ALSA MAGAZINEJANUARY 2013

ISSUE NO.1

ASIAN LAW STUDENTS’ ASSOCIATION

The association’s history can be traced back to the establishment of dif-ferent law organizations between the 1980s to 1990s, which were the predecessors of today’s Asian Law Students’ Association or ALSA.

In 1989, a group of law students from Indonesia, Malaysia, Philippines, Singapore, and Thailand, came together with the idea creating an organi-zation that could promote greater understanding and appreciation of the different legal systems among ASEAN member countries, as well as foster better relations among the last students of the said nations. As a result, the ASEAN Law Students’ Association was born. A few years later, it was this same spirit that empowered law students from Japan, Korea, and Taiwan to come together in 1996 to form a similar organization for East Asian law

students, under the name of Asian Law Students’ Association. At this time, Hong Kong also had its own initial organization catering to sim-ilar educational and social needs of its students within its territory.

With the growing desire of these different groups to expand their net-works and develop the law student community in the Asian region, an agreement was signed on September 7, 2002 which marked the union between the ASEAN Law Students’ Organization (Indonesia, Malaysia, Philippines, Singapore, and Thailand) and the Asian Law Students’ Organization (Japan, Korea, Taiwan) into one single entity, thus giving birth to ALSA as it is known today. The new merger was implemented in 2003 at the ALSA Conference in Bangkok, Thailand, along with the enrolment of China and Hong Kong as members. Since then, more Asian countries have joined, the newest ones being Laos and Vietnam, who were admitted as full members in August 2012.

ALSA hopes to welcome more countries into the association, with observer groups now formed in India and Sri Lanka. In ad-dition to this, it aims to establish morepartnerships with vari-ous academic institutions, NGOs and government agencies as part of the goal of empowering and developing law students into becoming the future movers, innovators, and leaders in Asia.

Table of Contents

$/6$�,QWHUQDWLRQDO�%RDUG�2IÀFHUV������������������������������������������������������������������IB Corner..........................................................................................................3National Chapters Feature Activities...............................................................5ALSA Japan Academic Interaction ALSA Singapore Study TripsALSA Malaysia ALSA International Conference 2012Great project created by an ALSA observer, Sri Lanka...................................9Taiwan EMCC Regional Moot.......................................................................11ALSA Forum Thailand 2012..........................................................................13AF Forum Philippines 2013...........................................................................15Winner of the Hong kong Law Review Competition 2012..........................16Protecting Hong Kong’s Natural ResourcesThe Article contributed by ALSA Indonesia..................................................23International Board shoutouts.........................................................................26Contact Us......................................................................................................27

My Dearest ALSAians,

It is with great pride and joy that I introduce to your our new ALSA newsletter!

An American author, Nicholas Denmon once said, “Things worth telling – take time.” Indeed, it can be safely said that the story of ALSA is one that has taken years to create, and is by no means ÀQLVKHG��HDFK�DQG�HYHU\�RQH�RI�XV�WRGD\�²�ZKHWKHU�ZH�UHDOL]H�LW�RU�QRW�²�LV�SOD\LQJ�D�SDUW�LQ�ZULWLQJ�this novel that future generations will one day recall.

As we mark our 10th year anniversary, ALSA has indeed come a long way from its humble begin-nings as a small gathering of law students that came together with a vision to form an association that would serve as an avenue for molding a new breed of future Asian lawyers. Since then, our organization has grown into the region’s premiere law student organization, currently composed of thousands of members from 13 nations and 2 observer groups. Through the years ALSA has also successfully fostered partnerships with different companies, government institutions, and other international law organizations at both the national and international level, which have been instru-mental in the providing learning opportunities for our members.

Despite these successes, it is important for us to continuously strive towards further institutional growth and development. This newsletter marks another milestone for ALSA, as through this publication we hope to inform and update both members and alumni about the various activities, projects and events taking place in the different national chapters and observer groups. In addition to this, we envision this magazine to serve as a tool for sharing what our organization is all about with prospective members and partners who might want to join ALSA, or possibly work on collab-orative endeavors in the future.

,�ZRXOG�OLNH�WR�WDNH�WKLV�RSSRUWXQLW\�WR�DFNQRZOHGJH�WKH�HIIRUWV�RI�DOO�RXU�FRQWULEXWRUV�IRU�WKLV�LVVXH��without your support and effort, this project would not come to fruition. As such, please accept my sincerest thanks.

I would also like to thank my fellow IB members for their support in this endeavor. And last but not the least, I would like to take this chance to thank this year’s Vice President for Finance and Marketing Ms. Gwen Laungwattanawanich, and the Director for Marketing and Promotions, Ms. Anudporn Titapich, who worked for endless hours and weeks in order to make this magazine a reality.

This is just the beginning of greater things for ALSA. We hope that in the coming months and years, you will join us in writing our own ALSA story. And I know that it will indeed be a great one!

Sincerely,Melinda Mae LapusPresident of ALSA International Board

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ALSA INTERNATIONAL BOARD OFFICERS

President Name : Melinda Mae Lapus (Mia)

NC : ALSA Philippines

Secretary GeneralName : Ario Putra Pamungkas

NC : ALSA Indonesia

TreasurerName : Dami ParkNC : ALSA Korea

Vice-President of Finance and MarketingName : Sirintra (Gwen) Laungwattanawanich

NC : ALSA Thailand

Vice-President of Internship and Exchange.Name : Tan Sue Yinn (Sueann)

NC : Malaysia

Vice-President of Academic Activity.Name : Peeraphan Piyatamrongrat

NC : ALSA Thailand

Director for Website Management

Ms. Anindya Anugrah

Director of External Relations

Gerald Tham

Director for Strategic Planning and Development

Mary Elisabeth Chong

Director for Promotions and Marketing

Anudporn(Noon) Titapich

Director for Institutional Development

Erastus Sandino B. Austria

� @9 �:FIE<ILET’s GET TO KNOW THEM BETTER !

President : “Friendly, Approachable, Adventurous”

“To harness the diverse talents and skills of each and every member nation in order to develop ALSA International as a premiere international association for students of law. “

Secretary General : “Humble, Persevering, Hospitable “

“The ongoing project right now is the renewal of ALSA International website, the purpose is to ensure that the website provide a real time and adequate information for both members and non-members of ALSA. The website shall be the place for everyone to get the answers of ‘What is ALSA?’, ‘Who’s inside it?’, ‘What are they doing?’. Hopefully the web-site will be able to help everyone to know ALSA in a better view and surely to promote our international events so that everyone aware of our regular events and hopefully it could give them the eagerness to join us and contribute to ALSA on the international level. ALSA Always be One!”

Treasurer : “shy, mischievous, independent”

“I am currently working with our Director for Strategic Planning and Development, Ms. Mary Chong in order to establish an international bank account based in Switzerland. The said bank account is part of our bigger goal which is to become an incorporated entity under Swiss ODZ��ZKLFK�ZH�IHHO�ZLOO�JUHDWO\�LQFUHDVH�RXU�HIÀFLHQF\�ZLWK�UHJDUG�WR�ÀQDQFLDO�PDQDJHPHQW��In addition to this, I currently work with other International Board Of-ÀFHUV�E\�SURYLGLQJ�ÀQDQFLDO�JXLGHOLQHV�DQG�EXGJHW�DOORFDWLRQ�SURSRVDOV�as they prepare to implement a number of projects this coming 2013. I DP�FRQÀGHQW�WKDW�WRJHWKHU�ZH�ZLOO�EH�DEOH�WR�DFFRPSOLVK�RXU�JRDOV�WKLV�FRPLQJ�\HDU�IRU�WKH�PD[LPXP�EHQHÀW�RI�$/6$�µ

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VP Academic Activity : “Smart , Enthusiastic , Friendly”

“I am responsible for all academic matters. I am the leader in Academic Activities Committee Meeting (AACM) every month WR�PDNH�WKH�GLUHFWLRQ�WR�VWHS�IRUZDUGV�$/6$�LQ�DFDGHPLF�HYHQW���Making a decision in a Year Theme, International Video Confer-ence , Law Review etc. I am also here a coordinator to cooperate with Academic Activities Committees from ALSA members and observers. “

VP Finance & Marketing : “Talkative, Independent, Adventurous”

´$V�\RX�FDQ�VHH��WKH�$/6$�PDJD]LQH�LV�P\�ÀUVW�SURMHFW�WKLV�WHUP���)LUVW�DQG�foremost, I would like to thank you ALSA members, as this project would not have been possible without your support. In the coming months, I aim to publish more issues as part of my goal to constantly update our different national chapters and members about the different ALSA activities. With regard to our sponsorship drive, I am pleased to announce that the said proposals have already been completed and are now currently being sent out WR�GLIIHUHQW�FRPSDQLHV�DQG�ÀUPV���,I�DQ\�PHPEHU�ZRXOG�NQRZ�DQ\�RUJDQL]D-tion that would be interested in establishing a partnership with ALSA, please do not hesitate to contact me, and I would be more than happy to work with you on this matter.Lastly, I would like to take this opportunity to thank our Director for Market-ing and Promotions, Ms. Noon Titapich who has worked tirelessly with me in order to make these projects a success.”

VP Internship & Exchange : “Outgoing, Simple, Fun”

´7KH�,QWHUQVKLS�DQG�([FKDQJH�RIÀFH�LV�FXUUHQWO\�ZRUNLQJ�RQ�WKH�LQWHU-QDWLRQDO�LQWHUQVKLS��:H�KDYH�DSSURDFKHG�D�IHZ�ODZ�ÀUPV�DQG�WKH\�DUH�impressed with the quality of the members of ALSA. Surprisingly, there are a few that do take up international students as their interns. So, gear up yourself, prepare your resume, pass your English test, and get ready for the long journey ahead with so much more experiences to explore! Last but not least, keep yourself updated to the ALSA Magazine and Website for more updates.”

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National Chapters Feature Activities

ALSA JapanAcademic Interaction

The Introduction to Academic Activity of ALSA Japan ALSA Japan has 8 Local chapters, Tokyo University, Hitotsubashi Uni-versity, Kobe University, Waseda University, Keio University, Chuo University, Rikkyo University, Aoyamagakuin University. All Local Chapters arrange time to discuss about social problems once a week. In April and May, ALSA Japan has the biggest discussion event with all univer-sity students to introduce academic activities to freshmen every year. With 5 to 6 tables, the respective coordinators take up to 5 months to prepare for this event. Each table discusses a common topic based on a selected academic theme. The Academic Interaction is completed on the third day with a series of presentations and table rotation.

Academic Interaction, 2012 2012’s selected academic theme was “sustainable development”, with VSHFLÀF� WRSLFV� UHODWLQJ� WR� JHQGHU�� FLYLO� ODZ� DQG� GHFHQWUDOL]DWLRQ�� )LUVW� GD\�� RQ�22nd April, many freshmen attended the icebreaker session. This brought togeth-er university students from each of ALSA Japan’s local chapters. The academic discussions began on 12nd May, this culminated on 13th May with the table ro-tation, with each table presenting their respective topic. In addition, three famous professors in Japan attended the table rotation, giving comments on each policy suggestion made by ALSA Japan members.

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ALSA SingaporeStudy Trips

Singapore organizes two study trips (STs) each year – once between the summer months of June to August, and the other during the winter month of December.

The best thing about the Singapore STs is that no matter which study trip you decide to come for, the weather in Singapore will DOZD\V�EH�VXQQ\��ZDUP��DQG�LQYLWLQJ��)HHO�WKH�ÀQH�VDQG�EHWZHHQ�\RXU�WRHV�DW�RXU�party beaches, and taste the best variety of food Asia has to offer in one of the many hidden culinary gems scattered around the island!

Another thing that doesn’t change is the temperament of Singapore caretakers – due to a rigorous selection process that ensures only the most passionate, friendly, generous and responsible individuals get selected to be your caretakers, the Singapore STs have always been known to be professionally run.

The upcoming ST is in mid-2013. Look out for more information in the coming months!

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ALSA MalaysiaALSA International Conference 2012

The congregation of regional minds produces unexpected sparks in all aspects of life. To foster stronger relationships across borders and to grow pro-gressively as a regional community was our ultimate goal. Such phrases would best describe the gist of what ALSA Malaysia is and the philosophical pinnacle of ALSA International Conference 2012.AIC 2012 served as a platform of regional and international law students gather and exchange intellectual thoughts and ideas which would help the association grow as a whole. As such, the theme for AIC 2012 focused on the issue of global sustainability. As one of the many leading global issues of the day, it is not an easy issue to be tackled.. Delegates from ALSA Japan, ALSA Thailand, ALSA Taiwan, ALSA Indonesia, ALSA Korea, ALSA Laos, ALSA Vietnam, ALSA Singapore, and Australian Law Students’ Association participated in the event.� 2Q�WKH�YHU\�ÀUVW�GD\��GHOHJDWHV�were welcomed in Welcoming Dinner at Berjaya Times Square Ballroom. That night cheerfully gather round all of our ALSA members under one roof to bid them a very blissful welcome to Malaysia. � 7KH�ÀUVW� ��GD\V�RI� WKH� FRQIHU-ence tackled the issue from an academ-ic perspective. Model United Nations, a simulator of round table talks between national representatives from members of the United Nations, was conducted to discuss and resolve selected issues as a whole. A mooting competition with environmental law as its theme was also conducted simultaneously to let universities compete on a regional scale. It was riveting to watch this competition as all of the mooters have different points of view and employed different angles of analyzing the moot question as all of them adopt a different set of culture, and thus rendering their method of presentation distinctively different from each other, despite the fact there are only subtle differ-ences in terms of their thinking patterns and mentalities.

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All in all, the academic activities conducted throughout the conference have achieved its purpose which is to allow members of ALSA to exchange thoughts and ideas intellec-tually in various forums. After the power-packed days of academic activities, the dele-

gates were diverted into sports mood, which the organizing committees had planned with fun and exciting games. This was the perfect time to forge great-er bonds between ALSA members and create a harmonious environment for the conference to go on. The remaining days of the conference exposed the participants to its lighter side as tours were arranged to various parts of the country, such as the Historical Town of Malacca, Genting Highlands and so forth. Mentally ex-hausted by rigorous academic activities, it is vital to have these non-academic components in place in order to tone down the formal and rigid atmosphere of the conference. As a fellow Malaysian, it is also heart-warming to see the international participants experience the hospitality the country has to offer. It also certainly highly satisfying to acknowledge the fact that international participants appreciated every single moment they spent in the conference, especially during the farewell dinner in Malacca, where all participants sa-vored their last moments in the conference together in a massive exchange of contacts, photography sessions and sing-alongs.� 2Q� D�ÀQDO� QRWH��$/6$� ,QWHUQDWLRQDO�&RQIHUHQFH� ����� KDV�ZRUNHG�wonders in translating its motto into an unforgettable gathering experience, which is “ALSA Always be One”.

Prepared byALSA MALAYSIAKALAIVANI ANNADORAIPR OFFICER 2012 /2013

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Great project created by an ALSA observer, Sri LankaLegal Aid Clinic and Disability Law Awareness Project.$V�WKH�/DZ�6WXGHQWV�$VVRFLDWLRQ�RI�6UL/DQND�ZH�ZDQWHG�WR�KDYH�RXU�ÀUVW�SLORW�SURMHFW�DV�RQH�WKDW�HPSKD-sizes more than just the law, but one that shows our human nature and our acts of fellowship amongst our fellow law students to unite on behalf of the less privileged to give our time and effort for a worthy cause to show love and to care for those in need, to show the true meaning of being human. “Law students pulling the weight together to get ready for the programme.”

Purpose: We believe that the legal education is very academical and hardly practical, we initiated this programme so as to get law students the exposure and experience to understand the day to day dealings of a lawyer going through consultations and how to address various legal issues.

How we did it: The LSASL got together to form a group within the NC to choose a committee to organize this project depending on availability as the NC is a pluralistic committee with different H[DP�GDWHV�IRU�HDFK�LQGLYLGXDO��6R�ZRUN�ZDV�EURNHQ�XS��:H�ÀUVW�contacted the Bar of Kalutara at the courts and met the president of the Bar Association. We chose Kalutara as it is the district with the largest population of disabled persons and is away from the capital of SriLanka. Due to the distance it was no easy task but everyone kept strong and due to delegated work we managed to get everything done. We then approached the various disabled in-

stitutes and proposed this idea, they gave their full support towards this. Then we made teams for sponsors and for inventory and an organizing committee.

The Basic Plan 9am: People enter the Hall and then the opening ceremo-ny. With the traditional lighting of the lamp by the distin-guished guests. After that the invited guest speaker would give the speech regarding the disability laws, with many GLVDEOHG�SHUVRQV�DQG�SROLFH�RIÀFHUV�DWWHQGLQJ�ZH�FUHDWH�a bridge between the law enforcement and the public to make sure that the awareness is not single sided and there-IRUH�WKH�HIIHFWLYHQHVV�LV�DPSOLÀHG��

Afterwards we conduct the recess, where we served free refreshments to all persons as we know that some peo-ple have traveled many miles to make it to this awareness programme and are not privileged to afford a good healthy breakfast.

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The idea for the legal camp.Step 1: Persons would meet a bench of law students outside the Hall.

At this stage each individual law student would take up his client and listen to his/her individual problem, while listening the law student would take notes and summarise the story into what they ÀQG�DV�WKH�SUREOHP�LQYROYHG�ZLWK�WKH�FOLHQW�

Step 2: Meeting the Lawyer and taking the client inside the Hall.

Step 3 : &HUWLÀFDWHV�DQG�)HOORZVKLS�

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Taiwan EMCC Regional Moot

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History and Backgrounds The ELSA Moot Court Competition (EMC²) is a simulated hearing in the World Trade Organization (WTO) dispute settlement system. First held in 2002, the competition has since become one of the largest and most prestigious international law moot court competitions in the world. It has provided law school students with the unique opportunity to argue complex and timely ques-tions of international trade law.

Competition Structure The EMC² has two rounds, known as the Selection Rounds (ELSA Re-JLRQDO�5RXQGV��$VLD�5HJLRQDO�5RXQG��3DFLÀF�5HJLRQDO�5RXQG��/DWLQ�$PHULFDQ�Regional Round, North American Regional Round and International Written Round) and the National Rounds. This year, ALSA is proud to be a partner of (/6$�LQ�KRVWLQJ�WKH�ÀQDOV�IRU�WKH�$VLDQ�5HJLRQDO�5RXQGV���

Asia Regional RoundThe Asian Regional Rounds will be held in Soochow Univer-sity, located in Taipei, Taiwan. Taipei, with its vibrant and di-verse culture make it an ideal venue for holding the said moot court competition. Only an hour away from Taoyuan Interna-tional Airport, its convenience and cosmopolitan charm will GHÀQLWHO\�PDNH�SDUWLFLSDWLRQ�LQ�WKLV�FRPSHWLWLRQ�WUXO\�DQ�H[SH-rience to remember.

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What You Need to Know-HostALSA Taiwan ALSA Soochow University ALSA Fu Jen Catholic University ALSA National Taiwan University ALSA National Chengchi University ALSA National Taipei University-WhereAcademic Venue: Soochow University Soochow University is located in downtown Taipei, and is conveniently situated in the middle of various cultural spots and historical landmarks, which will allow the participants to easily explore the city’s many attractions. In addition to its great location, Soochow University is fully equipped for mooting activities with vari-ous function rooms tailored to host any kind of law-related competition.

Hotels: Casesar Park Hotel and Cosmos Hotel are located near the Taipei Main Station, which is one of the busiest stations in Taipei. Both hotels are also con-veniently located near bus stops that serves as another convenient way of going around the city -WhenMarch 4-8, 2013 (4 days)-ParticipantsFor this year’s regional rounds, there be around sixty to a hundred participants, with six to thirty teams coming from all over Asia.

The purpose of this competition is to provide contestants with a venue IRU�GLVFXVVLQJ�WKH�KRWWHVW�LVVXHV�SHUWDLQLQJ�WR�LQWHUQDWLRQDO�WUDGH�ODZ��LW�DOVR�DLPV�to provide participants not only with a better view of what international trade is all about, but it also aims to enhance the technical skills and abilities of partici-pants in one aspect of the law.

ALSA Forum !ailand 2012

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!e ALSA Forum is an annual ALSA event held in August every year, and is hosted by one of our national chapters. !is year, ALSA !ailand which is composed of 4 local chap-ters, Chulalongkorn University, !ammasat University, Assumption University, and Chi-angmai University, hosted the event from Au-gust 11-17 at the Eastin Grand Hotel Sathorn in Bangkok, !ailand.

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!e event was graced by over a hundred participants from the di"erent ALSA National Chapters and observer countries. During the said forum the organizers prepared several academic and non-academic activities which included a symposium, table discussions, debate competition, as well as various gatherings and dinners for their participants.

!e conference concluded with a presentation of the various table discussion groups, the #nals for the debate competition which was won by the Philippines team, a lecture on “Natural Disaster Management”, and a farewell dinner hosted at a yacht party along the beautiful Chaopraya River.

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Protecting Hong Kong’s Natural Resources: Air Pollution and the Basic Law

written by: Adrian Fong, ALSA Hongkong

Introduction

Air is one of the most abundant and important natural resources in Hong Kong, which has comparatively few natural resources due to its limited land mass, yet its pollution levels remains at unacceptably high levels when compared to the relatively high standard of living its citizens are ac-customed to1. There is no doubt that the executive branch can do more, whether through legislation, policy changes, or more concentration directed towards the protection of the environment instead of a overwhelming focus on economic growth, to stop Hong Kong from being “a developed economy with a third world environment2”. Although Chief Executives have repeatedly pledged to improve and pro-tect the environment3 and White Papers have also noted the failure to protect the environment4, Hong Kong’s citizens still have a large number of avoidable deaths from the air pollution.5

The question then turns to whether or not other methods can be used to help enforce Hong Kong citizen’s right to a healthy environment and protection of natural resources. This article reviews Art. 119 of the Basic Law6 and the possibility that it creates an obligation for the Government of Hong Kong to fashion policies that take into consideration the preservation of the environment, and subsequently the protection of its most important natural resource – air. Academics, like Liebman, have commented on the fact that Article 119 is proof that Hong Kong does not show substantial concern for the environment in comparison with other countries7 where there is often mandated a right to a healthy environment8. Noting the fact that Hong Kong air pollution remains at unreasonably high levels, this DUWLFOH�UDLVHV� WKH�SRVVLELOLW\� WKDW�FRQWLQXDO�IDLOXUH�E\�WKH�*RYHUQPHQW� WR�SD\�VLJQLÀFDQW�DWWHQWLRQ�WR-ZDUGV�WKH�HQYLURQPHQW�PD\�DOORZ�FRXUWV�WR�LVVXH�PDQGDWRU\�RUGHUV�WR�IXOÀOO�LWV�UHVSRQVLELOLW\�WR�DGH-quately pay regard towards the protection of the environment and the natural resources that Hong Kong citizens have a right to.

1 7H�3LQJ� &KHQ� �¶+RQJ� .RQJ� &OLPEV� LQ� /LYDELOLW\� ,QGH[�� 6LQJDSRUH�:LQV·� �:DOO� 6WUHHW� -RXUQDO�� ���$SULO� ������ �KWWS���EORJV�ZVM�FRP�FKLQDUHDOWLPH������������hong-kong-climbs-in-livability-index-singapore-wins/> accessed 29 April 2012. 2 Berry Fong Chung Hsu, ‘Constitutional Protection of a Sustainable Environment in the Hong Kong Special Administrative Region’ [2004] J. Env. L. 193, 194. 3�6HH��IRU�H[DPSOH��7XQJ�&KHH�KZD·V������3ROLF\�$GGUHVV��7XQJ�&KHH�KZD��¶4XDOLW\�3HRSOH�4XDOLW\�+RPH·��3ROLF\�$GGUHVV����������KWWS���ZZZ�SROLF\DGGUHVV�JRY�KN�pa99/english/espeech.pdf > accessed 21 April 2012. 4 See Hong Kong Government, Pollution in Hong Kong – A Time to Act (1989), S 1.5 where it notes that “[T]he Government and the community made choices which gave too little emphasis to the needs of the environment…” 5�6HH��,ULV�/XL�¶*HWWLQJ�2XU�3ULRULWLHV�5LJKW�²�&OHDQHU�$LU�LQ�+RQJ�.RQJ·��&RUSRUDWH�6RFLDO�5HVSRQVLELOLW\�LQ�$VLD�����$SULO���������KWWS���FVU�DVLD�FRP�ZHHNO\BGHWDLO�php?id=12660> accessed 23 April 2012:“The Hedley Environmental Index estimated that the average annual number of avoidable deaths attributable to air pollution over WKH�SDVW�ÀYH�\HDU�LV�������ZKLFK�HTXDWHV�WR�D�WRWDO�RI��������DYRLGDEOH�GHDWKV�LQ�+RQJ�.RQJ�RYHU�WKH�SDVW�ÀYH�\HDUV�DORQH�µ 6�%DVLF�/DZ�$UW�������7KH�%DVLF�/DZ�RI�WKH�+RQJ�.RQJ�6SHFLDO�$GPLQLVWUDWLYH�5HJLRQ�RI�WKH�3HRSOH·V�5HSXEOLF�RI�&KLQD� 7 Benjamin L. Liebman, ‘Autonomy through Separation?: Environmental Law and the Basic Law of Hong Kong’ [1998] 39 Harv. Int'l. L. J. 231, 237. 8�6HH�-XGLWK�5��%ODX��$OEHUWR�0RQFDGD��-XVWLFH�LQ�WKH�8QLWHG�6WDWHV��+XPDQ�5LJKWV�DQG�WKH�8�6��&RQVWLWXWLRQ��5RZPDQ��/LWWOHÀHOG��������������� -16-

This article concludes with the possibility that the scope of Article 119 can be expanded to ne-cessitate the government of Hong Kong to review environmental legislation regarding air quality, expand legislation and requirements to those which have been recommended by international organizations such as the World Health Organization, and enforce these necessary protections.

Interpreting Article 119’s duty to Pay Regard

The Basic Law Article 119 states that “The Government of the Hong Kong…shall formulate appropriate policies to promote and co-ordinate the development of various trades… and pay regard to the protection of the environment9”, showing a constitutional duty of the government to “pay regard” towards the protection of the environment, which logically would include the natural resources of Hong Kong such DV�DLU��$OWKRXJK�WKLV�VSHFLÀF�FDOO�WR�´SD\�UHJDUGµ�LV�OHIW�DPELJXRXV��IRU�H[DPSOH�ZKHWKHU�OHJLVODWLRQ�VKRXOG�be in place or the judiciary should decide whether due regard had been placed in a particular action, it leaves no doubt that the Hong Kong government must at least have a notion of the environmental impact of its decisions.10 In beginning to analyze the power of Article 119, it is imperative to understand its scope, opera-tion, and obligation that it imposes on the government11. Constitutional interpretation methods have been set down in a number of cases, most notably in Ng Ka Ling, in how courts should interpret the constitution it being said that “‘[T]he courts must avoid a literal, technical, narrow or rigid approach12”. When approach-ing Art. 119 from that viewpoint, it may simply mean an implied obligation and duty to make “environ-mental impact assessments” a prerequisite before attempting to formulate its policies on issues affecting the environment.13 Nevertheless, Art. 119 still leaves much room for interpretation, and the courts have still not been given the opportunity to interpret this provision, presumably because its vagueness precludes individuals from pursuing the constitutional option when statutory ones exist. It may be possible to suggest possible avenues14 that court may be willing to take by examining previous cases where different courts have interpreted the statement (or similarly worded statements) “due regard”. $OWKRXJK�IHZ�RI�WKHVH�UHJDUG�WKH�LPSRVLWLRQ�RI�D�FRQVWLWXWLRQDO�GXW\��WKH�GHÀQLWLRQ�RI�VWDWXWRU\�GXW\�PD\�KHOS�GHÀQH�DQG�VXJJHVW�KRZ�D�EURDG�GHÀQLWLRQ�PLJKW�EH�SODFHG��7DNLQJ�LQWR�DFFRXQW�WKDW�WKH�FRQVWLWXWLRQ�VKRXOG�QRW�EH�LQWHUSUHWHG�OLWHUDOO\��WKH�FRXUWV�FDQ�SUHVXPDEO\�H[SDQG�IURP�D�QDUURZHU�GHÀQLWLRQ�RI�WKH�VWDW-utes into a broad imposition to pay due regard to the environment in many cases.

9 Basic Law Art. 119, emphasis added. The full article reads: “The Government of the Hong Kong Special Administrative Region shall formulate appropriate policies to promote and co-ordinate the development of various trades such as manufacturing, commerce, tourism, real estate, transport, public utilities, services, agriculture and ÀVKHULHV��DQG�SD\�UHJDUG�WR�WKH�SURWHFWLRQ�RI�WKH�HQYLURQPHQW�µ 10 Berry Fong Chung Hsu, ‘Constitutional Protection of a Sustainable Environment in the Hong Kong Special Administrative Region’ [2004] J. Env. L. 193, 196. 11 It may be relevant to note that Ibid.:“the only authentic version of the Basic Law is its Chinese version and it may be translated into ‘together to pay regard to the protection of the environment’ rather than ‘and pay regard to the protection of the environment’” although it should be argued that paying regard to the environment would almost never leave out considerations of the economy, and any interpretation that would suggest so would be widely rejected. 12 Ng Ka Ling & Others v Director Of Immigration [1999] 1 HKC 291, 340. 13 Berry Fong Chung Hsu, ‘Constitutional Protection of a Sustainable Environment in the Hong Kong Special Administrative Region’ [2004] J. Env. L. 193, 196: “[im-position of] an implied duty on the HKSAR Government to make environment impact assessment as a prerequisite in formulating its policies in developing infrastructure and real estate planning and together with other provisions of the Basic Law, it is more than a broad statement of policy.” 14 The Air Pollution Control Ordinance (Cap 311). -17-

In R v Waltham Forest LBC15, the English courts presided over a case which focused around the meaning of a section of the Disability Discrimination Act which mandated “Every public authority [to] in carrying out its functions have due regard” towards a number of factors such as the need to eliminate unlawful discrimination and need to promote equality of opportunity.16 The court interpreted this to be a duty on public authorities, amongst others, to be a duty, not to achieve results, but to take positive action through having appropriate regard in all the particular circumstances when carrying out its functions, “but at the same time…must pay regard to any countervailing factors which, in the context of the function being H[HUFLVH��LW�LV�SURSHU�DQG�UHDVRQDEOH�IRU�LW�WR�FRQVLGHU��VXFK�IDFWRUV�ZLOO�GHSHQG�XSRQ�WKH�SDUWLFXODU�IXQFWLRQ�being exercised and all the circumstances that impinge upon it, and economic and practical factors will often be important”.17��7KLV�GHÀQLWLRQ�LV�TXLWH�VLPLODU�WR�KRZ�D�OLWHUDO�LQWHUSUHWDWLRQ�RI�$UW������PLJKW�SURFHHG��\HW�it can be argued that this literal interpretation might only obligate the government to do such environmental DVVHVVPHQWV�ZLWKRXW�DFWXDOO\� WDNLQJ� WKHVH� LQWR�DFFRXQW� LQ� WKHLU�GHFLVLRQ�PDNLQJ�6XFK�D�GHÀQLWLRQ�ZRXOG�OHDYH�WKH�HQYLURQPHQW��WKH�DLU�TXDOLW\�LQ�+RQJ�.RQJ�WR�EH�VSHFLÀF��JURVVO\�XQGHUHVWLPDWHG�DQG�GLPLQLVKLQJ�constitutional protection’s importance in a society where the government supposedly exists for the well-be-ing of its citizens. In South Africa, having “due regard” in a constitutional context was noted to mean an obligation to give it the consideration “which it deserves in the circumstance”.18 This statement, when applied to Hong Kong, would make Art. 119 not only a duty to make environmental assessments, but to give it the consid-eration it deserves in the circumstances, something substantively powerful which gives courts the power to intervene when it believes the government is not discharging its duty.19 This would be an expansion of what it means to “pay regard” when compared to the more orthodox literalistic interpretation, but would also be in line with greater protection of citizens. For example, if the government were to create a policy allowing for increased diesel-car usage,20 order environmental impact assessments, and only cursorily note them, it may be possible that the government could be judicially reviewed for not giving the assessments the consid-eration it deserves. How much consideration would be a question of fact for the courts to decide.Overall, very much is left up to the courts on how Art. 119 is to be interpreted, and whether the imposition RQ� WKH�JRYHUQPHQW� WR�´SD\�UHJDUGµ�IROORZV�D�PRUH�RUWKRGR[�´SD\�UHJDUGµ�GHÀQLWLRQ�� LQYROYLQJ�RQO\� WKH�requirement of understanding of environmental impact of policies, or whether it can be expanded to include mandatory and reasonable consideration of such knowledge. That is, whether the Basic Law can be said to have created a duty by the executive government to pay due regard towards the environment, and in fully GLVFKDUJLQJ�WKDW�GXW\�QHFHVVLWDWH� WKH�UHDVRQDEOH�FRQVLGHUDWLRQ�RI�HQYLURQPHQWDO� LPSDFW�²�VSHFLÀFDOO\� WKH�natural resources in Hong Kong such as air. Given Hong Kong’s above-average air pollution, in many cases, the government may not have discharged its duty, there being policies which it may be argued have in place due to lack of reasonable consideration of its environmental impacts. In the future, the courts should be able to clarify the scope of Art. 119 and bring greater certainty into the obligations the executive have towards the protection of the environment and the natural resources of Hong Kong.

15 7KH�4XHHQ�RQ�WKH�$SSOLFDWLRQ�RI�3UDQMLYDQGDV�5DMSXW��$VKRN�6KDPML�Y�/RQGRQ�%RURXJK�RI�:DOWKDP�)RUHVW�>����@�(:&$�&LY������ 16 Disability Discrimination Act 1995, s 49A(1) which has since been repealed. 17 7KH�4XHHQ�RQ�WKH�$SSOLFDWLRQ�RI�3UDQMLYDQGDV�5DMSXW��$VKRN�6KDPML�Y�/RQGRQ�%RURXJK�RI�:DOWKDP�)RUHVW�>����@�(:&$�&LY������>��@� 18 Francois Venter, Constitutional Comparison: Japan, Germany, Canada and South Africa as Constitutional States (Brill 2011) 251, footnote 211 regarding the 6HFRQG�&HUWLÀFDWLRQ�-XGJPHQW� 19 It is noted in R. v Barnet London Borough Council [2004] 2 A.C. 208, 219: “[An authority] is obliged to comply with a statutory duty regardless of whether, left to itself, it would prefer to spend its money on some other purpose. A power need not be exercised, but a duty must be discharged. That is the nature of a duty. That is the underlying purpose for which duties are imposed on local authorities. They leave the authority with no choice.” This requirement to discharge a duty is similar WR�KRZ�WKH�H[HFXWLYH�EUDQFK�PLJKW�ÀQG�LWVHOI�LI�$UW������LV�LQWHUSUHWHG�DV�VXFK� 20 Diesel being mentioned as a hypothetical example as it contributes a major portion of air pollutants in Hong Kong. See Hong Kong Clean Air Network, ‘Hong .RQJ·V�3ROOXWLQJ�%XVHV�$�0DMRU�7KUHDW�WR�+XPDQ�+HDOWK·��&OHDQ�$LU�1HWZRUN���KWWS���ZZZ�KRQJNRQJFDQ�RUJ�GRFOLE�%XV���SSW�SGI!�DFFHVVHG����$SULO������

-18-

Policy as the Government’s prerogative?

It has always been the prerogative of the executive to take such actions and formulate such poli-FLHV�DV�QHFHVVDU\�WR�IXOÀOO�LWV�GXWLHV�21 In Clean Air Foundation Ltd & Another v Government of HKSAR,22 applicants sought leave to apply for judicial review on the basis that and the government failed in its legal duty, entrenched in multiple constitutional instruments,23 to take the necessary steps to combat the air pol-lution – the Hong Kong’s air pollution levels were so abnormal that it was “shortening their lives”24 – thus IDLOLQJ�LWV�GXW\�WR�WDNH�DIÀUPDWLYH�DFWLRQ�LQ�WKH�FRQVWLWXWLRQDO�ULJKW�WR�OLIH�25 However, the court noted that such an application could, in essence, be an “attack on Government policy”, which although may be poorly and imprudent, would still stand.26 This harkens back to a statement noted in Ng Ngau Chai v The Town Planning Board,27 where Reyes J stated that “…the Court can only apply law. The Judiciary cannot manage the environment. That is the role of the Executive.”28 This is correct in many aspects, since not every deci-VLRQ�FDQ�EH�RYHUVHHQ�E\�WKH�MXGLFLDU\��DQG�GRLQJ�VR�ZRXOG�LQYRNH�WKH�ÁRRGJDWHV�RI�OLWLJDWLRQ�FRQFHUQ�ZKHUH�every decision by the executive would be under review for likelihood of impropriety of conduct and lack of consideration for assessments. Nevertheless, the fact that the Basic Law creates the positive obligation for the government to pay regard to the environment means that the court should not abdicate the “right to judicial review”29 where the government has failed to take into consideration something it must, or where the government has inappropriately performed its role.30 In the recent decision of Chu Yee Wah v Director of Environmental Protection, the court again reiterated that an environmentally related decision is “matter of policy and, so long as lawfully determined and executed, policy is not a matter for the courts”.31 This is rightly decided, and yet it is still possible to point to many instances were policy might not have been lawfully executed in that environmental assess-ments and perhaps due consideration is not given when making decisions. According to a study done by the &LYLF�([FKDQJH��´2Q�D�VWULFW�UHDGLQJ��WKHUH�LV�QR�REOLJDWLRQ�RQ�WKH�YDULRXV�VWDWXWRU\�RIÀFHUV�WR�WDNH�DFFRXQW�of the prejudice to health in establishing and implementing the procedures [in the Air Pollution Control Or-dinance]”.32 As the purpose of the natural resource of Air is to keep Hong Kong’s population healthy, it may be said that proper regard and consideration may not have been placed. At an Environmental Law Lecture, Sir Harry Woolf noted that “…the [court] has consistently turned its face against considering the merits of WKH�GHFLVLRQ��EXW� LQVWHDG�KDV�FRQÀQHG�LWV�DWWHQWLRQ�WR�VFUXWLQL]LQJ�WKH�SURFHGXUDO�SURFHVV�DGRSWHG�E\�WKH�Ministers in reaching their decisions…”33 Given that courts should not review the merits of an environ-mentally-related decision, it should more vigorously guard the environment using its power of procedural judicial review to protect the citizens of Hong Kong.

21 Basic Law Art. 62 calling for the government of HKSAR to “To formulate and implement policies”. 22 Clean Air Foundation Ltd & Another v Government of HKSAR [2007] HKEC 1356 23 ,ELG���>��@��$PRQJVW�RWKHUV��it was noted that Article 28 of the Basic Law and Article 2 of the Hong Kong Bill of Rights Ordinance provided for protection of a ‘right to life’. The ‘right to health’ was H[SUHVVHG�LQ�$UWLFOH����RI�WKH�,QWHUQDWLRQDO�&RYHQDQW�RQ�(FRQRPLF��6RFLDO�DQG�&XOWXUDO�5LJKWV��,&(6&5��ZKLFK�LPSRVHV�XSRQ�WKH�*RYHUQPHQW�DQ�DIÀUPDWLYH�GXW\�WR�SURWHFW�WKH�UHVLGHQWV�DQG�WKH�HFRQRP\�of Hong Kong from the known harmful effects of air pollution. 24 Ibid., [4]. 25 Ibid., [5]. 26 Ibid., [8]. 27 Ng Ngau Chai v The Town Planning Board [2007] HKEC 1207 28 Ibid., [28]. 29 &RXQFLO�RI�&LYLO�6HUYLFH�8QLRQV�Y�0LQLVWHU�IRU�WKH�&LYLO�6HUYLFH�>����@�$&������5H�$SSOLFDWLRQ�IRU�-XGLFLDO�5HYLHZ�E\�5LJKW�&HQWUH�&R�/WG�>����@���+./5���� 30 1RWLQJ�/RUG�'RQDOGVRQ�05�LQ�5�Y�3DQHO�RQ�7DNH�RYHUV�DQG�0HUJHUV��H[�S�*XLQQHVV�SOF�>����@���4%����������� “I think that, at least in the circumstances of this appeal, it is more appropriate to consider whether something has gone wrong of a nature and degree which require the intervention of the court”. Compare with Secretary of State for Education and Science v Tameside Metropolitan Borough Council [1977] AC 1014, 1030: “Thus the court may not only quash the authority’s decision…if it is held to be vitiated by legal misdirection or procedural impropriety or unfairness RU�ELDV�RU�LUUDWLRQDOLW\�RU�EDG�IDLWK�EXW�DOVR�LI�WKHUH�LV�QR�HYLGHQFH�WR�VXSSRUW�IDFWXDO�ÀQGLQJV�PDGH�RU�WKH\�DUH�SODLQO\�XQWHQDEOH�RU�LI�WKH�GHFLVLRQ�PDNHU�LV�VKRZQ�WR�KDYH�PLVXQGHUVWRRG�RU�EHHQ�LJQRUDQW�RI�an established and relevant fact.”

Citizens should be able to make certain that natural resources in Hong Kong, such as air, are be-ing protected from the damaging consequences as a result of improperly conducted governmental policies which improperly discharge the constitutional duty to pay regard towards the environment. In Lau Kong Yung v Director of Immigration,34 it was noted that the court had the power to intervene where the admin-istrator “misconstrues a statute and asks himself the wrong question, or fails to ask himself the right ques-tion… [whereby] the Court can properly intervene and quash his decision on the ground of illegality”.45 A relevant example was given where an administrator, faced with the duty to consider humanitarian grounds, PXVW�VHW�XS�WKH�PHDQV�WR�GR�VR��VLPLODUO\�DSSOLHG��D�GXW\�SODFHG�ZLWKLQ�WKH�%DVLF�/DZ�WR�SD\�UHJDUG��SHUKDSV�both in terms of assessment and, to a certain degree, the level of consideration, to the environment obligates WKH�H[HFXWLYH�EUDQFK�WR�VHW�XS�WKH�PHDQV�WR�IXOÀOO�WKDW�GXW\�36 It would be highly impractical and improper if the judiciary were to supplant the role of the ex-HFXWLYH�DQG�FUHDWH�WKH�QHFHVVDU\�HQYLURQPHQWDO�SROLFLHV�WR�SURWHFW�+RQJ�.RQJ�FLWL]HQU\�37 but to allow the courts to review decisions where, still using the necessary evidentiary burden of proof, the executive may not have discharged its duty or acted with impropriety or illegality is not a heavy burden to bear. Although as a matter of tradition, courts will rarely “make an order to compel a public authority to arrive at a particular decision”38 and an applicant should not expressly request the judiciary to compel the action of an executive in issues related to air pollution policy or natural resources strategy, the court can issue the order of manda-PXV�DQG�VLPLODU�LQVWUXPHQWV�WR�RUGHU�WKH�SXEOLF�RIÀFLDO�WR�SURSHUO\�GLVFKDUJH�LWV�GXW\�WR�SD\�´GXH�UHJDUGµ�towards the environment, similar to the situation in Prem Singh v Director of Immigration.39 This order of PDQGDPXV�FRXOG��LQ�PDQ\�FDVHV��HQG�XS�EHLQJ�XVHG�ZKHUH�DQ�RIÀFLDO�SD\V�OLWWOH�KHHG�RU�FRQVLGHUDWLRQ�WR-wards the environmental effects of a project. An affected citizen might be able to produce evidence showing a failure to perform the constitutional duty to “pay regard” towards the environment, therefore convincing the court to issue the appropriate remedy. The court will, however, only do so where it can be proven that the government has improperly performed its duties, and substantial evidence, mostly in the form of experts, will be needed alongside perhaps an objective test of reasonableness.40 Berry Fong Chung Hsu noted in Constitutional Protection of a Sustainable Environment in the Hong Kong Special Administrative Region that “The Basic Law expressly requires the HKSAR Govern-ment to pay regard to the environment and the protection of property right is subject to the law. In case of FRQÁLFW��HQYLURQPHQWDO�ULJKW�VKRXOG�SUHYDLOµ�41 On the contrary, it should be argued that the right to environ-mental protection is not an absolute. What the courts need not to do is become environmental activists, but instead must fetter the government against its excesses which go against the constitutional duty to pay regard towards the environment. In some cases, after due consideration has been placed and environment assess-ments has been noted, economic interests will prevail, and in other circumstances environmental protection will prevail. The courts should not and have not shown itself to be a crusader for environmental rights,42 but SURWHFWRU�RI�WKH�SURFHGXUHV�XQGHU�ZKLFK�+RQJ�.RQJ·V�JRYHUQPHQW�LV�ERXQG�E\��LW�VKRXOG�FRQWLQXH�WR�SHU-IRUP�LWV�GXW\�E\�FODULI\LQJ�WKH�VFRSH�RI�$UW������DQG�GHÀQLQJ�ZKDW�WKH�JRYHUQPHQW�LV�GXW\�ERXQG�WR�SHUIRUP�in regards to “paying regard” towards Hong Kong’s environment and natural resources, especially in regards to air.

31Chu Yee Wah v Director of Environmental Protection [2011] 5 HKLRD 469, 482. 32 &LYLF�([FKDQJH��¶$�5HYLHZ�RI�WKH�$LU�3ROOXWLRQ�&RQWURO�2UGLQDQFH·��&LYLF�([FKDQJH��)HEUXDU\��������KWWS���ZZZ�FLYLF�H[FKDQJH�RUJ�HQJ�XSORDG�ÀOHV�������$3&2V�SGI!�DFFHVVHG����$SULO������ 33 Sir Harry Woolf, ‘Are The Judiciary Environmentally Myopic?’ [1992] Journal of Environmental Law 1, 5. 34 Lau Kong Yung v Director of Immigration [1999] 3 HKLRD 778 35 Lau Kong Yung v Director of Immigration [1999] 3 HKLRD 778, 814. 36 ´-XGLFLDO�UHYLHZ��LQ�RXU�V\VWHP��LV�DQG�LV�LQWHQGHG�WR�EH�D�IHWWHU�RQ�WKH�([HFXWLYH·V�SXUVXLW�RI�LWV�SROLFLHV��LW�LV�LQWHQGHG�WR�PDNH�WKH�&RXUWV�WKH�DUELWHU�RI�legal propriety in the process of administration.” See Gerard Brennan “The Purpose and Scope of Judicial Review” in M. Taggart (ed) Judicial Review of Administrative Action in the 1980s: Problems and Prospects (Oxford: Oxford University Press, 1986), p.18.a38 Swati Jhaveri and Michael Ramsden, and Anne Scully-Hill, Hong Kong Administrative Law (LexisNexis 2010) 204.39 See Ho Choi Wan v Hong Kong Housing Authority [2005] 4 HKLRD 706. See also Prem Singh v Director of Immigration [2003] 1 HKLRD 55040 :KDW�WKLV�H[DFW�GXW\�ZLOO�VSHFLÀFDOO\�HQWDLO�GHSHQGV�RQ�KRZ�IDU�WKH�FRXUWV�DUH�ZLOOLQJ�WR�LQWHUSUHW�$UW������DQG�WKH�GXW\�LW�SODFHV�RQ�WKH�JRYHUQPHQW�41 Berry Fong Chung Hsu, ‘Constitutional Protection of a Sustainable Environment in the Hong Kong Special Administrative Region’ [2004] J. Env. L. 193, 213-214. -20-

International Judicial Governance of the Environment and Natural Resources

� ,QWHUQDWLRQDOO\��WKH�MXGLFLDU\�KDV�EHHQ�LQVWUXPHQWDO�LQ�GHYHORSLQJ�WKH�QDVFHQW�ÀHOG�RI�´HQYLURQ-mental governance” through promotion of constitutional rights to a healthy environment and pronounce-ments on the validity of executive and legislative action.43 Whether or not other this can be explained through other courts’ judicial activism, it is an important for Hong Kong nonetheless to note its effective-ness as a driving force behind the environmental policy in other common law jurisdictions with similar governance schemes. In Australia, the courts, which have the power of administrative review to ensure the legality of the decisions made by the executive, applied the “precautionary principle” in Leatch v National Parks and Wildlife Service44 where Stein J held that a “cautious approach” was needed to prevent irreversible harm towards the environment.45 It is suggested the government in Hong Kong adopt this cautious approach in FRQMXQFWLRQ�ZLWK�FRQVLGHUDWLRQ�DV�WR�WKH�UDPLÀFDWLRQV�RI�WKH�HQYLURQPHQW�ZLWK�WKH�NQRZOHGJH�WKDW�GDPDJH�WR�WKH�HQYLURQPHQW�DQG�DLU�TXDOLW\�LV�LQ�PDQ\�FDVHV�LUUHYHUVLEOH��WR�GR�VR�ZRXOG�VKRXOG�WKH�´UHJDUGµ�WR�WKH�environment that the Basic Law so obligates. In other countries such as India, the bench has issued injunctions against companies resulting in the closing of factories, lower vehicle emissions, and directed the government to take positive action for the protection of the environment and the health of its citizens.46 The Constitution of India, Art. 48(A) is seen imposing an obligation on the government to protect the environment when it states that “The State shall endeavour to protect and improve the environment and to safeguard the forests and wild life of the country.”47 In other jurisdictions, there is no express clause mandating environmental action or a right to a healthy environment, but courts have used the “right to life” and a broad interpretation which encompasses the right to a healthy environment.48 Even in Hong Kong, Hartmann J in Air Foundation Ltd noted that it was possible that there was a prima facie arguable constitutional right to life imposing some sort of duty on the Government to combat air pollution even if it cannot be an absolute duty to ensure with immediate effect the end of all pollution.49 Ultimately, what is not wanted is the situation in Germany where the courts have limited interven-WLRQ�RI�LWV�MXGLFLDO�SRZHU�WR�FDVHV�RI�´FRPSOHWH�LQDFWLRQ�DQG�PDQLIHVWO\�LQVXIÀFLHQW�DFWLRQµ�DQG�QR�FDVH�KDV�ever succeeded on the basis that the legislature violated its duty to protect.50 In Hong Kong, courts should not be hesitant to, on the basis of policy grounds, refuse to review the decisions of the executive where

42 6HH�%U\DQ�%DFKQHU��¶7KH�&DVH�IRU�DQ�(QYLURQPHQWDO�/DZ�&RXUW�LQ�+RQJ�.RQJ��3DUW���·��������+RQJ�.RQJ�/DZ\HU��KWWS���ZZZ�KN�ODZ\HU�FRP�,QQHU3DJHVBIHD-tures/0/992/2003/4> accessed 29 April 2012: “Likewise in Hong Kong, it appears that while the judiciary take environmental issues seriously, they view the problem as technical rather than substantive. An investigation of current litigation reveals that in their decisions concerning environmental disputes, the courts of Hong Kong overlook the environmental substance of the problem while emphasizing the procedural aspects of a case”. 43 Louis J. Kotzé & Alexander R. Paterson, !e Role of the Judiciary in Environmental Governance (Wolters Kluwer 2009) 24.44 Leatch v National Parks and Wildlife Service (1993) 81 LGERA 270.45 Ibid., 282-283.46 T.Damodar Rao v !e Special O$cer, Municipal Corporation of Hyderabad AIR 1987 AP 17147 !e Constitution of India, Article 48(A). See also Sukanya Pani, ‘Comparative Analysis of Environmental Activism through Constitutional Rights: Two Case Stud-ies: India and Hong Kong’ (Civic Exchange, December 2002) <http://www.civic-exchange.org/wp/wp-content/uploads/2010/12/2002_sukanya.pdf> accessed 25 April 2012.48 See the European Union case of Tatar v Romania [2009] ECHR where the court stated that Romania did not su$ciently evaluate the possibility of damage to the plainti" ’s health violating the right to life.49 Clean Air Foundation Ltd & Another v Government of HKSAR [2007] HKEC 1356 [17]-[42]. See also Berry Fong Chung Hsu, ‘Constitutional Protection of a Sustainable En-vironment in the Hong Kong Special Administrative Region’ [2004] J. Env. L. 193, 201: “The right to life provision has to be read together with Article 119 of the Basic Law. Therefore, the HKSAR Government has a constitutional duty to take all necessary and essential measures to preserve life because failure to do so would be construed as unlawful deprivation of life.”50 Eckard Rehbinder, ‘Germany’ in Louis J. Kotzé and Alexander R. Paterson (eds), The Role of the Judiciary in Environmental Governance (Wolters Kluwer 2009).

-21-

Conclusion

Air was, is, and will continue to remain one of the most important natural resource that Hong Kong has, and increasing damage and air pollution means damage to the health and economy of this city. Although the judiciary is limited in the range of actions that it can take without violating the separation of powers doctrine, and accepting the fact that Hong Kong is an executive-led government, it must not abdicate its responsibility. The constitution lays out clear obligations of the government to pay regard towards the environment in conjunction with various trades, and the court, when it receives the chance, should interpret the scope of this article to force government action. Although it has been noted as “loosely appended” to an explicit directive to the Government of the SAR to promote the development of trades, the court can still give important impact and scope to such a directive.51 In the coming years, courts will have the chance to de-ÀQH�DQG�SRVVLEO\�H[SDQG�WKH�VFRSH�RI�$UWLFOH�����WR�FUHDWH�DQ�DIÀUPDWLYH�GXW\�WR�QHFHVVLWDWH�WKH�JRYHUQPHQW�of Hong Kong to review environmental legislation regarding air quality, and require steps recommended by international organizations such as the World Health Organization, and enforce these necessary protections. Hong Kong’s economy, and its subsequent economic growth, has always been of paramount im-portance to its leaders52 and citizens, and the Basic Law leaves no doubt the notion that its continued eco-nomic growth is necessary.53 Even though since the 1990s, the policy of “sustainable development” was noted high on the government’s priorities, as a mixture between economic growth and protection for the environment,54 the environment in Hong Kong is still poorly managed. The reason for economic growth is to preserve the “health” of Hong Kong,55 yet it must be noted that unbridled growth in the face of worsening environmental conditions, not only fails to take into regard different aspects of “health”, but also ignores impact that citizens’ and the environment’s heath affects the economic conditions of Hong Kong. It is clear in this global age of sustainable development that the economy and the health of its citizens are not mutually exclusive – natural resources such as air must be protected from pollution.56

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51 Roda Mushkat, ‘Environmental Problems and Policy Response in Hong Kong: An Evaluation From an International Legal Perspective’ in Ko Swan Sik and J.J.G. Syatauw and M.C.W. Pinto (eds), Asian Yearbook of International Law, 1992 (Brill 1992) 118.52 6HH�%��%DFKQHU��¶7KH�&DVH�IRU�DQ�(QYLURQPHQWDO�/DZ�&RXUW�LQ�+RQJ�.RQJ��3DUW���·��+RQJ�.RQJ�/DZ\HU��$SULO��������KWWS���ZZZ�KN�ODZ\HU�FRP�,QQHU3-DJHVBIHDWXUHV�������������!�DFFHVVHG����$SULO�������(YHQ�GXULQJ�WKH�$LU�3ROOXWLRQ�&RQWURO�2UGLQDQFH·V�FUHDWLRQ��LW�ZDV�QRWHG�WKDW�ODZPDNHUV�ZHUH�FRQFHUQHG�with an appropriate balance between social and business interests, instead of the costs and consequences of pollution. 53 Basic Law Art. 109: “The Government of the Hong Kong Special Administrative Region shall provide an appropriate economic and legal environment for the PDLQWHQDQFH�RI�WKH�VWDWXV�RI�+RQJ�.RQJ�DV�DQ�LQWHUQDWLRQDO�ÀQDQFLDO�FHQWUH�µ54 Roda Mushkat, ‘Environmental Problems and Policy Response in Hong Kong: An Evaluation From an International Legal Perspective’ in Ko Swan Sik and J.J.G. Syatauw and M.C.W. Pinto (eds), Asian Yearbook of International Law, 1992 (Brill 1992) 117.55 6HH�/HDK�+\VORS��¶,V�+RQJ�.RQJ·V�SROOXWLRQ�GULYLQJ�H[SDWV�DZD\"·��7KH�7HOHJUDSK������-DQXDU\��������KWWS���ZZZ�WHOHJUDSK�FR�XN�H[SDW�H[SDWQHZV���������Is-Hong-Kongs-pollution-driving-expats-away.html > accessed 29 April 2012.56 6HH��JHQHUDOO\��*RYHUQPHQW�RI�+RQJ�.RQJ��¶6XVWDLQDEOH�'HYHORSPHQW·��)HEUXDU\��������KWWS���ZZZ�JRY�KN�HQ�UHVLGHQWV�HQYLURQPHQW�VXVWDLQDEOH�GHY�KWP!�DFFHVVHG����$SULO�������=KRQJ�;LDQJ�=KDQJ��¶,QWHJUDWHG�HFRQRP\�HQHUJ\�HQYLURQPHQW�SROLF\�DQDO\VLV��$�FDVH�VWXG\�IRU�WKH�3HRSOH·V�5HSXEOLF�RI�&KLQD·�>����@��������(QHUJ\�3ROLF\������/L�*DQ�6KXQ��¶7R�$FKLHYH�´'RXEOH�:LQµ�RI�(FRQRP\�DQG�(QYLURQPHQW�E\�'HYHORSLQJ�&LUFXODU�(FRQRP\·�>����@�������-RXUQDO�RI�Hebei University (Philosophy and Social Science) 36

Natural Disaster Aid and Its Polemic

BackgroundNatural Disaster Aid and Its Polemic Disaster, a word that often rings in our ears, the ears of the people of this republic, yes, the republic that is often overridden this disaster is our beloved country, the Republic of Indonesia. Disaster itself can be caused by so many various factors, either because of natural, human error, as well as various other caus-es. However, one sure thing that every disaster comes up with, can be sure to have similar point, namely, GDPDJH��ORVV�RU�VXIIHULQJ�GLIÀFXOWLHV��ERWK�PRUDOO\�DQG�PDWHULDOO\��,Q�WKLV�SDSHU�� WKH�IRFXV�RI�ZKLFK�ZLOO�be discussed disasters are natural disasters, it is caused by natural disasters, damages, losses and suffering caused by nature, but it is not possible to natural disasters can not be separated from their hand-made act of irresponsible and not respect for the natural existence.Disaster, as has been just described above, which could certainly impact the loss and suffering for those affected, it is not impossible also override the various instruments of government, public facilities, which provide the government, infrastructure which is intended to support in the areas of social life affected by the disaster, to those who devote themselves to serving the various needs of the community and to execute what has been mandated laws to them Of course,it is undeniable, that the disaster could easily burst into life joints joints that have been laid out so long with the cooperation between the government and its people, including element of law enforcement can not be denied as one of the most important joints in the life of its functions which aims to create public safety and achieve goals with community goals. whereas, as we all know, in terms of law enforcement is a vital element that must be maintained sustainably, to keep the climate and conditions of the affected area remains conducive and safe, as does the process of disaster relief by the government, through lowering the rescue team, Volunteers collect, gather food supplies and other survival needs, to collect donor donors both from domestic and abroad to come together to assist in the survival of their brothers affected. Because after all the things described above can be categorized as life support and survival of victims of natural disasters, especially when associated with the assistance of donor assistance yanng im-ported by donors, both from within and abroad. Because, it is undeniable that the donor s in fact also helped maintain the public safety of the state of chaos and riot caused shortages needs to survive. However, it is unfortunately very unfortunately, seeing fact the reality when there are still many people who hang up and they hope to help aid expected to come and visited them, but in fact many aid were diverted and did not even come to those in need. The above events was inevitable rife in our country in a series of natural disaster management implementation that has actually been mandated laws and constitution to be implemented as well as based on the principle of principles2 which will be described further. Although earlier we mentioned that the above cases rife in our country however, can not be cov-ered by the fact that many countries are experiencing similar cases such as Rwanda affected by natural disasters of earthquake and allocate costs for the renovation of schools who are victims, but funds are not disbursed sebgaiamana used properly and no one sekolahpun impact of renovation, due to the nominal funds that should go down not in accordance with the nominal funds received3.� 3OXV�WKH�IDFWV�RI�WKH�FDVH�LQ�ÁRULGD�XQLWHG�VWDWHV��UHODWHG�WR�KXUULFDQH�GLVDVWHU�UHOLHI�IXQGV�WKDW�RF-curred and handling procedures are not in accordance with the provisions of existing regulations and, further, to see a lot of handling hurricane miscalculation good amount of money that should go down and data data VFLHQWLÀF�GDWD�UHODWHG�WR�WKH�KXUULFDQH�KDSSHQHG

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written by : Bhredipta Cresi Socarana, Alsa Indonesia

Legal Background

Natural disaster such as embodied in the regulations governing the management of natural disasters, that the natural disaster should be grounded in the principle of equality before the law and government and followed by the principle of order and rule of law along with another series of principles contained in it5, but of course we certainly can not leave the principles which must be upheld in a disaster such as fast respond appropriate, based on priority, are transparency and accountability. Because, basically, disaster management aims to provide protection to the public from any hazards that could undermine public safety which also caused by unharmonize or contrary regulations WKDW�KDYH�EHHQ�GHÀQHG��,Q�DGGLWLRQ��WKHUH�DUH�FRXQWHUPHDVXUHV�WKDW�ZHUH�H[SHFWHG�WR�JXDUDQWHH�WKH�LPSOH-mentation of integrated disaster management in a planned coordinated and comprehensive diharapkanm can create peace in the society, nation and state6. Disaster management in practice would require an adequate supply of relief supplies to be able WR�UHDOL]H�WKH�SUHYLRXVO\�VWDWHG�DERYH��GXH�WR�WKH�SUHVHQFH�RI�VXIÀFLHQW�VXSSO\�RI�UHOLHI�VXSSOLHV�LV�H[SHFW-ed to help and meet the needs of residents affected by natural disasters in order to immediately restore the condition of the inhabited areas and to ensure the sustainability of the existence of the affected area.� 5HÁHFWLQJ� WKH�FDVH� UHODWHG� WR�FDVHV�RI�QDWXUDO�GLVDVWHU� UHOLHI��DV� WKH�FDVH�RI�SURFXUHPHQW�RI�ÀVKLQJ� ERDWV� WR� KHOS� WVXQDPL� YLFWLPV� LQ�:HVW� -DYD� DQG�&HQWUDO� -DYD�� IRU� H[DPSOH��0LVDSSURSULDWLRQ�of aid has been dragging Asep and Ade Kusuma Hartiyoman prisoner to a chair. Together these two JRYHUQPHQW�RIÀFLDOV�LQ�:HVW�-DYD��WKH�&RUUXSWLRQ�(UDGLFDWLRQ�&RPPLVVLRQ�GUDJ�SULYDWH�HQWUHSUHQHXUV��David K Wiranata. Director Darmaja Buntala Brothers was considered a crime of corruption in 2009. Corruption cases or victims fund the earthquake also occurred in Bantul, the mode is to cut funding for the reconstruction of the earthquake victim's home. Heavily damaged homes should get help 15 million dollars per house, but the defendant cut by 5 to 7 million grant rupiah. Trial alleged corruption in West Sumatra earthquake also occurred, with amount of Rp500 million. Defendant is Humizri Hussein, head of the Social Welfare Agency (BKS) Riau. The defendant ordered his subordinates to issue two checks from the account of earthquake relief funds Bengkuku and West Sumatra. Funds for earthquake victims /LZD��/DPSXQJ�DOVR�ZDV�SDUWO\�DOVR�VWROHQ�E\�XQVFUXSXORXV�SXEOLF�RIÀFLDOV�LQ�WKH�DUHD� Then it can be drawn that an initial hypothesis in a natural disaster assistance schemes, it may appear natural disaster aid three polemics such as, related sources of aid, channeling bantun and receipt of assistance7. Related sources of help, in case of problems in the source of help came from, it appears unclear sources of assistance related to the nominal value of assistance, thatoften occurs during a disas-ter, government leaders at every level will tend to only pledging aid to lips service. This obscurity can FHUWDLQO\�EH�XVHG�E\�JRYHUQPHQW�RIÀFLDOV�WR�WKH�FRQWUDU\��EHFDXVH�WKH�SRVVLELOLW\�RI�JRLQJ�ERWWRP�XS�RU�top down.

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Second, the distribution of aid, channeling potential pengeyelewangan in disaster relief funds. The potential for corruption that emerged from this second scheme certainly arise in disaster because of course it is common knowledge that builds coordination among government agencies at all levels from central to regional governments, as well as the region itself, not tertanamanya principles of good gover-nance into lack of coordination, one of the factors. Especially if it is associated with the source and value WUDQVSDUDQWDVL�ZLOO�EH�DEOH�WR�LQYLWH�RIÀFLDOV�HPEH]]OH�DQG�PLVDSSURSULDWH�DLG��7KLV�LV�IXUWKHU�H[DFHUEDWHG�by the nature of corruption that is rooted in the bureaucratic apparatus, which further exacerbated the natural disaster. The third polemic related to disaster relief recipients, which in this third category, the situation EHFRPHV�PRUH�FRPSOH[�ZKHQ�WKH�UHFLSLHQW�EHFRPHV�VHOI�FHQWHUHG��VHOÀVK�DQG�GLG�QRW�H[DFWO\�UHVXOW�LQ�WKH�delivery of disaster aid. At this point, if not doing a good law enforcement, oversight, transparency and ac-countability are good, based on existing laws, then it will happen corruption teaching or misappropriation of resident funds by our resident, which will impact on public safety due to the many needs unmet needs of the population during natural disaster. And, in fact Indonesia has had a series of regulations that require accountability of disaster man-DJHPHQW��%XW�WKH�HQIRUFHPHQW�RI�DQ\�LUUHJXODULWLHV�LQ�WKH�KDQGOLQJ�RI�WKH�GLVDVWHU��SDUWLFXODUO\�ÀQDQFLDO�assistance, is still low8. As a result, the accountability of disaster has not been fully successful run. This has been a stumbling block for the creation of the appropriate public safety expectations of the people all of the natural disaster settings. Moreover, when considering the amount of aid channeled donor to cope with natural disasters, such as those obtained in the tsunami in Aceh in 2004, the United Nations (UN) contributed U.S. $ 371 million, the United States contributed U.S. $ 350 million, the European Union U.S. $ 13.3 million , and fund-raising through the media of the results of Rp67 billion. The numbers are more DEXQGDQW�DQG�WHPSWLQJ�DQG�VHGXFWLYH�IRUFHV�RIÀFHUV�ZKR�DUH�QRW�UHVSRQVLEOH�IRU�DEXVHV��7KLV�KDV�EHHQ�WKH�government should get more attention because it relates to the welfare of the affected communities, plus the reputation and good name of the unitary republic of Indonesia in the eyes of the international associa-WLRQ��WKH�PRUH�VWUHVVHG�WKH�LPSRUWDQFH�RI�VXSHUYLVLRQ�DQG�FRQGXFW�RI�ODZ�HQIRUFHPHQW�VWHSV�WKDW�TXDOLÀHG�for three polemic that has been described above.

Conclusion

It may be inferred that, although the government has had a series of legislation that should be HQRXJK�WR�SURWHFW�WKH�ULJKWV�RI�YLFWLPV�RI�QDWXUDO�GLVDVWHUV��EXW�LQ�UHDOLW\��LW�GRHV�QRW�JXDUDQWHH�WKH�IXOÀOO-ment of the needs of society, seen from some of the cases described above, it can be concluded, that the mere regulation of any polemic can not prevent abuse in the management of natural disasters, which, if traced further try to disrupt and cause disturbances that may jeopardize public safety state of the affected area.It is inevitable that the quality improvement and quality of personnel involved in disaster management is the only effective way was to anticipate, eliminate or at least reduce the corruption that exists. Capacity EXLOGLQJ� DV� D� VHULHV� RI� VWUDWHJLHV� DLPHG� DW� LPSURYLQJ� WKH� HIÀFLHQF\�� HIIHFWLYHQHVV� DQG� SHUIRUPDQFH� RI�government resposnitywith focus on the dimension (1) human resource development, (2) strengthening the organization, and (3) institutional reform9. Expected by applying the principle of capacity building to realize good governance of natural disaster relief in case of natural disaster, so it can minimilaizing public safety interference problems.

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International Board shoutouts

Melinda Mae Lapus : As our world becomes increasingly globalized and intercon-nected, ALSA now has the opportunity to reach a wider group of nations and students as we work towards becoming the premiere law student organization in Asia. I look forward to working with the different national chapters this coming year, and seeing our various projects come to fruition, for the betterment of ALSA as an international organization. Ario Putra Pamungkas : ALSA is more than just a student association, this is the place where a law student could improve more than just their legal skill but also diplo-PDWLF�DQG�VRFLDO�VNLOO��LQWHUQDWLRQDOOO\��$/6$�LV�WKH�SODFH�ZKHUH�\RX�FRXOG�ÀQG�\RXUVHOI�D�family and friend wrapped into one thing which is the members of ALSA itself and with its large scope of law students ALSA promises you that being a law student is the right choice for your future.

Dami Park : Hope to see you in the AC or AF!

Gwen Laungwattanawanich : ALSA is not only a club or a network, it actually an association. By that it means we all will grow together as one. So I want to encourage you all to participate in ALSA activities as much as you can because from that you will not only gain valuable experience, you also will extend and enhance our organization at the same time.

Tan Sue Yinn (Sueann) : This is the place where you really get to explore the other side of craziness in you. A place you can call home as the members are always behind your back to help you out.

Peeraphan Piyatamrongrat : I am happy to serve my Academic Service to all ALSA members and anything could help , please let me know. You can talk to me in every pos-sible or impossible things, I am sure I am crazy enough to be your friend. Any Comments , I am ready to know that and What about you ? Are you ready to make ALSA better with us.in every possible or impossible things, I am sure I am crazy enough to be your friend. Any Comments , I am ready to know that and What about you ? Are you ready to make ALSA better with u.

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CONTACT US

ALSA International Boardcontact@alsa-intl.orgwww.alsa-intl.org

ALSA Brunei Khaliilah Khalid (President)brunei.alsa@gmail.com

ALSA ChinaLawrence Sham (President)alsachina1@gmail.com

ALSA Hong Kong Sandra Chakrabarty (President)alsahongkong@gmail.com

ALSA Indonesia Mikel Kelvin Simatauw (President)indonesia.alsa@gmail.com

ALSA Japan Manami Okuda (President)alsajapan1@gmail.com

ALSA Korea Jin Young Kim (President)korea.alsa@gmail.com

ALSA Laos Vicky Vieng Inthavong (President)alsalaos1@gmail.com

ALSA Malaysia Surendra Ananth (President)alsamalaysia1@gmail.com

ALSA Philippines Jian Boller (National Secretary General)alsaphil.alsp@gmail.com

ALSA Singapore 0RX�=RQJ[LDR��3UHVLGHQW�alsa.singapore@gmail.com

ALSA Taiwan Lenny Yang (President)alsataiwan1@gmail.com

ALSA Thailand YuYu Komine (President)Thailand.alsa@gmail.com

ALSA Vietnam Thu Giang (President)alsa.vietnam@gmail.com

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by: Anudporn Titapich