Hualing Fu on Mass Disputes and China’s Legal System (new book chapter)

"Mass disputes and China’s legal system"
Hualing Fu
in Teresa Wright (ed.), Handbook of Protest and Resistance in China (Elgar 2019) 75-90

Abstract: Since the late 1970s, China’s legal system has evolved via a process of juridification in which legal norms, institutions and actors have been expanding and playing a more meaningful role in creating social, economic and political regulations. However, abiding hallmarks of this system have been the limited space for legal advocacy and constraints on socio-legal mobilization. Through the prism of mass disputes, this chapter analyzes three phases in the development of China’s socialist, authoritarian legal system from the 1990s to 2018, shaped by alternating waves of political liberalization and repression: (1) a brief period of promoting individual rights to underpin economic reforms in the legalistic phase of the 1990s; (2) during the Hu-Wen administration an emphasis on stability and an effort to atomize mass disputes; and (3) a statist approach permitting the articulation of limited grievances through the procuratorate’s selective initiation of Public Interest Litigation in the spheres of environmental and consumer law. The chapter concludes that, notwithstanding some success in defusing mass grievances, the capacity of China’s authoritarian legal system to resolve collective disputes is fundamentally undermined by the weakness of civil society and a lingering suspicion of NGOs.

Hualing Fu on Social Organization of Rights: From Rhetoric to Reality (UCLA Pacific Basin Law Journal)

"Social Organization of Rights: From Rhetoric to Reality"
Hualing Fu
UCLA Pacific Basin Law Journal
2019, Volume 36, Issue 1

Abstract: Public interest litigation (PIL) is a form of socio-legal activism. PIL originated in the United States, and spread, through the aggressive promotion of U.S.-centric rule of law, to China, where it has had a significant impact on socio-legal activism since the 1990s. This Article explores both the process through which human rights discourse is translated into practice by activist lawyers and human rights defenders, as well as the circumstances that cause socio-legal mobilization to fail or succeed. This Article examines the collective and sustained endeavour by human rights lawyers and other activists to advocate for the rights of specific communities through a rights complex, composed of activist lawyers, NGO leaders, and citizen journalists, as well as supporters within state institutions, Chinese society, and the international community. This Article looks at the institutionalized manner through which legal cases facilitate socio-legal mobilization to serve the broader objectives of educating citizens, enhancing the capacity of civil society, and making the government more accountable and responsive. The principal argument is that once citizens are endowed with legal rights and institutions are put in place for their implementation, the remaining issue is raising rights-awareness among rights-bearing citizens and generate demand for rights in society and channel those rights to institutions. Lawyers and other rights defenders play an indispensable bridging function in translating rhetoric to practice.

Can Public Interest Litigation Protect the Natural Environment of Hong Kong? (Karen Kong)

"An Uphill Battle for Sustainable Development: Can Public Interest Litigation Protect the Natural Environment of Hong Kong?"

Karen Kong

Hong Kong Lawyer

November 2015, pp. 32-37

With the rapid increase in major development projects and cross-border infrastructure in Hong Kong, striking a proper balance between economic growth and environmental conservation has become an increasingly challenging task. There is a constant battle between different stakeholders on environmental protection issues.

     When an agreement cannot be reached through the legislative and executive channels, people have resorted to taking the issues to the court. Landmark environmental judicial review cases in recent years include: Harbour Reclamation (2004), Hong Kong-Zhuhai-Macau Bridge (2011), Municipal Wastes Incinerator at Shek Kwu Chau (2014), Artificial Beach in Lung Mei (2014), and the upcoming Airport Third Runway (2015). Such litigation initiated by environmental activists is often referred to as Environmental Public Interest Litigation (“EPIL”).

     EPIL is controversial because many believe that environmental controversies should be dealt with through the legislative and the executive branches, not in the court room. EPIL critics argue that the court should not be a forum to debate policy questions.

     However, it is submitted that, despite its limitations and constraints, EPIL still has an important and legitimate role to play in pursuing sustainable development, in view of a political system that often fails to adequately channel the views of the public to the government... Click here to read the full article.

Karen Kong on Using Public Interest Litigation to Protect the Natural Environment

"The Uphill Battle for Sustainable Development: Can the Use of Public Interest Litigation Protect the Natural Environment in Hong Kong?"

Karen Kong

Asia Pacific Law Review

2015, Vol. 23, No. 1, pp. 7-30

Abstract: This article reviews the development of recent environmental public interest litigation in Hong Kong. Despite substantive time and efforts spent on the litigation, the judicial challenges had limited success in yielding the desired outcome that environmental concern groups had hoped for. Reasons behind are complex, which involve litigation strategies, the state of Hong Kong law on environmental protection and sustainable development, and the courts’ attitude towards public interest cases. The article studies the courts’ reasoning and decisions, with a view to evaluating the use of public interest litigation as a tool of environmental advocacy under the current constitutional and administrative regime in Hong Kong. It argues that, despite its constraints, public interest litigation is an important tool to channel the public’s views on the protection of the environment. The article recommends principles to be used in future environmental judicial review, including a purposive approach to interpretation of environmental legislation, with reference to human rights in evaluating environmental issues. Further, litigation is not the sole solution and it needs to be complemented with more up-to-date legislation and environmental standards.  Full text can be download from Lexis.com.

Congratulations to RGC Research Grant Awardees (Faculty of Law)

Congratulations to Shahla Ali, Antonio Da Roza, Peter Chau, Hualing Fu, Marco Wan and Richard Wu on their successful 2015-2016 General Research Fund grants awarded by Hong Kong's Research Grants Council.  A range of interesting projects are funded including projects on civil mediation reform, unrepresented civil litigants, criminal punishment philosophy, Chinese public interest lawyers, law and film in Hong Kong, and a comparative study in Asia of law students' perception of values.  This year's excellent results represent a success rate of 55 per cent and a total amount of funding of more than HK$3.6 million.