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The Canadian Charter of Rights and Freedoms in Hong Kong Jurisprudence

In my current research, I am trying to understand the influence of the Canadian Charter in Hong Kong’s development of human rights jurisprudence after returning to China in 1997.  The prospects for migration were strong, though not because constitutional text had been transplanted.  Canadians were involved in the early days of the Hong Kong Bill of Rights, which was essentially a transplant of the International Covenant on Civil and Political Rights in 1991.  There was a kind of Charter euphoria in early Bill of Rights cases at least until 1993 when Lord Woolf’s criticisms of the Oakes test in Lee Kwong Kut [1993] AC 951 (PC) made Hong Kong courts a little more critical.  The post-1997 constitution, the Basic Law, had comparativism built-in, and the mechanism allowing foreign judges to sit on its new Court of Final Appeal (CFA) meant that Hong Kong would continue to look outwards for jurisprudential inspiration. 
             Thus it was of little surprise to find from a review of post-1997 decisions that when Charter law was cited (in over 40 cases) it was generally treated positively or neutrally by Hong Kong courts.  There were only a few instances when Charter law was explicitly rejected and these were generally cases in which the Supreme Court of Canada (SCC) judges were themselves divided.  The Hong Kong courts were not prepared to take self-incrimination law as far as it had been taken in R v Noble [1997] 1 SCR 874 and R v Henry [2005] 3 SCR 609.   Nor was the CFA prepared to follow the stringent s. 7 review of absolute liability for underage sex offences, seen in R v Nguyen; R v Hess [1990] 2 SCR 906.  But in the other direction, Charter law has been cited positively in many areas including constitutional remedies (given the common power to strike down), restrictions test, legal certainty, freedom of expression, freedom of thought, equality, right to vote, right to counsel, fair trial rights, right to silence, language rights, and freedom from cruel, inhuman or degrading punishment. 
There are signs however that Charter law is becoming less persuasive in Hong Kong.  Of the 70 CFA human rights decisions, only 15 (or 21 per cent) cited Charter case law, of which 10 showed positive treatment.  And in the 14 rights cases decided in the past two years, only two Charter decisions were cited.  
I try to explain these findings of impact by reference to five variables affecting the migration of Charter ideas.  First, Charter law has been competing for influence in a growing and now substantial global marketplace of human rights law.  Second, the rise of UK and European human rights law has had a distinct advantage in this competition for influence in Hong Kong given continued strong ties to the English legal system.  Close examination of some English cases show, however, that they were themselves influenced by Charter jurisprudence, e.g. entrapment.  Also where English law is undeveloped, e.g. constitutional remedies, Canadian law has been more influential.  Third, there is an increasing trend towards more indigenous approaches to rights.  This is due to constitutional problems unique to Hong Kong (e.g. right of abode cases) or the tendency to develop a distinct approach having canvassed different and varied common law approaches.  This latter phenomenon is what I describe as the ‘common law melting pot’ effect of Hong Kong jurisprudence.  Fourth and fifth are the variables of the intrinsic qualities of Charter decisions and the degree of exposure of Hong Kong judges to Charter law.  While the first three variables tend towards less Charter migration, the last two under certain conditions could reverse that trend. 

Professor Simon NM Young is Director of the Centre for Comparative and Public Law, Faculty of Law, University of Hong Kong

Posted by Ran Hirschl



Moving, Merging!

We have an important announcement to make about the blog at We’ve decided to join forces with the International Journal of Constitutional Law (I-CON) to produce a new website called, appropriately, I-Connect. Working with the leading journal of comparative constitutional law will give us access to new audiences, new voices, and new sources of expertise. We invite you to take a look at the new site at

As always, we welcome submissions of content. You can contact the editors at that site if you’d like to participate.

Finally, the website will remain in place and will itself be rolling out new features periodically. We hope you’ll stay tuned!


We review the Icelandic draft constitution

On the heels of an extraordinarily interesting experiment in constitutional design by crowdsourcing, Iceland is headed to the polls a week from today to test the public's reaction to the draft constitution.  This draft is a proposed revision of the 1944 document, which was motivated in part by recent economic instability.

The non-binding referendum will include six questions, which ask voters for their general opinion of the draft as well as their opinion of particular elements such as the provision for natural resources, the role of the church, the electoral system for the legislature, and a provision regarding national referenda on legislation.

The authors of the Comparative Constitutions Project (Zach Elkins, Tom Ginsburg, and James Melton), reviewed the draft constitution in this report.  Our focus is on identifying novel or atypical elements of the draft and situating the draft’s provisions with respect to those of both current and historical constitutions, including the Icelandic document of 1944.

Again, the .pdf version of our review of the crowdsourced draft constitution is here.



Pakistan Supreme Court proceedings against former President Zardari; Philippines Supreme Court and cyberspeech

A couple of constitutional court news items ...  

-- The Pakistan Supreme Court and government of Pakistan appear to be finally moving toward resolution of the Court's efforts to quash the amnesty granted to former President Zardari and others.  The Court is attempting to clear the way for Swiss prosecutors to pursue Zardari on money-laundering charges.  After convicting former Prime Minister Gilani of contempt for refusing to send a letter to Switzerland about the charges against Zardari, the Court and the Ashraf government have finally agreed on a draft of a letter.  The Telegraph (UK) has coverage here; there is also CNN coverage and a story in the Hindustan Times.

-- The Philippines Supreme Court has enjoined enforcement of a new law that would, inter alia, make online libel punishable by up to 12 years imprisonment.  The law has been enjoined on freedom of expression grounds.  Local coverage here.  



Fatherland, Socialism or Death

Yesterday a new article of mine came out in Foreign Policy on some of the possible contingencies  for the upcoming Venezuelan Elections. An earlier version of the piece, which the FP editors felt may be a bit too legalistic and technical for their purposes, was just the sort of thing which I suspect might be of more interest to readers here on  since legalities and technicalities are much of what we're all about. I am posting it below.

The Foreign Policy version (which ended up being almost entirely different) can be found at the following link.

Fatherland, Socialism or Death:
How far might Hugo Chávez be willing to go to preserve his revolution?  

In January 2007, after being sworn in as president of Venezuela for the third consecutive time, a beaming Hugo Chávez made a promise to his supporters: “I vow by Jesus Christ,” he told them, “Fatherland, Socialism or Death. I swear it.”  

Now, nearly six years later, with his own health dipping and a newly emboldened opposition set to give him his greatest electoral challenge to date, the World can’t help but wonder: in vowing to defend his revolution with his life was El Comandante merely slipping into his trademark rhetorical bombast or was it something deeper? And, if the latter, what might this mean for the Venezuelan people if they decide that they have lost faith?

On paper Chávez’s personal willingness to step down should be irrelevant as Venezuela, at least in theory, possess one of the most independent electoral systems in the world. The 1999 Constitution is somewhat unusual in that it delineates five separate (and nominally equal) authorities to the government. Beyond the usual executive, legislative and judicial branches it establishes an independent “electoral branch:” an apolitical authority empowered to impartially police the electoral process, tabulate results and announce an eventual winner.

Yet, in practice, constitutional design and reality diverged long ago in Venezuela, and the president’s personal influence is so pervasive as to essentially control every national institution and tendril of governance. For example, Luisa Estela Morales, the presiding magistrate of the Venezuelan Supreme Court, has publically proclaimed her belief that separation of powers “unacceptably weakened the state” despite the constitution’s clear indications to the contrary.

Similarly, four of the five magistrates of the Consejo Nacional Electoral (CNE), the electoral authority, are avowed and loyal supporters of the president and have shown themselves to be far from impartial in practice. During this and other electoral campaigns they have habitually turned a blind eye to countless illegalities and abuses on the part of the government; including the decorating of state buildings with campaign material, the misappropriation of state funds for campaign use, rampant gerrymandering, misuse of emergency powers to commandeer radio and television signals for campaign messaging, and the de facto disenfranchising of Venezuelan émigrés (most of them opponents of the regime) through the closing of the Miami Consulate. Yet while allowing the government veritable carte blanche, the CNE has oft been ready to obstruct the opposition such as their recently censure of Henrique Capriles Radonski, the opposition candidate, for wearing a hat designed after the official flag of the republic.

Thus far the opposition has begrudgingly shrugged off this favoritism, downplaying CNE obstruction where possible in the hopes of keeping Venezuelans excited about the election, and galvanized to vote. There is some internal concern among some opposition leaders however that by thus ignoring the elephant in the room – that the government may simply misrepresent or disregard an unwelcome electoral outcome – they may not be adequately preparing their supporters for such an eventuality.

One high-ranking opposition leader, who preferred he not be named, expressed to me privately his concern that:

“By pretending that this is a normal election and that every vote will be counted, we are giving Chávez the ability to steal the election on a silver platter... If we have been saying all along: ‘go ahead and vote, your vote will matter.’ And then, following an announcement of our defeat, turn around and say ‘so it seems your vote didn't matter and they stole it!’ What then? Will we be taken seriously internationally? What about domestically?”

A good question…

Of course when it comes to the democratic process there may be no better predictor than the past. For example, expect Cuban elections to be rigged, primarily because they always have been so, while as regards Canadian elections we have been primed to expect the opposite. Yet in this regard, Venezuela is in something of a grey area: while pre-electoral hijinks, abuses, and improprieties are nothing new, dating back to long before Chávez, there have been no clear cases of voter fraud, deliberate miscounting, or of a government refusing to acknowledge results at least since the advent of Venezuelan popular democracy in the late 1950s. In fact, the country’s last unelected dictator, Marcos Pérez Jiménez, was himself overthrown due in no small part to a his disavowal of an unfavorable referendum result over a new constitution, the sheer brazenness of which was instrumental in sparking large-scale popular protests and eventually costing him the loyalty of the armed forces.

Yet despite the fate of Pérez Jiménez, there is considerable circumstantial evidence that, under the current regime, electoral fraud would not be entirely off the table should the presidency be at stake. When, during the 2007 vote to abolish constitutional term limits, Chávez’s government came up short in the vote, the electoral authorities inexplicably demurred for nearly eight hours prior to announcing the results; despite near-instant tabulation systems and some of the modern voting equipment in the world.

According to Yon Goicoechea, a Venezuelan pro-democracy activist and perhaps the most visible opposition leader during Chávez’s 2007 electoral defeat, the government made no secret to him during this time that it was holding meetings behind closed doors while electoral authorities, military leaders and presidential agents “figured things out.” He further claims to have been personally approached by government officials on multiple occasions during this period to “negotiate.”  While eventually ceding victory, the electoral authorities have to date refused to release the actual tabulated voting results raising the compelling possibility that the government’s decision may have been influenced by more technical concerns in the case that a large margin of loss would have rendered fraud more difficult in a practical sense.

More recently, when the 2010 parliamentary elections delivered a majority of the popular vote to non-Chávez backed candidates; another mysterious multi-hour lag took place. In fact, if one compares the outcomes of elections to the time it has taken the government to announce an “irreversible” result – at least during the eight years that the CNE has existed in roughly its current form – an interesting pattern begins to emerge:

First Announcement
2005 Parliamentary
Chávez wins – running largely unopposed due to opposition boycott
9:45 PM
2006 Presidential
Chávez wins - 63% of the popular vote
10:00 PM
2007 Constitutional Reform
Opposition wins - at least 51%, final results never publicized officially
1:30 AM (following day)
2008 Regional
Chávez wins in 18/22 states. Opposition wins control of most populous areas including Caracas, Maracaibo and Valencia
11:40 PM
2009 Constitutional Reform
Chávez 55%
9:30 PM
2010 Parliamentary
Opposition wins 51% of popular vote, although gerrymandered districting prior to the lection results in only 66 seats out of 144, sufficient only to break supermajority
2 AM (following day)


Keeping in mind this inverse correlation between CNE expediency and result favorability (from a government perspective), in conjunction with Goicoechea’s account, it seems likely that some kind of cost benefit analysis is indeed taking place. That an “independent” authority should feel the need to do this at all likewise highlights the degree to which the decision to accept or not accept, modify or disavow the results of this election is dependent on the president himself and his allies: if not, why not announce immediately?

Therein lies the problem. In previous cases where the CNE eventually accepted unwelcome electoral results, the outcome in question – ie., scrapping term limits, or supermajority requirements – could be (and eventually were) brought about later through alternate means. Yet while in 2007 Chávez could accept a temporary setback, garnishing his democratic credentials while preserving his political capital, his current health problems and Capriles’ promises to dismantle Chávez’s revolution should he be inaugurated, render this type of long-term strategic planning unlikely to carry much weight at present.

With a closely-controlled CNE and a green light from the president himself unlikely to be forthcoming, the likeliest outcomes for October 7th would be either a fairly-tabulated Chávez victory or else a stolen election. The challenge for the opposition then will likely lie in telling these two outcomes apart, and deciding what to do about it should they come to believe the latter. According to Goicoechea, had the electoral authorities refused to acknowledge the government’s defeat in 2007: “we were prepared to call the Venezuelan people to the streets to defend their votes.” In his view, Capriles, whom he describes as a strong but responsible leader, would almost certainly be willing to do likewise “but first he would have to know with certainty.”

Yet such knowledge may indeed prove difficult to come by, for while the opposition has done much to secure its access to electoral information, only the CNE itself would be privy to the exact vote counts. This would leave the opposition dependent on more subjective metrics such as exit polling, observer testimonials and the vastly disparate pre-election polls. Likewise, even if the opposition were confident enough in the results so as to call its supporters “to the streets” it is uncertain whether the great crowds that have previously rallied in support of Capriles would still do so should the government suspend constitutional safety guarantees or implement martial law. Yet the throngs of enthusiastic supporters that rallied around the opposition candidate during the closing of his campaign in Caracas on Sunday served, to some, as evidence that among his followers, for now at least, loyalty runs quite deep.

Either way, the opposition leadership may feel they have little choice but to attempt a destabilizing mass protest. With passions running high, it seems unlikely that the opposition could simply wait out such a failure without risking massive disillusion among their supporters. Likewise with the U.S. otherwise distracted by Middle East unrest, Spain bankrupt, Colombia counting on Chávez in upcoming negotiations with the FARC, and Brazilian relations recently strained by an alleged indigenous massacre, the prospects for substantial support from the international community must  seem pretty bleak.

Indeed Chávez has already begun to prepare his own supporters for just such an eventuality, likewise offering a series of cryptic warnings to the opposition that chaos and even civil war might result from his loss.

Recently, former US Ambassador to Venezuela Patrick Duddy released a policy paper through the Council on Foreign Relations outlining possible contingencies for the October 7th in Venezuela. The report claimed that: “...if the public suspects that Chávez has used extra-constitutional means to preclude or invalidate an opposition victory in order to sustain his regime's hold on power… protests over such actions, which could turn violent, may in turn lead to the imposition of martial law and the further curtailment of democratic rights in Venezuela. This would almost certainly trigger a major political crisis in the Western Hemisphere…”

Unfortunately, were such a confrontation to take place, martial law and reduced freedoms might be the least of it. The worse danger might lie in possible conflict between civilian supporters of either camp. Should victorious Chavistas gathering for their traditional post-election celebration outside of the presidential palace, only to find themselves face-to-face with opposition protesters demanding a reversal and “defending” their vote, the potential for violence cannot, in my estimation, be overstated. Deep-seeded animosity already exists between the civilian support networks of both camps as was recently illustrated through the spat of campaigning violence in the seaside town of Puerto Cabello. 

Should this type of worse case scenario come to pass, the restoration of order would depend on the Venezuelan Armed Forces, as in all likelihood would any final decision regarding the contested election itself. Once involved however, it is difficult to know ex ante what the military may do. Unlike other national institutions like the CNE or the courts, whose support for the government is reflexive and can be assumed the Armed Forces are a bit of a black box. While two years ago, Henry Rangel Silva, a high ranking General and defense minister, went on record a few years ago as saying the army was strongly supportive of President Chávez’s administration and would find it “difficult to accept a change in government” more recent comments by Willmer Barrientos, the current head of military operations made an announcement to the effect that among the army, neutrality would indeed be upheld regardless of the outcome.

Mixed messages such as these from among the Armed forces leadership may represent actual divisions within the ranks. While Chávez has been careful to cultivate the support of the top brass, there is little certainty as to how much control these would be able to exert over middle-ranking officers; traditionally the key factor in Venezuelan military interventions as seen in Pérez Jiménez’s initial seizure of power as well as the aborted coups led by (and against) Chávez himself in 1992 and 2002 respectively.

In a moment of frustration, Simon Bolivar (Venezuela’s first president and Chávez’s personal idol) is said to have lamented of his then splintering empire that while Colombia was a university and Ecuador a convent, Venezuela was more of a barracks. Nearly two hundred years later, it seems a real possible that the choice of his next successor may indeed be decided in one.

Perhaps “Socialism, or democracy or death” would have been more appropriate…



Venezuelan Elections/FP

I recently did an analysis on the upcoming Venezuelan elections for Foreign Policy. Although some interesting observations on the possible effects of constitutionally mandated voter participation laws failed to make it past the cutting room floor, I suspect it may still be of interest to the readers of this blog.

"Even within a region justly famous for its magical realism, Venezuela can seem particularly incomprehensible to outsiders. This is a nation of bellicose rhetoric that has not gone to war since its independence, where oil rents are lavished on foreign allies despite obscene domestic poverty, and where fervent baseball fans decked in blue jeans routinely decry the evils of American cultural imperialism. Yet even by Venezuelan standards, the events leading up to the October 7 presidential election have been strange..."

Continues at:



Pussy Riot: when “disproportionate” is inappropriate

Shortly after a Moscow court sentenced the three female rock musicians from Pussy Riot to two years in a penal colony for ‘hooliganism,’ the United States Embassy in Russia sent off the following disapproving tweet: "Today's verdict in the Pussy Riot case looks disproportionate.”

While any official criticism of this latest Muscovite miscarriage of justice is likely deserving of praise; it is unfortunate that by focusing on the proportionality of the sentence itself, as oppose to the Kafkaesque nature of the trial leading up to it, attention may be drawn away from what should be the primary takeaway - the sorry state of rule of law in Russia today.

Proportionality and legality are very different animals. A punishment can be draconian while remaining legally legitimate, or else be comparatively light and yet constitute a train wreck as regards procedural fairness, constitutionality and due process considerations. In determining what is proportional people rely on a series of subjective assumptions and value judgments through which to gauge the severity of crimes relative to punishments, and perspectives are likely to vary greatly between different cultures, legal traditions and generations. In contrast, legality stems from a government’s ability to fairly apply its own rules to a given situation, drawing upon numerous human rights treaties, international protocols and codified norms as to what such fair application should resemble in practice.

In 1994, an American teenager named Michael Fay was convicted of vandalism in Singapore and sentenced to be caned: a particularly cruel type of corporal punishment that often leaves permanent scars and requires subsequent medical attention. Following the verdict, Ralph Boyce, a spokesman for the United States Embassy criticized the sentence for its "large discrepancy between the offense and the punishment.”

While the Embassy statements may seem to echo one another, the cases themselves could not be more different. Singapore’s judicial system, despite its harsh punishments, consistently ranks among the top five countries in the world as regards transparency, judicial independence, and procedural adherence to formality according to the Global Competiveness Index and the World Justice Report. Likewise Fay had committed a clearly defined and apolitical crime where tangible, albeit minor, damage to property had occurred.  As such, criticism of Fay’s sentencing  (eventually reduced from six strikes to four in the name of international goodwill) had to be based on ‘proportionality’ because the Singapore court’s application of its own laws as written was essentially beyond reproach.

This 'harsh but fair' characterization cannot be applied Russia however, and the trial of the three musicians constituted a veritable parade of rights violations and legal impropriety.

The offense itself involved an incident in February of this year when Pussy Riot gave a ‘spontaneous’ performance upon the altar of the Cathedral of Christ the Savior in Moscow. Mimicking a traditional Russian Orthodox religious liturgy, liberally peppered with curse words and insults towards the Russian Patriarch, the display was apparently motivated by band concerns regarding Putin’s reelection and his regime’s close relationship to Church authorities despite the constitution’s mandated separation between the state and organized religion.

Freedom of speech and expression are constitutionally protected by Article 29 of Russia’s 1993 Constitution, except in cases where “propaganda or campaigning” incite “social, racial, national or religious hatred and strife.”  Whether the band’s theatrics can be rightfully considered to be propaganda or campaigning and, if so, whether that behavior was tantamount to “inciting” hatred (thus excepting it from constitutional protection) should have been a bit of a stretch although the court clearly found otherwise.

Blasphemy itself is not criminalized under Russian law there was a readily applicable statute under which the band could have been prosecuted for creating an offensive and inappropriate public disturbance. The potential penalties for conviction on these charges, fines and community service, were themselves deemed disproportionate by prosecutors for application to critics the regime however, and the band members were charged under Article 213.2 of the Russian Criminal Code: a prohibition of extremist attacks against religious or ethnic groups.  

While, under the statute, such “hooliganism” is punishable by up to seven years in prison, the law itself is clearly worded so to apply only to crimes involving ”vandalism, material damage, or personal injury.” As none of these necessary conditions had been met, Judge Marina Syrova accepted a rather spurious argument that since prayers in a Russian Cathedral may only be given by an ordained priest, the violation of canonical prohibitions against lay prayers constituted a defacement of church protocol, and were thus sufficient for render the spectacle analogous to physical vandalism or assault.

The conviction of the Pussy Riot band-members for what should have been a protected, if distasteful, display of artistic political dissidence required a staggering degree of departure from the stated norms of the Russian legal system. This subjugation of judicial process to the whims and vendettas of the governing regime would be deeply troubling under any circumstances but is particularly so given the proclivity for political farce and sham trials under the former Soviet Union.

In our age of cell phone cameras, bloggers, international human rights watchdogs and globalization, autocrats are reinventing themselves for the 21st Century in the hopes of being able to garner legitimacy while at once maintaining control. To do so they are applying ever more complex legal veneers and artful justifications to disguise what is otherwise blatant dissident suppression. And, unfortunately for the Russian people, when it comes to these sorts of sleight-of-hand Vladimir Putin is a master.


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