Saturday, January 14, 2023

Darcy Lynn Davison-Roberts: "A HANDBOOK FOR PRACTITIONERS | HONG KONG" (chapter in Civil Liability for Human Rights Violations: A Handbook for Practitioners, KE)

by Darcy Lynn Davison-Roberts, Senior Lecturer,
Faculty of Law, The University of Hong Kong
Civil Liability for Human Rights Violations:
A Handbook for Practitioners

pp.1-38 (online version of the Hong Kong Chapter)

The Bonavero Institute of Human Rights at the University of Oxford, led a project on civil liability for human rights violations from 2019 to 2022. Funded by the Oak Foundation, the project involved a comparative study of the legal systems of a wide range of jurisdictions to analyze existing domestic law mechanisms or principles for imposing civil liability on public bodies, corporations, and individuals in three specified categories of human rights violations: (1) assault or unlawful arrest and detention of persons, (2) environmental harm, and (3) harmful or unfair labor conditions.
One of the project’s outcomes is a Handbook for Practitioners. The handbook is intended to serve as a practical resource for understanding when and how civil claims can be used as a tool to vindicate human rights in 19 jurisdictions. The country report for Hong Kong SAR was authored by Darcy Davison-Roberts, Senior Lecturer at the University of Hong Kong's Faculty of Law.
Designed for practitioners, the handbook allows readers to refer directly to a specific jurisdiction, with each report following a uniform template. The Editor's Introduction explains the handbook's scope and provides comparative insights drawn from the reports.
The handbook can be downloaded as one complete PDF file or as individual country reports and the Editor's Introduction as separate PDF files. This resource serves as a comprehensive guide for legal professionals and human rights advocates looking to understand and utilize civil liability mechanisms for human rights violations in different countries.

Abstract of the Hong Kong Chapter: Hong Kong is a special administrative region that exists as part of the People’s Republic of China under the ‘One Country, Two Systems’ principle. Until 2047, the legal system of Hong Kong is one of common law inherited from the British colonial government. The judge-decided case law is augmented through ordinances enacted by the Legislative Council. The Basic Law and the Hong Kong Bill of Rights Ordinance are the primary statutory sources of fundamental human rights in Hong Kong, but they apply to and bind only public bodies. Civil claims against private actors are commenced based on the common law of torts and statutory remedies.

Introduction of the Hong Kong Chapter:  
1. The legal system of Hong Kong is one of common law, inherited from the British colonial government that governed Hong Kong as a crown colony from 1842 to 1997. Upon the resumption of sovereignty of Hong Kong by the People’s Republic of China in 1997, and under the principle of 'One Country, Two Systems' (1C2S), Hong Kong was designated as a ‘special administrative region’ of the People’s Republic of China and was to enjoy a ‘high degree of autonomy’. Fundamental to the 1C2S principle was the promise that the Hong Kong Special Administrative Region (HKSAR) was to retain its governmental, political and economic systems for 50 years, ending in 2047. This means that the systems implemented by the British colonial government, including the common law legal system, the rule of law, an independent judiciary, and a tradition of protecting human rights, are to remain untouched during this period. Furthermore, all laws in force in Hong Kong at the time of the Handover are to remain in force in the post-Handover period, being the common law, rules of equity, ordinances, subordinate legislation and customary law, with limited exceptions.
2. While the HKSAR is a common law jurisdiction, the common law, comprised primarily of judge-decided case law, is augmented by way of ordinances (legislative instruments) that are enacted by the HKSAR Legislative Council (LegCo). The Special Administrative Region’s ordinances and subordinate legislation can be accessed through a bilingual, free and searchable database. Additional sources of law in the HKSAR include national law of the People’s Republic, the Basic Law (which is the HKSAR’s constituting document) and interpretations of the Basic Law by the Standing Committee of the National People’s Congress of the People’s Republic of China (NPCSC), customary law and international law.

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