HKU Legal Scholarship Blog: June 2018

Tuesday, June 26, 2018

David Law on The Global Language of Human Rights (Law & Ethics of Human Rights)

"The Global Language of Human Rights: A Computational Linguistic Analysis"

Law & Ethics of Human Rights
2018, Vol. 12, Issue 1

Abstract: Human rights discourse has been likened to a global lingua franca, and in more ways than one, the analogy seems apt. Human rights discourse is a language that is used by all yet belongs uniquely to no particular place. It crosses not only the borders between nation-states, but also the divide between national law and international law: it appears in national constitutions and international treaties alike. But is it possible to conceive of human rights as a global language or lingua franca not just in a figurative or metaphorical sense, but in a literal or linguistic sense as a legal dialect defined by distinctive patterns of word choice and usage? Does there exist a global language of human rights that transcends not only national borders, but also the divide between domestic and international law?

Empirical analysis suggests that the answer is yes, but this global language comes in at least two variants or dialects. New techniques for performing automated content analysis enable us to analyze the bulk of all national constitutions over the last two centuries, together with the world’s leading regional and international human rights instruments, for patterns of linguistic similarity and to evaluate how much language, if any, they share in common. Specifically, we employ a technique known as topic modeling that disassembles texts into recurring verbal patterns.

The results highlight the existence of two species or dialects of rights talk — the universalist dialect and the positive-rights dialect — both of which are global in reach and rising in popularity. The universalist dialect is generic in content and draws heavily on the type of language found in international and regional human rights instruments. It appears in particularly large doses in the constitutions of transitional states, developing states, and states that have been heavily exposed to the influence of the international community.

The positive-rights dialect, by contrast, is characterized by its substantive emphasis on positive rights of a social or economic variety, and by its prevalence in lengthier constitutions and constitutions from outside the common law world, especially those of the Spanish-speaking world. Both dialects of rights talk are truly transnational, in the sense that they appear simultaneously in national, regional, and international legal instruments and transcend the distinction between domestic and international law. Their existence attests to the blurring of the boundary between constitutional law and international law. Click here to download the paper.

Friday, June 15, 2018

Johannes Chan's "A Storm of Unprecedented Ferocity" (ICON)

"A Storm of Unprecedented Ferocity: The Shrinking Space of the Right to Political Participation, Peaceful Demonstration and Judicial Independence in Hong Kong"

Johannes Chan

June 2018
ICON, Volume 6, Issue 2

Abstract: As Hong Kong celebrated its twentieth anniversary of becoming a Special Administrative Region of China under the One Country, Two Systems model, the tension between the socialist/civil law system and the common law system on two sides of the border has become increasingly strenuous. The tension is most obvious in relation to the independence of the judiciary, and is aggravated by the rising economic power of China and the emergence of the so-called “localism” in Hong Kong. This article argues that the latest interpretation of the Basic Law by the Standing Committee of the National People’s Congress in the context of disqualifying a number of popularly elected legislators constituted the most blatant interference with judicial independence in Hong Kong. At the same time, the judiciary in Hong Kong is facing mounting challenges from demonstrators who tried to test the boundary of public demonstrations in the pretext of civil disobedience. The court has done well so far in defending the rule of law, but it has to secure its own institutional space within a shrinking public space, and is treading an ever-slippery path of maintaining the liberal values of the common law system amidst a rising and powerful authoritarian regime.
This special issue of ICON which is focused on Asia also has review essays by Hualing Fu (with Xiaobo Zhai) and Maria Adele Carrai (PhD 2016) and book reviews by Po Jen Yap (with Chintan Chandrachud), Albert Chen and Kelley Loper. Recent books authored by Po Jen Yap (Courts and Democracies in Asia) and Shitong Qiao (Chinese Small Property: The Co-Evolution of Law and Social Norms) are also reviewed in this issue.

Wednesday, June 13, 2018

Simon Young on Disproportionality in Asset Recovery (new book chapter)

"Disproportionality in Asset Recovery: Recent Cases in the UK and Hong Kong"

Simon NM Young
in Colin King, Clive Walker & Jimmy Gurule (eds), The Palgrave Handbook of Criminal and Terrorism Financing Law, vol 1 (Palgrave Macmillan, May 2018) pp 469-489

Abstract: Proceeds of crime laws are designed to interfere with persons’ property rights and interests for good reasons, but human rights laws prohibit interferences that are disproportionate. Courts in the UK and Hong Kong are starting to develop a body of law to provide guidance in this area. While the UK courts are more advanced than the Hong Kong courts, the guidance that has emerged is still preliminary and judges are far from unanimous on both methodological and substantive points. The chapter argues that judges should adopt a two-step methodological approach that applies the broad and natural meaning of the legislative scheme at the first step and invokes proportionality only at the second stage to address disproportionate outcomes on a case-by-case basis. It further argues that courts should adopt an individualised approach to proportionality based on the application of three principles. Disproportionality in restraint or confiscation cases will normally be seen if the legal measure in question is unable to serve its objective, exceeds its objective in a systemic and detrimental manner, or has effects that are grossly out of proportion to its objective. Courts will be able to achieve a greater degree of coherence if these three principles are properly adapted and followed. Contact snmyoung@hku.hk for a copy of the chapter.

Tuesday, June 12, 2018

New Book: Paths of Justice (HKU Press) by Johannes Chan

Paths of Justice
Johannes Chan
HKU Press
June 2018, 264 pp

Description: In Paths of Justice, Johannes Chan illuminates fundamental themes and basic values in Hong Kong’s legal system by using his own experience and drawing on interesting and important cases. The book explains and demystifies some of the most frequently asked questions about the law: How does a lawyer defend someone who is guilty? Does the law favour the rich and the resourceful? Is there a duty to obey the law in all circumstances? How can human rights and national security coexist in balance if their goals conflict in certain situations? How can fairness be reconciled with administrative efficacy? Is an abuse of freedom a justification for denying it? He also casts light on legal profession and professionalism, arguing that the legal profession is honourable only because lawyers, by and large, do live up to a high ethical standard and are committed to the values of justice and fairness.

These cases cover a wide range of legal discussion and span several decades of Chan’s professional practice, from when he was a young barrister to his years as Honorary Senior Counsel. Through the description of these real-life court cases, he gives readers not only a better understanding of how Hong Kong’s legal system works in practice, but also the essential tools to think deeply about legal institutions, the legal profession, the role of justice in a modern society, and the importance of the rule of law.

Professor Chan was recently interviewed by the SCMP on 9 July 2018 and by Deutsche Welle on 29 June 2018.

Monday, June 11, 2018

New Issue: SSRN Legal Studies Research Paper Series (HKU)

UNIVERSITY OF HONG KONG FACULTY OF LAW LEGAL STUDIES RESEARCH PAPER SERIES

Vol. 8, No. 6: June 7, 2018

DOUGLAS W. ARNER, EDITOR

SIMON N. M. YOUNG, EDITOR

1. Dispute Resolution in International and Bilateral Investment Agreements

Shahla F. Ali, Deputy Director, Program in Arbitration & Dispute Resolution, University of Hong Kong, Faculty of Law

Wilson Mbugua, The University of Hong Kong, Faculty of Law, Students

2. Research Funding's 'Endorsement Effect' on Scientific Boundary Work and Research Production: Government Legitimization of Alternative Medicine

Ryan Whalen , The University of Hong Kong - Faculty of Law

3. Public and Private Enforcement of Corporate and Securities Laws: An Empirical Comparison of Hong Kong and Singapore

Wai Yee Wan, Singapore Management University - School of Law

Christopher C. Chen, Singapore Management University School of Law

Say Hak Goo, The University of Hong Kong - Faculty of Law

Wednesday, June 6, 2018

Marco Wan on Hong Kong's Unique Traditions of Marriage and the Same-Sex Civil Servant's Case (SCMP)

"Gay marriage would be more at home among Hong Kong's traditions than court suggests"

Marco Wan

South China Morning Post

7 June 2018

In the latest twist in the saga of same-sex unions in Hong Kong, the Court of Appeal ruled against Angus Leung Chun-kwong, the gay civil servant who asked the government not to discriminate against him by granting him and his male partner, whom he married abroad, spousal benefits, and allowing them to file their taxes jointly. The court notes that Leung’s claims were inconsistent with the local culture, history and tradition upon which the contemporary understanding of marriage is built.

However, a closer look at Hong Kong’s unique traditions of marriage suggests that these traditions actually support Leung’s case. Decades of gay rights litigation have taught us that the past that gets evoked to resist change is often more imaginary than real, and any use of it, whether by courts, politicians or activists, should be scrutinised.

In ruling against Leung, the court underscores that Hong Kong’s prevailing socio-moral values militate against any official recognition of his marriage. Crucially, it emphasises that such societal views are primary considerations for both the court and the government because they are derived from long-standing local practices and beliefs associated with marriage. Granting spousal benefits or joint tax assessment to gay and lesbian couples, then, would be tantamount to going against the history of marriage in Hong Kong.

The court is insistent on this point: phrases like “the Hong Kong context”, “history”, “tradition” and “long usage” appear repeatedly in the judgment.

This inward turn towards the city’s supposedly unassailable lineage also underpins the court’s sidelining of developments in the long line of pro-gay jurisdictions around the world, including that of Britain, the United States, Taiwan and European countries like France and Germany... Click here to read the full article.

Tuesday, June 5, 2018

Martin YC Kwan on Restoring Transactions Unknowingly Tainted by Insider Trading (Common Law World Review)

"Restoring transactions unknowingly tainted by insider trading: A Hong Kong case"
Martin YC Kwan (PCLL candidate)

Common Law World Review

First published online on May 11, 2018

Abstract: In the Hong Kong Court of Appeal decision The Securities and Futures Commission v Young Bik Fung and others, the Court applied s. 213(2)(b) of the Securities and Futures Ordinance (SFO) to restore two transactions of shares entered into by an investor who invested based on ‘information, advice or tips’ given by an insider, despite the investor did not know that the advice was based on inside information and was not guilty of insider trading. Nevertheless, the investor was ordered to repay the profits made as if the transactions had not been made. It is suggested that the restoration order in Hong Kong has the widest scope of application among the major common law jurisdictions, because Hong Kong is the only jurisdiction where a person who has not committed any market conduct can nevertheless be subject to a restoration order. The Court justified such wide scope of application with reference to the paramount policies of minimizing market misconduct and ensuring no benefits is obtained from insider dealing by anyone. By a comparative law analysis, it is argued that s. 213(2)(b) SFO has been wrongly interpreted. The paramount policies should not be blindly applied without giving proper consideration to other established principles of law, such as the fundamental right to property of the unknowing investor.