Ryan Whalen on Continuing Hong Kong’s Health ‘Emergency’ Risks Public Trust (SCMP: Letter)

Letters | "Continuing Hong Kong’s health ‘emergency’ risks public trust"
Whalen Ryan
SCMP
8 February 2023

Introduction: The government is to be commended for reopening Hong Kong, rolling back most pandemic-related restrictions, and welcoming the world to come and visit again. However, there is one major legal omission in our return to normalcy. Hong Kong legally remains in a state of public health emergency. This state of emergency provides the government with a variety of powers under the Prevention and Control of Disease Ordinance (Cap 599).

     Despite our current legal state of emergency, it is clear to most observers that the emergency has passed. This is true whether one takes a layperson’s definition, or that provided in Cap 599.
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Thomas Yeon & Diana Siu on Judicial Control and Interpretation of Emergency Powers: Lessons from Hong Kong (Oxford U Commonwealth LJ)

"Judicial Control and Interpretation of Emergency Powers: Lessons from Hong Kong"

Thomas Yeon (PCLL 2020) & Diana Siu (JD 2021)
Oxford University Commonwealth Law Journal
Published online: 26 Sep 2021

Abstract: This case note examines the judicial controls on emergency powers established by the Hong Kong Court of Final Appeal in Kwok Wing Hang v Chief Executive in Council [2020] HKCFA 42. It argues that, despite the Court’s promises to the contrary, none of those controls offer a meaningful constraint on the Chief Executive in Council’s power to enact regulations under the Emergency Regulations Ordinance (Cap 241). It also observes that the Court’s flawed articulation of the judicial controls is of cautionary value for courts in the United Kingdom interpreting the Civil Contingencies Act 2004.

Thomas Yeon & Trevor Wan on Comparative Constitutional and Administrative Law in Hong Kong: In Search of Coherence (Public Law)

"Comparative Constitutional and Administrative Law in Hong Kong: In Search of Coherence"

Thomas Yeon (PCLL 2020) and Trevor Wan (BSS(GL)&LLB 5)

Public Law

Published: 1 April 2021

Abstract: This commentary analyses the decision of the Hong Kong Court of First Instance (the court) in Kwok Wing Hang v Chief Executive in Council and critically analyses and evaluates the court’s approach to the limitation of executive powers and the protection of fundamental rights with respect to its approach in citing foreign jurisprudence from the UK, Australia and under the European Convention on Human Rights. The authors argued that while the court’s treatment of constitutional and administrative cases from common law jurisdictions is generally coherent (albeit with room for improvement in dissecting technical details), the court’s approach to Strasbourg jurisprudence is incoherent and fails to appreciate analytical nuances both as a matter of law and fact. A two-step approach will be proposed for Hong Kong courts’ future consideration in adopting constitutional and/or administrative jurisprudence from foreign jurisdictions.  Note that the Court of Final Appeal's decision in this case can be found here.

Stephen Thomson & Eric Ip on COVID-19 Emergency Measures and the Impending Authoritarian Pandemic (J of L & Biosciences)

"COVID-19 emergency measures and the impending authoritarian pandemic"

Stephen Thomson & Eric Ip 

Journal of Law and the Biosciences 

Published 29 September 2020

Abstract: COVID-19 has brought the world grinding to a halt. As of early August 2020, the greatest public health emergency of the century thus far has registered almost 20 million infected people and claimed over 730,000 lives across all inhabited continents, bringing public health systems to their knees, and causing shutdowns of borders and lockdowns of cities, regions, and even nations unprecedented in the modern era. Yet, as this Article demonstrates—with diverse examples drawn from across the world—there are unmistakable regressions into authoritarianism in governmental efforts to contain the virus. Despite the unprecedented nature of this challenge, there is no sound justification for systemic erosion of rights-protective democratic ideals and institutions beyond that which is strictly demanded by the exigencies of the pandemic. A Wuhan-inspired all-or-nothing approach to viral containment sets a dangerous precedent for future pandemics and disasters, with the global copycat response indicating an impending ‘pandemic’ of a different sort, that of authoritarianization. With a gratuitous toll being inflicted on democracy, civil liberties, fundamental freedoms, healthcare ethics, and human dignity, this has the potential to unleash humanitarian crises no less devastating than COVID-19 in the long run.  Click here to read the full article.

Stephen Thomson & Eric Ip on COVID-19 Emergency Measures Hurting Democracy Globally (American J of Public Health)

"COVID-19 Emergency Measures Are Hurting Democracy Globally"

Stephen Thomson & Eric Ip

American Journal of Public Health

Issue 110, Volume 9, p 1356

Published online in August 2020

Abstract: As necessary as effective COVID-19 emergency measures are, governments around the world must never lose sight of the need that a proportionate balance ought to be struck between population health goals on the one hand, and “the fundamental rights and freedoms that are the lifeblood of transparent, accountable, and democratic government”, on the other.

Eric Ip on Hong Kong's COVID-19 Health Regulations (Public Law)

"Hong Kong - the unprecedented promulgation of public health emergency regulations against the COVID-19 outbreak" 

Eric Ip

Public Law

July 2020, pp.580-582

Abstract: Examines the public health emergency regulations passed by Hong Kong in response to the COVID-19 pandemic under the Prevention and Control of Disease Ordinance s.8. Details the scope of the powers, their key features, such as a compulsory quarantine period for new arrivals, and the context in which they were made. Reviews the constitutional principles available to prevent such measures from violating the rule of law, including proportionality.​

Eric Ip on Constitutional Limits on States of Emergency under Article 18(4) of Hong Kong's Basic Law (Public Law)

"Hong Kong - Constitutional Limits on Emergency Powers amid the 2019 Crisis"

Eric C. Ip

Public Law 

2020, Issue 182 

Abstract: This comment discusses the potential invocation of emergency powers by the Standing Committee of the National People's Congress over the Hong Kong Special Administrative Region pursuant to art.18(4) of the Basic Law to combat civil unrest; examines the constitutional and legal limits regarding their application; and demonstrates that art.18(4) or any other provision of the Basic Law offers no lawful authority to the Standing Committee to suspend the Basic Law itself, or the relevant provisions of the International Covenant on Civil and Political Rights as applied to Hong Kong, or the entire common law system of the Region, even temporarily, during a state of emergency.

HKU Class of 2016 Graduates (Law PhD and SJD)

Congratulations to our 14 PhD and 1 SJD graduates who had their degrees conferred upon them at the 196th Congregation on 1 December 2016 at the University of Hong Kong.  The Congregation also saw the graduation of 461 other Faculty of Law students: 24 LLM, 21 LLM in Human Rights, 83 LLM in Corporate & Financial Law, 38 Master of Common Law, 4 LLM in Chinese Law, 27 LLM in Information Technology and Intellectual Property Law, 37 LLM in Arbitration and Dispute Resolution, 38 JD and 189 LLB. The newest members of our RPg alumnae family include the following:

1. Dr Yue LUO, The Myth of Chinese Well-Known Marks: Formation, Debunking and Judicial Practice.  Supervisors: Alice Lee and Po Jen Yap

2. Dr Che Singh KOCHAR-GEORGE, A Disciplinary Model of the Asylum Process: Case Studies from the United Kingdom and Hong Kong.  Supervisors: Simon Young and Kelley Loper

3. Dr Henan HU, Re-examining Territorial Sovereignty in International Law: A New Perspective of the Settlement of the China Sea Disputes.  Supervisors: Hualing Fu and Tony Carty

4. Dr A-Jull LIM, Professional Failure and the Degradation of International Humanitarian Law: Narcissist Responses to the Post 9/11 So-called War on Terrorism.  Supervisor: Hualing Fu

5.  Dr Erick Onyango KOMOLO, Regime Fragmentation and Interaction: A Case Study of Kenya's Marine Fisheries Regulation.  Supervisor: Shahla Ali

6. Dr Huimiao ZHAO, Government Intervention in the Reorganization of Listed Companies in the context of Socialist Market Economy of China.  Supervisors: Xianchu Zhang and Emily Lee

7.  Dr Guy Samuel Charles LIPERT, Consumers and Banks in Dispute - From Litigation to Mediation: How Outlier Consumers and Banks in Hong Kong Engaged in Dispute Resolution in the Wake of GFC.  Supervisors: Shahla Ali and Katherine Lynch

8. Dr Uzma ASHRAF, The Need and Prospects for an Enforcement Mechanism in the Post-crisis Reconstruction of International Financial Regulatory Architecture.  Supervisor: Douglas Arner

9.  Dr Maria Adele CARRAI, A Genealogy of Sovereignty in Modern China, 1840-Today.  Supervisor: Albert Chen

10.  Dr Annelotte Jorien WALSH, A Children's Right Audit of the International Criminal Court.  Supervisor: Scott Veitch

11.  Dr Han ZHU, Social Movements and the Law in Contemporary China: A Comparative Approach.  Supervisor: Albert Chen

12.  Dr Man Lung CHENG, Emergency Powers and the Constitution: A Case Study of the Republic of China (1912-1991).  Supervisor: Albert Chen

13. Dr Anna Eirini BAKA, The Dialectic of the Cave: Self-determination, Constitution and the Phenomenology of Deprivation.  Supervisor: Tony Carty

14.  Dr Wenwen LU, Emergency Powers and Law in China.  Supervisors: Hualing Fu and Tony Carty

15.  Dr Sha LI, Fiction and Human Rights Discourse in China 1897-1927.  Supervisor: Marco Wan.