (ii) the risk of harm pathway, (iii) the mental ca-pacity pathways, and (iv) the consensus pathway. Part VI provides abrief conclusion for the article... Click here to read the full article.

New Book: Criminal Law in Sri Lanka (Michael Hor and others) (LexisNexis)

Criminal Law in Sri Lanka

Wing-Cheong Chan, Michael Hor, Neil Morgan, Jeeva Niriella and Stanley Yeo

LexisNexis

Published in November 2019

Description: This book describes and evaluates the general principles of criminal responsibility and the major offences against the person and property contained in the Sri Lankan Penal Code. The aims are to assist in the application of the law and to provide suggestions for reform. To achieve these aims, it examines cases from other Penal Code jurisdictions as well as from Sri Lanka. There has not been a comprehensive study of the Sri Lankan Penal Code since Professor GL Peiris’ books were published nearly 40 years ago (General Principles of Criminal Liability in Ceylon: A Comparative Analysis (1st Edn, 1972; 2nd Edn, 1980) and Offences under the Penal Code of Ceylon (1st Edn, 1973; 2nd Edn, 1982)). Significant legislative and case law developments have occurred since that time. Much of the Penal Code has stood the test of time. However, given its antiquity, this commentary proposes significant reforms. They include the enactment of a ‘General Part’, with precise and comprehensive provisions reflecting contemporary views about criminal responsibility.

   Key Features:

• Comprehensive analysis of the general principles of criminal responsibility in Sri Lanka
• Analysis of the major offences against the person and property in light of the general principles of criminal responsibility
• Review of major relevant cases from Sri Lanka, India, Malaysia, Myanmar and Singapore
• Placing the law in a historical and theoretical context pointing to its strengths and weaknesses, and suggesting potential reforms to bring the law into the 21st Century

Fu, Gillespie , Nicholson & William Partlett on East Asian Socialism and East Asian Legality: A Response to Ewan Smith (Asian J of Comp L)

"East Asian Socialism and East Asian Legality: A Response to Ewan Smith"
Hualing Fu, John Gillespie, Pip Nicholson and William Partlett

Asian Journal of Comparative Law 

Published online on 19 November 2019

Introduction: Ewan Smith has written a thoughtful and nuanced review of Socialist Law in Socialist East Asia that effectively highlights the main difficulties in researching and analyzing socialist law in East Asia. He has a keen understanding of socialist law and supports the objective of the book, which is to place 'socialism back in the foreground of our analysis of law in East Asia'. He discusses the problems the authors faced in disentangling socialist law from socialist state institutions. In addition, he reflects on what `socialist' law might resemble if it were disaggregated from Marxist-Leninist thought. Smith also points out that law is not socialist just because self-declared socialist states say it is socialist. Or as he eloquently puts it: 'The party's account of socialist law is a treacherous guide to its true nature and true objectives'... Click here to read the article.

Alistair Fraser & Daniel Matthews, Towards a Criminology of Atmospheres: Law, Affect and the Codes of the Street (Criminology & Criminal Justice)

"Towards a criminology of atmospheres: Law, affect and the codes of the street"
Alistair Fraser & Daniel Matthews

Criminology & Criminal Justice

First Published on September 11, 2019

Abstract: The street has a long and distinguished pedigree in criminology as a site of human sociability, transgression and spontaneity. Recent scholarship in legal studies has, however, explored the role that non-human actors play in the normative ordering of urban life. These interventions suggest the need for criminologists of the street to take seriously not only the experiential foreground of crime but also its background. In this article, we seek to bring these traditions into dialogue through engagement with the concept of ‘atmosphere’ – a place-based mood or spatialised feeling that blends human and non-human elements, and has the capacity to act in a quasi-agentic manner. Drawing on an experiment in ‘atmospheric methods’ conducted during Hong Kong’s pro-democracy Umbrella Movement, in which some of the city’s central streets were occupied for 79 days, we seek to demonstrate that the analytics of ‘atmosphere’ offers a unique conceptual approach to urban life and street crime in the contemporary age.

Rebecca Lee on the Adult Guardianship Dilemma in Hong Kong (Trusts & Trustees)

"The adult guardianship dilemma in Hong Kong"

Rebecca Lee

Trusts & Trustees
Published on 12 November 2019

Abstract: Today, there is worldwide consensus that ageing has become an issue of global concern. The frail elderly, together with other vulnerable sections of the community, may turn to adult guardianship, a mechanism for planning for and the protection of individuals with cognitive impairment. There is, however, an inherent tension at the heart of the legal institution of adult guardianship: although it protects individuals with cognitive impairment from potential abuse and exploitation, that protection is often provided by subjecting individuals to the plenary authority of their guardians. Against this backdrop, this article critically examines the struggle with the tension within the adult guardianship regime in Hong Kong and, drawing on reforms in major jurisdictions with long-standing experience of guardianship experimentation, explores the features of a guardianship system that tackles this dilemma.

New Book Celebrating 50th Anniversary of HKU Law (HKU Press)

A Special Standing in the World: The Faculty of Law at The University of Hong Kong 1969-2019

Christopher Munn

Hong Kong University Press

November 2019, 360 pp.

Description: The history of the Faculty of Law at HKU is in many ways the history of the law in modern Hong Kong. Founded in 1969, the Faculty has helped transform a colonial legal backwater into a flourishing jurisdiction, in which Hong Kong maintains its common law system as a special administrative region of the People’s Republic of China. The Faculty has played a vital part in fostering a legal profession firmly rooted in Hong Kong, functioning in both Chinese and English. Its early teachers pioneered scholarship on Hong Kong law. Its graduates now make up over half of Hong Kong’s Judiciary and legal profession. Over the years the Faculty has earned worldwide recognition as a centre of research in subjects ranging from human rights to financial regulation.

     Published to mark the Golden Jubilee, this book traces the Faculty’s rise from humble origins to its position as one of the world’s leading law schools. Drawing on archives, publications and interviews, the book explores the growth of the Faculty against the momentous events of the past 50 years. The first two chapters examine the Faculty’s prehistory when, for over a hundred years, most of Hong Kong’s lawyers were trained in England. The remaining six chapters explore alternately the Faculty’s internal history and its role in building Hong Kong’s modern legal system.

About the Author: Christopher Munn is the author of Anglo-China: Chinese People and British Rule in Hong Kong, 1841–1880 (HKUP, 2008) and a co-editor of the Dictionary of Hong Kong Biography (HKUP, 2012) and Meeting Place: Encounters across Cultures in Hong Kong, 1841–1984 (HKUP, 2017).

Reviews:

‘Dr Munn traces the Faculty of Law’s fascinating journey over half a century. From a modest beginning, it has developed into one of the finest law schools in the world. The story is told in the context of the historic events and momentous changes of this era. This illuminating and outstanding work deserves to be widely read.’ —The Hon. Andrew Li, First Chief Justice of the HKSAR (1997–2010) 

‘Christopher Munn’s history of the Faculty of Law is more than the history of a remarkable educational institution—it is a history of how the law and legal culture in Hong Kong developed from modest mid-nineteenth-century colonial beginnings to its present pre-eminent position. Clearly composed in lively prose, this book is essential reading for anyone who seeks to understand modern Hong Kong and its place in the world today.’ —The Rt Hon. Beverley McLachlin, Chief Justice of Canada (2000–2017)

Amanda Whitfort Speaks at the 11th Asia for Animals Symposium in Dalian, China

"Asia for Animals: China conference focuses on using laws creatively to protect animals"

By Annette Gartland

Changing Times

21 October 2019

The 11th Asia for Animals (AfA) symposium, which has just taken place in Dalian, China, was focused on how laws can be used creatively to protect nonhuman animals. Delegates heard presentations from lawyers, academics, and activists from Asia, the United States, Australia, and Europe. More than four hundred people attended AfA 2019. They ranged from people working on the ground in rescue and rehabilitation organisations to animal advocates, veterinarians, scientists, government officials, scholars, and those working in education. The biennial event was this year co-organised by the Animals for Asia Coalition and the Vshine Animal Protection Association, based in Dalian.

     Speakers from China emphasised that local regulations in the country are very effective, but said that the Wildlife Protection Act was about using animals as resources rather than protection and welfare, and needed further revision. 

    National anti-cruelty legislation is urgently needed, speakers said. China’s wildlife protection legislation was revised in 2016 and now covers hunting, and selling wildlife items on the Internet. There are strong deterrent penalties and a new draft list of protected species, but the law allows commercial trade in protected wildlife and their products. Previous to the new draft, China’s wildlife conservation list had only been updated once since it was released in 1989. In 2003, the authorities upgraded the protection status for musk deer.

     Amanda Whitfort, who teaches Criminal Litigation and Animal Law at the University of Hong Kong’s Law Faculty, told AfA delegates about the use of public interest litigation in China in animal welfare cases. This, Whitfort says, has the capacity to impact very significantly on the way animal abuse is dealt with in China. China’s public interest litigation framework is extremely advanced, Whitfort says, and it is growing and gaining strength.“Since its formal adoption in 2012 Chinese environmental public interest litigation has gone beyond just recognition of individuals’ rights to sue for environmental harms and now it gives procuratorates the power to initiate actions against government officials for abuses of animals when they are combined with criminal prosecutions,” she told delegates... Click here to read the full text.

Human Rights Lawyer Patricia Ho Joins HKU Law's Clinical Legal Education Programme

HKU Faculty of Law warmly welcomes Mrs Patricia Ho who joins as a Principal Lecturer in the Clinical Legal Education Programme. Patricia is a public law practitioner who has been involved in many judicial review and personal injuries cases involving human trafficking and refugee matters, migrant worker rights, transgender rights, disability rights and child and family rights. She is the managing and founding partner of Patricia Ho & Associates and founder of the non-profit Hong Kong Dignity Institute. 

    Patricia is a co-author and presenter of the Crimes (Amendment) (Modern Slavery) Bill 2019 which has been introduced into Hong Kong Legislative Council in the same year. She regularly provides trainings and seminars to the NGO and legal community in Hong Kong on avenues to protect victims of human trafficking and forced labour. In 2018, she was a co-organiser and panelist at the International Conference on Combatting Human Trafficking. She is an advocate for a trauma-informed approach to client management. She was trained in Post Trauma Psychosocial and Mental Health Interventions for the Refugee Population, and in 2015, was invited to be a keynote speaker at the Symposium on Mental Health and Psychosocial Wellbeing of Conflict-Induced Displaced Persons in Hong Kong. Patricia’s pro bono work has been recognized by the Law Society of Hong Kong through being awarded with the Pro Bono and Community Work Recognition Gold Award for six consecutive years as well as the Distinguished Pro Bono Service Award in 2017 and 2018.

Fu Hualing on the Power to Detain in a Dual State Structure (Made in China Journal)

"The Power to Detain in a Dual State Structure"
Fu Hualing
Made in China Journal
Vol. 4, Issue 3, Jul–Sept 2019, pp. 70-74

In liberal democracies, detention power tends to converge on three issues: first, differences in social/political status are no longer relevant, and common legal rules apply to all types of detention based on the fundamental right of personal freedom; second, political mechanisms and legal rules are in place to reduce state arbitrariness in depriving citizens of personal freedom; and finally, detention is subject to enhanced juridical control, with access to lawyers and judicial scrutiny serving as the litmus test for its legality. Indeed, the transition from a police-centric legal system to a court-centric one is often regarded as the hallmark of genuine democratisation, and the degree to which personal freedom is protected offers a meaningful index to measure the status of rule of law in a particular society. (Cao et al. 2014).

    After four decades of legal reform in China, what kind of progress has the country made in controlling the power to detain, reducing its arbitrariness, and making the repressive arm of the state legally accountable? Has the fear of police power, in particular the proverbial panic of a knock at the door in the middle of the night, been reduced or increased? A general answer to these questions is that there are changes and continuities, as the power to detain is largely defined and shaped by China’s regime type... Click here to read the full article.

Launch of The Hong Kong Journal of Law and Public Affairs (HKJLPA)

Marking the 20th anniversary of the BSocSc (Govt & Laws) & LLB Programme (GLaws) at HKU, the Hong Kong Journal of Law and Public Affairs (HKJLPA) was launched in 2019 as the annual journal of the Government and Laws Committee (GLC). The theme of the inaugural volume is “Confucian Democracy and Constitutionalism”, which features interesting contributions from experts all over the world exploring the theory and practice of operating Western political institutions such as representative democracy and constitutionalism in the context of Confucian values and norms in East Asian jurisdictions. HKJLPA also features a review of GLC’s initiatives, and the achievements of GLaws students over the past year.

ABOUT THE HKJLPA

The HKJLPA is the first student-edited law and political science journal in all of Asia, established by the Government and Laws Committee, Politics and Public Administration Association SSS HKUSU (GLC) with full support from the Bachelor of Social Sciences (Government and Laws) and Bachelor of Laws Programme at HKU in 2018. 

      The Journal publishes articles in both English and Traditional Chinese from researchers, teachers, practitioners, and students all over the world. It accepts submissions in all areas broadly related to the intersection between law and politics, including but not limited to comparative constitutional law and politics, international law and relations, jurisprudence and political philosophy, and administrative law and public administration. 

     As the GLC’s in-house flagship publication, the Journal is committed to promoting a stronger understanding of cutting-edge issues that lie at the nexus of law and politics at the international and domestic levels, and to offering a robust platform for the exploration of ideas that will guide how societies are organised and governed. 

ABOUT THE INAUGURAL VOLUME 

The theme of the inaugural volume is “Confucian Democracy and Constitutionalism”. For decades, scholars and practitioners have been theorizing and debating possible models for Western political institutions such as representative democracy and constitutionalism to operate in East Asian countries in which the traditional Confucian culture is deeply embedded within. This interdisciplinary study features essays from leading political science, philosophy and legal scholars that engage these theories and debates through investigating multiple East Asian jurisdictions such as China, Vietnam and Korea to further illuminate our understanding on the Region’s political and constitutional future. This inaugural volume also features a review of the GLC's initiatives over the past year, including various forums, visits to legal and political institutions and career events.   The volume can be downloaded here.

     The Journal has been produced and edited under the supervision of Dr Eric Ip, and submissions from internationally renowned legal scholars (particularly from the fields of comparative constitutional law and political theory) including Professor Andrew Harding (NUS), Professor Daniel A. Bell (Shandong U), Dr. Jaclyn L. Neo (NUS), Dr. Bui Ngoc Son (CUHK) and Professor Sungmoon Kim (CityU) among others have been accepted.

HKU Law Welcomes Dr Xu QIAN (Post-doctoral Fellow in Belt and Road Law)

HKU Law warmly welcomes Dr Xu QIAN who joins the team of scholars researching legal issues related to China's Belt and Road Initiative. Dr Qian explores issues at the intersection of international economic law and human rights. Her work also deals with environmental law, dispute settlement, constitutional law and increasingly Greater Bay Area legal cooperation. Her publications include “Rethinking Judicial Discretion in International Adjudication” Connecticut Journal of International Law (2020); “Is It Finally Time for Asia’s Free Trade Agreements? The ASEAN Present and the RCEP Future” Asian Journal of International Law (2019); “Challenges of Water Governance (and Privatization) in China” Georgia Journal of International and Comparative Law (2018); "Trans-Pacific Partnership: A World Trade Revolution?,” APEC Currents (2016). She contributes to Asia Law Portal which is the leading source of information and insights on the practice of law in the vast Asia-Pacific region. Dr QIAN is currently working on a new article, which critically examines the application of the proportionality principle across two decades of investment disputes.

    Dr Qian was a scholar in residence at The Hague Academy of International Law in 2019 for which she received the Academy’s prestigious “Doctoral Scholarship.” She has presented her work at many academic events including the International Water Association (IWA) Annual Conference (2016), Asia FDI Forum II, III and IV (respectively, May 2016, March 2017 and March 2018), and Loyola School of Law conference “Rule of Law in the 2030 Sustainable Development Agenda”. Dr Qian holds a BA from Heilongjiang University (2012), an LLM and PhD from CUHK Law (respectively 2014 and 2019), and a post-graduate diploma from the Academy of International Trade and Investment Law (2015).

New Study on Unconscious Bias and Implications for Equality in Hong Kong and Asia (WSRC & CCPL)

Doing Equality Consciously: Understanding Unconscious Bias and its Role and Implications in the Achievement of Equality in Hong Kong and Asia

Puja Kapai
Women’s Studies Research Centre (WSRC) & Comparative and Public Law (CCPL)
September 2019

Description: In a project funded by the Equal Opportunities Commission, Puja Kapai conducted a study into the levels of unconscious bias on the grounds of gender and race in Hong Kong.  She examined who harboured which types of unconscious biases, whether such biases serve as predictors of discriminatory behaviour and whether it is possible to ameliorate these unconscious biases.  Summary of the results in conclusion: The results of this research study provide groundbreaking insights into the prevalence, nature and extent of unconscious bias among different social groups as well as the variables which influence such biases negatively or positively in the context of Hong Kong. Furthermore, the study demonstrates the effectiveness of specifically designed interventions in terms of reducing particular biases, while outlining the more challenging categories of unconscious bias which require more complex intervention models to address concretely. The key research findings of the 180-page report are: 

(1) Unconscious gender and racial biases are widespread in Hong Kong across diverse social groups.

(2) Unconscious bias tends to be stronger in the case of racial biases compared with gender biases. 

(3) The level of racial bias also varies depending on target group with South Asians being more susceptible to higher levels of bias relative to Mainland Chinese for the most part.  

(4) The level of gender bias in relation to sciences is significantly higher when compared to gender-role stereotypes pertaining to career.  

(5) The IAT itself has the effect of mitigating against certain types of unconscious bias but may have the opposite effect in respect of deeply entrenched biases.

(6) Interventions can and do work. However, the effectiveness of interventions varies depending on the type of bias, targets of discrimination, social groups targeted by the intervention, their social networks and exposure to outgroups.

(7) Some biases (racial biases) are more entrenched than others (gender-based biases) in the Hong Kong context and interventions have limited or little impact in reducing them.

(8) One-size-fits-all solutions do not work. There is a clear and potent need for intervention tools to be well-tailored to different groups and contexts and fine-tuned for different types and manifestations of biases. 

     Importantly, this study is the first of its kind to examine the manifestation of unconscious bias as embedded in an Asian context. The findings demonstrate that unconscious bias clearly exists and is prevalent in our society. However, in Hong Kong, it presents in specific ways judging from the distinct findings pertaining to certain racial categories and gender stereotypes in relation to career and sciences. Moreover, it reveals the significance of social context, networks and the particular background factors on bias levels. While intervention by way of raising awareness about the existence of different types of unconscious bias is found to mitigate biases, it is not sufficient in and of itself to reduce these in concrete terms or in the longer-term. Furthermore, if delivered carelessly without due consideration of the environmental context in which 109 participants are engaged and their background or networks, or a failure to debrief participants properly in terms of what the scores mean relative to prejudice levels, the intervention can have a detrimental effect, in turn, exacerbating biases. 

     These findings bear important implications for future of research and design considerations pertaining to unconscious bias and the implementation of interventions in Hong Kong in across different sectors, most notably, corporate, high school and higher education sectors.

Eric Ip Comments on the Hong Kong Highspeed Railway Station Judicial Review Decision (Public Law)

"Hong Kong - Mainland Chinese Enclave in Highspeed Railway Station held Constitutional, Leung Chung Hang Sixtus v President of the Legislative Council [2019] 1 HKLRD 292" 

Eric Ip

Public Law

First Published 2019

Abstract: A parcel of land in the heart of the Hong Kong Special Administrative Region has been ceded to mainland China in all but name under the Guangzhou-Shenzhen-Hong Kong Express Rail Link (Co-location) Ordinance (Cap.632), becoming the first mainland enclave, known as the "Mainland Port Area," inside Hong Kong in which the full force of socialist criminal and national security law will apply to the exclusion of the Special Administrative Region's common law system for all practical purposes. This Case Comment focuses on the Court of First Instance's judgment in Leung Chung Hang Sixtus v President of the Legislative Council [2019] 1 HKLRD 292 that the Ordinance and the Mainland Port Area it set up are constitutional. This Comment exposes several logical shortcomings in the judgment, including its argument from silence that the Basic Law does not intend to prohibit the Mainland Port Area, which can equally be used to argue that the Basic Law does not intend to allow the same. It gives due credit to the Court in upholding a common law approach in constitutional and statutory interpretation. And it argues that, paradoxically, in reviewing the Mainland Port Area's constitutionality, the Court has tacitly affirmed that the Hong Kong Judiciary necessarily retains a kind of constitutional jurisdiction over the Area that had not been ousted by the Ordinance.

RTHK and HKU Law Faculty Co-Produce “A Legal Journey” (6-episode TV docudrama in English and Cantonese)

The rule of law is a core value of Hong Kong as well as a cornerstone of the city’s prosperity. To uphold this value and safeguard our system, the Faculty of Law has nurtured not only members of the legal profession but also committed community leaders. Through the 6-episode TV docudrama “A Legal Journey” (現身說法), co-produced by RTHK and the Faculty of Law as one of its 50th Anniversary celebration activities, let us trace the journey of local legal education in the past five decades and how it contributes to the legal system and the rule of law in Hong Kong when meeting the challenges of a rapidly changing environment.

 

To mark the occasion, a Premiere of the programme was held at JC Cube, Tai Kwun on 11 March 2019, which was attended by Professor Xiang Zhang, President and Vice Chancellor of the University, representatives from RTHK, members of the profession, many friends and alumni, staff members and students.  “A Legal Journey” was first aired from March 24 to April 28 on RTHK31 and also on TVB Jade from March 27 for six consecutive weeks.  To view all the episodes recorded in Cantonese, click here. The English version was aired from 15 August 2019 on RTHK31 and can be viewed here.  See also the HKU Law 50th Anniversary website.

Weixia Gu on the Recognition and Enforcement of Judgments in Civil and Commercial Matters in China (new book chapter)

"China"
Weixia Gu
in Anselmo Reyes (ed.), Recognition and Enforcement of Judgments in Civil and Commercial Matters (Hart Publishing 2019)
Chapter 2, pp. 31-50

Introduction: The unparalleled economic growth of the People's Republic of China has resulted in a paradigm shift in its legal regime.  Once a closed market to the world, China now faces an unprecedented surge of international business and movement of global capital into its domestic market in light of its immense economic growth in the past 40 years.  As a result of this growth, the internationalism of business in China requires the domestic courts to accommodate private international law practices such as allowing foreign judgments to be recognized and enforced in the domestic courts: a clear indicator of globalization and the development of China's economy. 

     An important step China has taken in the past few years is to improve efficiency in recognizing and enforcing foreign judgments.  Specifically, the salient shift to a more liberal application of the reciprocity principle, the signing of the 2005 Hague Choice of Court Convention (2005 Hague Convention) and the growing number of bilateral treaties on judicial assistance are clear indicators of China's recent willingness to improve commercial certainty for the parties involved, to promote fairness for both domestic and foreign litigants, and to ensure the global movement of judgments, resulting in increased investor confidence and further economic growth in China.

     This chapter will analyse current theory and practice with respect to the recognition and enforcement of foreign civil and commercial judgments in China.  There are three regimes that will be analysed: (1) the existing Sino-bilateral judicial assistance treaties on civil and commercial matters; (2) in the absence of a bilateral treaty, the application by the Chinese courts of the principle of 'reciprocity' while taking account of procedural and substantive concerns specific to China; and (3) the potential impact of the 2005 Hague Convention signed by the Chinese government in September 2017...

Kelley Loper on Human Rights and Substantive Equality: Prospects for Same-Sex Relationship Recognition in Hong Kong (N Carolina J Int'l L)

"Human Rights and Substantive Equality: Prospects for Same-Sex Relationship Recognition in Hong Kong"

Kelley Loper

North Carolina Journal of International Law

Spring 2019, Volume 44, No. 2, Article 4

Introduction: This Article considers judicial approaches to the adjudication of the rights of Lesbian, Gay, Bisexual, and Transgender (LGBT) persons in the Hong Kong Special Administrative Region of the People’s Republic of China (Hong Kong). Hong Kong provides a notable case study of litigation strategies and court responses in a jurisdiction open to international human rights law. Sodomy was decriminalized in 1991 under the former British colonial regime, and, since 2006, Hong Kong courts have decided a number of cases concerning a range of issues including transgender marriage, different ages of consent for vaginal and anal intercourse, other discriminatory criminal provisions, restrictions on television broadcasts about relationships between gay men, the rights of incarcerated transgender persons, and the rights of same-sex couples. Other cases are still working their way through the system and future challenges are anticipated as advocates continue to pursue a persistent litigation strategy... Click here to read the full text. 

Johannes Chan on a Dynamic Relationship between the Judiciary in a Liberal Society of Hong Kong and a Socialist-Leninist Sovereign State (Current Legal Problems)

"A Shrinking Space: A Dynamic Relationship between the Judiciary in a Liberal Society of Hong Kong and a Socialist-Leninist Sovereign State"

Johannes Chan

Current Legal Problems

First Published 27 September 2019

Abstract: Hong Kong provides a unique case study on the roles and functions of the judiciary within an authoritarian or semi-authoritarian sovereign. Under the unique constitutional arrangement in Hong Kong, a liberal common law judiciary in a highly sophisticated modern metropolis is encapsulated within a Socialist-Leninist sovereign regime that ideologically rejects separation of powers, independence of the judiciary and values of individual liberalism. Notwithstanding the sharp ideological differences and the greatly asymmetrical distribution of social, economic and political powers in this One Country, Two Systems constitutional model, it is argued that the relationship between the courts and the authoritarian sovereign power is and has been complex and dynamic. The Hong Kong courts have been able to create their institutional space by establishing an impressive liberal constitutional common law, but that constitutional space is shrinking as the over-zealous sovereign is increasingly assertive of its views on matters that it perceives to be affecting state interests. By examining a series of controversial decisions, this paper argues that there are reasons that the courts could, with creativity and sensitivity, maintain a delicate and balanced relationship with the sovereign without succumbing to the political pressure, but that the greatest threat of independence of the judiciary comes from within the judiciary in internalizing the values of the socialist state.  Click here to read the full article.