New Book by Po Jen Yap & Chien-Chih Lin: Constitutional Convergence in East Asia (CUP)

Constitutional Convergence in East Asia

Po Jen Yap and Chien-Chih Lin

Cambridge University Press

Published: December 2021

Description: This comparative study of the constitutional jurisprudence of three East Asian jurisdictions investigates how the rulings of the Constitutional Court of Taiwan, the Constitutional Court of Korea and the Hong Kong Court of Final Appeal have converged. The unique political contexts of all three jurisdictions have led to strong courts using the structured proportionality doctrine and innovative constitutional remedies to address human rights issues. Hong Kong, Taiwan, and South Korea have the only courts in Asia that regularly use a structured four-stage Proportionality Analysis to invalidate laws, and routinely apply innovative constitutional remedies such as Suspension Orders and Remedial Interpretation to rectify constitutionally flawed legislation. This volume explores how judges in these areas are affected by politics within their different constitutional systems. The latest developments in Asian constitutional law are covered, with detailed analysis of key cases.

• Explains why and how the apex courts in Hong Kong, Taiwan and South Korea have converged on constitutional law
• Enhances understanding of how politics shape judicial behaviour
• Identifies and analyses the key constitutional case-law in Hong Kong, Taiwan and South Korea

Han Zhu's Comparative Study of the Oath-Taking Controversies in Hong Kong and Taiwan (new book chapter)

"Democratic Legitimacy vs. Rule of Law: A Comparative Study of Oath-Taking Controversies in Hong Kong and Taiwan"

Han Zhu

in Democracy and Rule of Law in China's Shadow, edited by Brian Christopher Jones, UK: Hart Publishing, April 2021.

Abstract: Five hundred years ago, the subjects of the Spanish Kingdom of Aragon swore the oath of allegiance to their king: “We who are as good as you swear to you who are no better than we, to accept you as our king and sovereign lord, provided you observe all our liberties and laws; but if not, not.” In Hong Kong and Taiwan today, the ancient tradition of oath-taking still give rise to heated disputes surrounding the issues of national identity and regime legitimacy. This book chapter traces the series of events surrounding oath-taking disputes in Hong Kong and Taiwan. It considers the differences in relevant laws and judicial decisions in the two regions, and analyses the factors contributing to the contrast. Underlying the oath-taking controversies is the question, closely related to the right to self-determination/secession, of whether and how a constitutional and legal system can accommodate activities and claims opposing the very foundation upon which the existing constitutional framework operates. Responses from the authorities aimed at tackling the oath-taking issue may range from political negotiation to forceful suppression, which largely reveals the degree of authoritarian or democratic inclinations of a regime. This comparative study demonstrates that the way in which the oath-taking disputes have been handled in Hong Kong has exacerbated the inherent tension between democratic legitimacy and legality in this city. Chapter available from SSRN.

Fu Hualing & Michael Jackson on Protest, Law, and Regime Type: A Case Study of Hong Kong, Mainland China and Taiwan (forthcoming book chapter)

“Protest, Law, and Regime Type : A Case Study of Hong Kong, Mainland China and Taiwan”
Fu Hualing & Michael Jackson in
Democracy and the Rule of Law in China’s Shadow (forthcoming Hart Publishing)

Abstract: This article explores the politics of protest law in Hong Kong, Taiwan and Mainland China. Our principal argument is that regime type is determinative of the political meaning and significance of protests, the structure of protest law, and punishment imposed on protesters. Different regimes assign drastically different political meanings and significance to protests; empower or limit courts in offering different degrees of protection of the right to protest; and encourage or prohibit civil society organizations in  their function of nurturing a society with the freedom to protest.  Click here to download the full paper.

New book: Jianlin Chen on The Law and Religious Market Theory (CUP)

The Law and Religious Market Theory: China, Taiwan and Hong Kong
Jianlin Chen
Cambridge University Press
September 2017

Description: With comparative case studies from China, Taiwan and Hong Kong, Jianlin Chen's new work offers a fresh, descriptive and normative perspective on law and religion. This presentation of the original Law and Religious Market Theory employs an interdisciplinary approach that sheds light on this subject for scholars in legal and sociological disciplines. It sets out the precise nature of religious competition envisaged by the current legal regimes in the three jurisdictions and analyses how certain restrictions on religious practices may facilitate normatively desirable market dynamics. This updated and invaluable resource provides a new and insightful investigation into this fascinating area of law and religion in Greater China today.

Essays on the Hong Kong Umbrella and Taiwan Sunflower Movements (new book chapters)

Law and Politics of the Taiwan Sunflower and Hong Kong Umbrella Movements

Brian C Jones (ed)
2017, Routledge, 236 pp
4. "The Law and Politics of Constitutional Reform and Democratization in Hong Kong"
Albert HY Chen

Introduction: A few weeks after China’s National People’s Congress Standing Committee (NPCSC) promulgated its Decision of 31 August 2014 on the model for the election by universal suffrage of Hong Kong’s Chief Executive in 2017, the “Occupy Central” Movement – also known as the “Umbrella Movement” -- engulfed several key government and business districts in Hong Kong. As in the case of the “Sunflower” Movement in Taipei earlier in the same year, students played a very important role in the Hong Kong movement. Whereas the movement in Taipei was in protest against the ruling regime’s policy of economic cooperation with Beijing, the movement in Hong Kong was a popular protest against Beijing’s policy towards, or restrictions on, democratization in Hong Kong. 

     Beijing’s policy on Hong Kong’s democratization was purportedly based on the provisions of the Basic Law of the Hong Kong Special Administrative Region (HKSAR), which was enacted by the National People’s Congress (NPC) in 1990 and came into force when Hong Kong’s status changed from that of a British colony to a Special Administrative Region (SAR) of the People’s Republic of China (PRC) on 1 July 1997. Ironically, so were the demands of the protestors, who alleged that the NPCSC Decision of 31 August 2014 constituted a breach of Beijing’s promise to the people of Hong Kong that the democratic election of the Chief Executive (CE) of the HKSAR by universal suffrage would be introduced – a promise enshrined in the text of the Basic Law itself. In this sense, the “Occupy” Movement in Hong Kong can be considered a social movement that drew on legal norms as an important component of its strategy of mass mobilization. How then could both the legitimacy of the NPCSC Decision of 31 August 2014 and the claims of the protestors be simultaneously based on the Basic Law – the constitutional instrument of the HKSAR? This chapter seeks to answer this question by reviewing the evolution of Hong Kong’s political system and investigating into the different understanding and interpretations of the Basic Law on the part of the Chinese regime and on the part of democracy activists in Hong Kong. 

     This chapter consists of the following parts, apart from this Introduction. First it examines the development of Hong Kong’s political system since colonial times, and the provisions of the Basic Law governing the political order of the HKSAR. It then briefly reviews the movements towards democratization that took place since the establishment of the HKSAR in 1997. Next it considers developments since early 2013, when the “Occupy Central” campaign was launched to struggle for the realization of “genuine universal suffrage” in the election of the CE of the HKSAR. Finally, it concludes by reflecting on the contradictions and tensions inherent in the project of “One Country, Two Systems” that were revealed by the failure of the “Occupy” Movement in realizing its democratic aspirations, particularly the conflict between the Communist Party-led socialist political system in mainland China and the aspirations towards Western-style liberal democracy on the part of democracy activists in Hong Kong.

5. "Political Protest in High-Income Societies: The Case of the Occupy Central Movement in Hong Kong"

Hualing Fu

Introduction: Hong Kong is a metropolitan city that enjoys prosperity, freedom and the rule of law. It is also a city that recently (1997) came under China’s authoritarian rule. The tension in Hong Kong’s political system is manifested in the continued struggle to reconcile with its new political master and the corresponding demand for democratic advancement. As a “semi-democracy”, Hong Kong is constitutionally committed to universal suffrage, and there is a deeply felt passion and aspiration among residents in the city for liberal constitutional democracy. But the commitment to democracy is ironically made by a Communist Party authoritarian state that is fearful of, if not hostile to, the very concept. The fight for democracy in the sub-national unit within an authoritarian regime has defined and continues to define Hong Kong’s political landscape. 

     Hong Kong has been a difficult place for China to govern. Its political freedom and openness, independent and powerful legal system, and vibrant and challenging civil society are alien to the Central Authorities in Beijing. For them, Hong Kong remains uncharted water in many fundamental aspects. Yet as difficult and costly as it has been, China has grown confident in its ability to govern Hong Kong with a degree of effectiveness, and increasingly has resorted to constitutional rules and legal process in shaping Hong Kong’s political future. The Decision of the National People’s Congress Standing Committee on 31 August 2014, as discussed below, is the most recent example of how China suffocates Hong Kong’s democratic impulses through legal interpretation. But China’s rule of law concept is an authoritarian one. Will it prove effective in deflecting and silencing resistance from political and legal institutions in Hong Kong and in limiting Hong Kong’s constitutional options? 

    Deeply concerned with a real decline in Hong Kong’s way of life, frustrated by the authoritarian rule of law that the Central Authorities impose on Hong Kong, and desperate for the lack of democratic mandate that may entrench Hong Kong’s value and institutions, various groups in the city decided to make their political demands outside the established political and legal routes, launching the largest civil disobedience movement to date by occupying main streets at the heart of the city to protest against the 31 August Decision (the movement was referred to as the Occupying Central Movement, hereafter OCM). In doing so, Hong Kong residents took the constitution into their hands, insisting on their own alternative constitutional interpretation. 

    While the pursuit of democratic value through civic participation and the rule of law are both close to the heart of the Hong Kong people, the OCM, as the largest civil disobedience movement to date, reveals a rare moment of a clear tension between the ideals of democracy and the rule of law. The OCM clearly demonstrated Hong Kong’s democratic passion and resilience. For a brief period, the movement gathered so much momentum that the students appeared to be unstoppable. However, with the prolonged nature of the OCM, the movement started to show its adverse social and economic impact, leading to a split in the community which initially showed a high degree of support and solidarity. The democratic potential of civil disobedience for the OCM began to decline and diminish, and its potential instability started to come to the forefront. As time progressed, the OCM was associated more with frustration, fatigue and disorder, and even became linked with political conspiracy and a continued threat to Hong Kong’s rule of law. When pro-OCT activists struggled to cope with internal conflicts, anti-OCM forces were mobilized and brought the occupiers to courts to account. Ironically, it was a court order that drove a fatal wedge into the OCM, dividing the supporter community and undermining the moral of the occupiers. It was the authority of the court and the willingness of the people in the city to obey the rule of law that effectively suppressed citizens’ democratic impulses. 

    With the peaceful ending of the OCM, Hong Kong’s struggle for democracy has turned a new page. The two-and-a-half month display of mass civil disobedience was unprecedented in its scale, epic in its manifestation, and potentially lasting in its impact on Hong Kong’s constitutional development; but it was also highly controversial and divisive. There was the expectation that when all the dust settles, Hong Kong will have to do some serious soul-searching to rediscover its core values, redefine its identity, and locate itself within China. Unfortunately, the OCM has not brought political antagonism to an end. The OCM is much a reflection of divisive society as a catalyzer of a more radical movement, one that may spin Hong Kong out of control.

6.  "The Nomos of Hong Kong's Umbrella Movement"

Daniel Matthews

Abstract: My claim here is that the great success of Hong Kong's pro-democracy "Umbrella Movement" was that it temporarily ruptured the background ordering of the city that we – as legal scholars – so often take for granted. This interruption of the existing normative order or nomos of the city re-posed the questions belonging and by paying due attention to the interruption that the movement enacted ​we can see its enduring significance for Hong Kong’s legal and political settlement. The argument proceeds by first setting out the shift that I propose to take: away from “law” and towards the “nomos”, a term that, as will become clear, opens our thinking to a broader and more dynamic sense of normative ordering than that afforded by a strictly legalistic lens. I then turn to two distinct senses of the “nomos” that I will discuss in relation to the Umbrella Movement. The first, inspired by the German jurist Carl Schmitt, foregrounds the normative force of spatial ordering and the second, inspired by sociologist Peter Berger and the legal theorist and historian Robert Cover, assesses the discursive dimension to normativity, stressing how shared normative commitments are central to the formation of community and a common identity. My claim is that, beyond raising technical, constitutional issues concerning voting rights, the Umbrella Movement’s interruption of the city’s existing spatio-normative distribution posed fundamental questions about the nature of identity and belonging in the territory that goes to the heart of its political significance.

Yahong Li Interviewed on Taiwanese Case of "Secondary Creation" and "Fair Use" (Ming Pao)

A Taiwanese man, Gu Amo (谷阿莫), has become a celebrity for making 5-6 minutes short films from movie footages and putting them on YouTube. He was recently sued by several movie studios for copyright infringement because, in addition to using the footages without authorisation, he also added his own sarcastic narratives to the short films, which has allegedly harmed the original movies’ reputation and market. Mr Gu argued that his films are secondary creations, thus are exempted from copyright liability under “fair use” doctrine. 

     What is a “secondary creation” and how should “fair use” doctrine be applied to interpret this case? Recently, Ming Pao interviewed Yahong Li on these issues (see Ming Pao, 5 May 2017). Dr Li noted that “secondary creation” is not a legal concept and is not clearly defined. It shall not be confused with derivative work which is an adaptation from an original work into a new form (e.g., a novel to a movie) and needs permission from copyright owner. “Secondary creation” is similar to so-called “user generated contents” (UGC) which may be exempted from copyright liability under the doctrine of “fair use” (or as “fair dealing” under Canadian Copyright Act) based on the assessment of four factors: whether the use is commercial and transformative; whether the original work is creative and well-known; how much (quantitatively and qualitatively) of the original works are used; and whether the new work substituted the original work in the market. These factors are not all favourable to Mr Gu in this case because he had directly taken many key footages from creative films, which had resulted in some indirect profits for him and allegedly market harm to movie studios. 

     Dr Li remarked that, on one hand, the ultimate aim of copyright is to promote public access to creative works, and protecting copyright is only a means to achieve this aim. Encouraging users to create based on existing works is particularly important in a world where the traditional users have become prosumers (producer + consumer). In this regard, Hong Kong’s failure to adopt the Copyright (Amendment) Bill may have a detrimental impact on users’ creation. On the other hand, law reform also needs to consider how to encourage true creation that are beneficial to culture and society. As the quality of Gu’s works is generally low and does not represent a true spirit of creation, the defeat of Mr. Gu in this case, if he eventually loses the case, will not have a chilling effect on other “secondary creations”.  Click here to read the full article in Chinese.

Jerome Cohen on China, Taiwan, Hong Kong and the ICCPR (Video of HKU Seminar)

Professor Jerome Cohen of NYU Law School and Faculty Director of the US-Asian Law Institute recently delivered a lecture at the Centre for Chinese Law, HKU Faculty of Law, on 12 January 2017. The lecture was chaired by Professor Cohen's former student, Cheng Chan Yue Professor in Constitutional Law, Professor Albert Chen.  The abstract for the speech is as follows:

On the 50th anniversary of the creation of the International Covenant on Civil and Political Rights, I will discuss China’s relevance to the UN’s quest for universal ratification of this major human rights treaty. In view of the ICCPR’s guarantees of freedoms of expression and religion, the restrictions that it imposes on the power of governments to punish people arbitrarily, and its strong support for the right to self-determination of all peoples, why did the People’s Republic sign the Covenant in 1998? Why then has it failed to ratify the ICCPR and what are the prospects? I will compare Beijing’s record with the very different position of the Republic of China on Taiwan and also refer to the unusual situation of Hong Kong (and Macao), a special administrative region of the People’s Republic that is protected by the ICCPR even in the absence of ratification by the central government.

HKU Law Faculty Comment on Recent Criminal Deportation Cases Connected to Taiwan (SCMP)

"Beijing has 'legal right' to demand Kenya deport Taiwanese fraud suspects"
Catherine Wong & Lawrence Chung
South China Morning Post
15 April 2016

Beijing had legal grounds to ask Kenyan authorities to deport Taiwanese fraud suspects to the mainland, legal experts say, but it could have avoided controversy over its handling of the affair by showing more respect and better communication with Taipei.

      Forty-five Taiwanese, together with 32 mainlanders in Kenya, were sent to the mainland as authorities investigate their alleged ­involvement in phone scams targeting victims on the mainland.

     The deportations attracted criticism, though legal ­experts said Beijing’s handling of the case was supported by international laws...“Kenya and China, both of which are parties of the Palermo Convention, have the obligation to cooperate in [transnational] organised crime,” said Simon Young, a law professor at the University of Hong Kong. “On the other hand, there is no extradition agreement between Taiwan and Kenya.” The Palermo accord was adopted by the United Nations in 2000 with the aim of promoting cross-border cooperation in tackling organised crime... Click here to read the full article.

"Taiwan hopes for more formal crime-fighting measures with Hong Kong but city's legal scholars see hurdles"

KC Ng, Owen Fung & Samuel Chan

South China Morning Post

16 April 2016

Taiwan authorities expressed hope over establishing a formal crime-fighting mechanism with Hong Kong following the recent transfer of three suspects in the body-in-cement murder case from the island to the city. 

    Legal scholars in Hong Kong, however, had differing views on how likely such a system could be implemented, while a well-placed Taiwan official told the Post that Hong Kong’s lukewarm response to the idea thus far was a far cry from the close relations the respective law enforcement agencies had prior to the city’s 1997 handover. On Thursday, Taiwan’s Mainland Affairs Council said the island wanted to establish closer joint crime-fighting efforts with Hong Kong, including signing a mutual legal assistance agreement... The establishment of mutual legal assistance between Hong Kong and Taiwan would require Beijing’s authorisation, according to Simon Young, a law professor at the University of Hong Kong. 

     Young said he believed there were many reasons the central government would support such a formal arrangement, citing a criminal cooperation agreement between the mainland and Taiwan that was implemented in 2009 and had been successful.“I think it is in everyone’s interest to try to negotiate a workable cooperation framework between the mainland, Hong Kong, Macau and Taiwan,” he said. 

    But the legal scholar noted there could be some difficulties in working out a cooperation framework as Taiwan employs the death penalty while Hong Kong does not. 

     Albert Chen Hung-yee, another legal professor at HKU, was less optimistic. Chen said while it would be best for the city to establish an extradition arrangement with Taiwan, such a move would be unlikely. “Even between Hong Kong and the mainland, there is no formal extradition arrangement, so establishing one with Taiwan would be quite difficult,” he said.  Click here to read full article.

Michael Davis Interviewed on Taiwan Election, China and Hong Kong (Christian Science Monitor)

"For Hong Kong democrats, a deeper resonance in Taiwan's orderly election"
Robert Marquand
The Christian Science Monitor
21 January 2016

In the weeks ahead of Taiwan’s Jan. 16 elections, Yueng Wen estimates that “nearly half” his student friends went from Hong Kong to Taipei. They watched, participated, tweeted and got to know every detail of the voting, which saw Taiwanese elect their first female president, Tsai Ing-wen, and deliver a knockout blow to the long-ruling Nationalist Party (KMT).

    Mr. Wen, a slender graduate student at Hong Kong University, took part in mass protests in 2014 to demand free and fair elections in this former British colony. Like many residents, he worries that Hong Kong, which reverted to Chinese rule in 1997, is losing its distinct identity and freedoms as Beijing asserts tighter control.

     “We really appreciate the Taiwan elections,” Wen says. “I am skeptical of both political camps there and it would take me 30 minutes to tell you why. But what we appreciate is choice. Taiwanese have a real choice, and we in Hong Kong do not.”

     For years, Hong Kong and Taiwan have lived in largely separate realms and have not paid much attention to each other. Beijing has not encouraged any official ties between the two entities, one of which it rules under special laws of autonomy (Hong Kong), and one of which it claims (Taiwan). Hong Kong chief executives do not visit Taiwan; official traffic from Taiwan to Hong Kong has mostly included city mayors.

     Yet in the past three years, youth in Hong Kong and Taiwan are being drawn together, online and in person, by shared interests that revolve around Chinese politics and their own future. They are meeting, holding conferences, and for the first time sharing insights into how their own leaders are dealing with superpower China.

     In Hong Kong last weekend one of the most-read tweets came from Taiwanese rocker-turned-politician Freddy Lim: “Don’t let Taiwan’s future be like Hong Kong’s present.”

      Mr. Lim’s politics emerged out of Taiwan’s student-led “Sunflower movement” that staged a weeks-long sit-in in 2014 of government buildings in Taipei to protest trade deals with China that the KMT was trying to enact in ways that students said lacked transparency. His political party, formed in November, now holds five seats in that legislature.

     In Hong Kong, Taiwan’s elections came amid fears over the apparent abduction of five members of a publishing firm and bookstore that specializes in gossipy accounts of Chinese politics. One was later paraded on Chinese TV making a confession. The Global Times, a hawkish Chinese newspaper, commented that it was “not only reasonable but legal” to investigate the company because it had undermined China’s “rule of law system.” 

'One country, two systems'

      The "one country two systems" formula by which China has ruled Hong Kong since 1997 was initially conceived as the formula by which China would someday govern Taiwan, according to Hong Kong University law professor Michael Davis.

      “China’s heavy handed policies – the abduction of the bookseller is one example – are driving Hong Kong and Taiwan into each other’s arms,” says Prof. Davis, who is active in human rights and democracy groups. “For Taiwanese it says, look at what “one country two systems” actually looks like. We don’t want any part of it.”

       For the democratic camp in Hong Kong that seeks freer elections including a direct vote for its leader, Taiwan’s orderly and peaceful election serves as a counter to the Chinese Communist Party’s oft-stated message that democracy breeds instability... Click here to read the full article.