BY BRIGID MCMANUS

Between 25 and 27 June, Hong Kong University hosted the 2018 conference of the International Society of Public Law (ICON-S). The conference was held to coincide with the 50th anniversary of Hong Kong University’s law faculty, one of the foremost law faculties in Asia. As in previous years, the conference attracted participants from across the world – over 700 in total. This year marked the first time since the Society’s foundation in 2013 that its annual meeting has taken place outside of Europe and North America. As might be expected, it drew an unprecedented number of participants from the Asia-Pacific region, creating an opportunity for a more diverse range of voices to be heard and new legal issues and perspectives to be explored. Reflecting the nature of the concerns at the centre of Asian public law, and the challenges it faces, the conference’s theme was “Identity, Security, Democracy: Challenges for Public Law”.

The conference began by considering the role of the judiciary in addressing these challenges, a focus which in many ways framed the discussions to take place over the next three days. Chief Justice Geoffrey Ma of the Hong Kong Court of Final Appeal delivered the opening address, offering deep reflections on the role that the judiciary can play in building and maintaining the rule of law. Lord Neuberger, former President of the Supreme Court of the United Kingdom and a non-permanent justice of the Hong Kong Court of Final Appeal, then delivered the keynote, describing the constitutional function of the judiciary as that of protecting citizens against the state.

These remarks, and the conference’s broader theme, took on particular significance in light of Hong Kong’s own legal challenges. The issues Hong Kong currently faces were a frequent subject of discussion, firmly grounding the conference within its local context and promoting deep engagement with the issues arising from it. Panels explored whether, under a “one country, two systems” model, Hong Kong can maintain its jurisprudential distinctiveness and what the model means for the rule of law in Hong Kong, particularly in light of recent controversies surrounding oath taking and the disqualification of electoral candidates. Many of the papers also explored issues with broader resonance, such as subnational constitutionalism, the threat to the rule of law posed by security-based arguments, and the role of electoral politics in sustaining judicial independence.

In fact, it became clear over the course of the conference’s three plenary panels and impressive 174 concurring panels that the challenges arising from the focal points of identity, security, and democracy are undoubtedly global in nature. One of the key themes which resonated, not only in Hong Kong and Asia more broadly, but across Europe and America was the fragility of constitutional democracy and the growing threat of democratic backsliding, due in part to the rise of political populism. Democratic backsliding, as described in one panel, is

an incremental process where the governing powers in a state use legal, political, and public opinion tools to create a gradual change in its constitutional system, by undermining the liberal democratic characteristics of the system and replacing them with authoritarian ones, with the ultimate goal of achieving a deep and lasting change in the constitutional system of the state.

Questions such as how best to protect judicial independence, how to ensure that courts strengthen democratic governance, and the features contributing to democratic crises arose across a number of panels and in reference to a range of political contexts. The second plenary panel, entitled “Courts and Democracy”, explored these issues in depth. Justice Ilwon Kang of the Constitutional Court of Korea discussed that court’s role in Korea’s democratisation while Professor Lin Tzu-Yi of Academia Sinica, Taipei considered the claims of judicial activism levelled at the Constitutional Court of Taiwan. Taking a broader approach, Professor Kim Lane Scheppele of Princeton University considered the attempt of populist governments in Hungary and Poland to stymie judicial independence. Professor Scheppele’s presentation in particular demonstrates the incredible prescience of these questions in the current political environment.

As Professor Scheppele spoke, the European Commission was in the process of conducting an unprecedented hearing into Poland’s alleged failure to respect democratic norms, marking what is considered to be the first time that a European Union member state has been subject to hearing over the strength of its democratic institutions. The focus of this hearing was legislation passed in January which lowered the mandatory retirement age of Supreme Court judges from 70 to 65. This law was due to come into force the week following the conference and would, in effect, require the retirement of 27 of the 74 judges serving on the Court. It would also allow the government to expand the size of the bench to 120, giving the populist right-wing Law and Justice Party the power to appoint almost two thirds of Supreme Court judges.

The weeks since the conference have seen a number of important developments. On 2 July, the European Commission announced that would be sending a formal letter of notice to Poland for failing to fulfil its obligations under Article 19(1) of the Treaty on European Union, which prohibits discrimination. On 3 July, the law lowering the judicial retirement age took effect. The President of the Supreme Court, Małgorzata Gersdorf, refused to retire as required and has continued to work since that point. However, the most recent news reports ominously indicate the possibility that police may “forcibly retire” those judges who refuse to leave voluntarily.

Meanwhile, in the United States Justice Anthony Kennedy announced his retirement, giving President Trump the power to cement a conservative majority on the court. Justice Kennedy has long been regarded as holding the swing vote on a number of important issues, abortion rights being one of the most discussed examples. On 10 July, President Trump announced Brett Kavanaugh as his nominee for the Supreme Court. This is likely to carry significant consequences, not in the least because Kavanaugh has expressed doubt regarding whether a president can be criminally indicted and tried while in office. This is seen as a possible indication of the position Kavanaugh may take should questions arising from Trump’s alleged collusion with Russia over the 2016 election come before the court. Such a position has clear ramifications in terms of its potential to undermine the principle of government under law, a stalwart feature of liberal democracies, with potentially chilling effects.

The conference provided a forum to not only consider these pressing threats but also the mechanisms and tools by which they may be addressed, reaffirming the importance of an international dialogue in developing solutions. Its focus on identity, security, and democracy was also given expression through plenary sessions exploring diversity and human rights and the impact of technology on public law.  Of course, a conference of this size also allows for discussions that take a more narrow focus. A number of concurring panels considered the issue of identity by examining the issues facing women, migrants, refugees, and LGBT identifying peoples. Others gave expression to the focus on security by grappling with questions around cyber security and technology-based privacy concerns. Together, panels such as these facilitate a rich exchange of ideas around how public law can, and should, develop in response to the challenges posed by global economic, technological, social, and ideological forces.

This conference marked the last to take place under the co-presidency of Professors Gráinne De Búrca and Ran Hirschl, who have held the position since 2015. Professors De Búrca and Hirschl have done much to foster diversity and the exploration of new legal issues over the course of their tenure. This conference is a testament to their success in that respect. The opportunity it provided to hear from a diverse range of voices and engage with local legal issues was not only exciting and stimulating but encouraged a richer and more complex understanding of public law. The incoming co-presidents, Professor Lorenzo Casini of IMT School for Advanced Studies, Lucca and UNSW’s very own Professor Rosalind Dixon, have announced that the Society will continue to forge new ground next year when the annual conference is held in Santiago. I have no doubt that this will prove to be an equally enriching experience.

 

Brigid McManus is researcher to Justice Beazley, President of the New South Wales Court of Appeal.

Suggested citation:  Brigid McManus, ‘ICON-S Conference Roundup – Identity, Security, Democracy: Challenges for Public Law’ on AUSPUBLAW  (30 July 2018) <https://auspublaw.org/2018/07/icons-conference-roundup/>