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Prototype Constitutional Supervision in China: The Lessons of the Hong Kong Basic Law Committee

Published online by Cambridge University Press:  23 March 2016

Eric C. IP
Eric C. IP*
Affiliation:
The Chinese University of Hong Kong, Hong Kongericip@cuhk.edu.hk
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Abstract

Recurrent proposals to establish a constitutional supervisory committee have been pertinaciously rejected in spite of widespread recognition of the Chinese Constitution’s ineffectiveness. And yet, the Hong Kong Basic Law Committee has long epitomized in practice a prototypic form of constitutional supervision. Vested with quasi-judicial competences, the Committee seemed destined for a central role under the “One Country, Two Systems” arrangement. The tight secrecy imposed on its proceedings and the suppression of its potential to act consistently and with a distinct identity have fatally undermined the Committee’s ability to modulate constitutional tensions by way of coordinating expectations of the Basic Law’s proper meaning. The experience of the Basic Law Committee reveals the recalcitrance of the Party-state toward constitutional interpretation by any specialized body, even one whose powers are heavily circumscribed and whose membership is tightly controlled.

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Type
Articles
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Asian Journal of Comparative Law , Volume 10 , Issue 2 , December 2015, pp. 323 - 342
Copyright
© National University of Singapore, 2015 

None of the four Constitutions of the People’s Republic of China has ever been treated by the Party-state as law binding upon itself in any practical sense.Footnote 1 The current Constitution of 1982 “has not become the standard for judging the behaviour of state organs”;Footnote 2 is not “living” in the sense of being applied by the courts to legal cases;Footnote 3 “lacks legal effect in reality”;Footnote 4 and does not actively protect constitutionally enumerated rights.Footnote 5 Moreover, whatever constitutional review competence that does exist in the Standing Committee (NPCSC) of the National People’s Congress (NPC) is “ineffective”: the NPCSC has never once declared any law or regulation unconstitutional.Footnote 6 Consequently, no publicly available legal remedy for any breach of the Constitution by the state exists.Footnote 7

Constitutionalism “has remained dead or, at best, dormant”,Footnote 8 even whilst the Party leadership under General Secretary Xi Jinping has, in its rhetoric, increasingly emphasized the importance to the nation’s future of implementing the Constitution.Footnote 9 Over time, a broad consensus has emerged within the Chinese legal academy that a Constitutional Supervision Committee (宪法监督委员会) should be established within the NPCSC to facilitate genuine constitutional enforcement amid upholding the NPC’s sovereignty and conserving the Constitution’s text intact.Footnote 10 Despite broad academic acceptance and the legal feasibility of this proposal, the Party leadership has so far resisted it.Footnote 11

This article demonstrates how the origins, evolution, and fate of the Committee for the Basic Law of the Hong Kong Special Administrative Region under the Standing Committee of the National People’s Congress (全国人民代表大会常务委员会香港特别行政区基本法委员会), informally known as the Basic Law Committee (BLC), may shed light on the possibilities for constitutional enforcement in mainland China. Since 1997, the BLC has been described as an “integral element”Footnote 12 of the framework of the Basic Law of the Hong Kong Special Administrative Region of the People’s Republic of China (Basic Law) – that fundamental national law of the NPC which functions as the constitutional charter of the former British dependency,Footnote 13 as well as a “bridge”Footnote 14 between the antithetical legal traditions of the two jurisdictions that is “self-evidently important”.Footnote 15 Initially designed as a “high-powered” institution,Footnote 16 the BLC is to be consulted by the NPCSC whenever the latter intends to invalidate Hong Kong legislation; make or unmake a Chinese national law applicable to Hong Kong; interpret the Basic Law; or even amend the Basic Law – the four significant domains of possible conflict between Hong Kong and the central government of China.Footnote 17

The BLC is thus a most anomalous institution in the universe of constitutional bodies and at the least a “major modification” of the Chinese system of constitutional interpretation.Footnote 18 It deserves recognition as the prototype of constitutional supervision institutions in China. Vested with “quasi-judicial” powers,Footnote 19 the BLC seemed destined to evolve into an exemplar of the future of constitutionalism in all of China – an authoritative constitutional supervisory body mitigating disputes of capital importance between Hong Kong and its sovereign.Footnote 20 In the event, however, the BLC was to be censured for its failure to harmonize legal relations between the mainland and Hong Kong;Footnote 21 its incapacity to play more than “a decorative role” in the politics of constitutional interpretation;Footnote 22 and its passivity in resolving actual legal disputes.Footnote 23 Indeed, the protracted interpretive impasse between Beijing and Hong Kong over the proper meaning of the Basic Law provisions on electoral reform has become a source of political instability, injecting a streak of uncertainty into the Special Administrative Region’s future.Footnote 24 Discontent with the pace of constitutional developments boiled over when tens of thousands of protestors defied riot police to take part in the so-called “Umbrella Movement” that occupied the streets of Hong Kong for almost eighty days in late 2014.Footnote 25

This article fills a gap in the Chinese constitutional law and politics literature by undertaking an original analysis of the BLC’s evident impotence to defuse mainland-Hong Kong tensions. Its intuitive thesis is straightforward: Beijing and the pro-democratic social and political forces in Hong Kong are locked in a coordination dilemma.Footnote 26 Both share an interest in finding common ground so as to avoid extra-constitutional conflict and chaos, but rank available alternatives divergently.Footnote 27 In situations like this, where payoffs alone do not rationally determine expectations,Footnote 28 a focal point or psychological cue enjoying “prominence, uniqueness, simplicity, precedent, or some rationale that makes [it] qualitatively differentiable from the continuum of possible alternatives”, could exert “the intrinsic magnetism of particular outcomes”.Footnote 29 Interdisciplinary-minded legal scholars have deployed this “focal point” insight to explain the immense influence wielded by constitutional and international courts despite their lack of any power to enforce compliance.Footnote 30 It would follow that no future Chinese Constitutional Supervision Committee could expect to make any real difference unless it can generate “focal points” – viz. authoritative, unambiguous, widely publicized opinions on the Basic Law’s meaning – which induce a convergence of expectations between disputants as to what should be chosen in a given situation.

This article makes three main points. First, an examination of the Basic Law’s drafting process reveals that there had been a real possibility for the BLC to become a generator of influential focal points in post-1997 Hong Kong. Second, the main reason why the BLC failed to attain a consequential role was not necessarily because of any lack of authority to make binding opinions, but because of the tight secrecy which the NPCSC imposed on its proceedings and reports, and because the NPCSC and some of the BLC’s own members stifled any autonomous corporate identity that might have emerged. Neither outcome was entailed in the Basic Law or its framework. Third, the BLC experience exposes the obstacles to creating a genuine constitutional supervisory body, even within the four walls of the Party-state establishment.

I. DESIGNING THE BASIC LAW COMMITTEE

Running to 160 articles, the Hong Kong Basic Law is a document detailed and exact enough to merit being regarded as a pre-commitment device aimed at restoring confidence in a Hong Kong without British administration. The drafters of the Basic Law would have sought to mitigate the credibility problem of Deng Xiaoping’s “One Country, Two Systems” formulaFootnote 31 in light of the cynicism that greets promises made by the Chinese Communist Party, which are widely assumed to be binding on them only so long as they find it advantageous in any particular instance to be thus constrained.Footnote 32

The document looks designed to accommodate the expectations of Hong Kong residents for more autonomy and, eventually, electoral democracy. It provides that the Special Administrative Region shall exercise “a high degree of autonomy and enjoy executive, legislative and independent judicial power, including that of final adjudication”Footnote 33; avows that in Hong Kong the “socialist system and policies shall not be practiced’”Footnote 34 and prohibits any department of the Chinese State Council, or any mainland Chinese province, autonomous region, or municipality, to intervene in the region’s internal affairs.Footnote 35

Nevertheless, from early on, the mainland insisted that the Basic Law was no more than a national statute enacted under the Constitution of the People’s Republic of China.Footnote 36 This was reflected in China’s approach to the future resolution of the Basic Law’s inevitable ambiguities in the provisions on electoral reform towards universal suffrage,Footnote 37 according to which the NPCSC must be the supreme interpretive authority. The power of the NPCSC to issue “Interpretations” of the Basic Law under Article 158 entitles it to intervene in virtually every matter concerning Hong Kong, in unqualified terms, whenever it deems fit. Beijing’s insistence in this regard stirred much controversy, especially in Hong Kong, during the Basic Law’s five-year drafting process.Footnote 38 Even several Hong Kong drafters apprehended a need to prevent the NPCSC interpreting the Basic Law at will, lest Hong Kong’s autonomy be compromised.Footnote 39

China’s lack of a constitutional court moved Hong Kong intellectuals to seek out an independent institution that could fulfil such a role.Footnote 40 Victor Sit, then-senior lecturer of Geography at the University of Hong Kong, was in January 1986 among the first Hong Kong public figures expressly to propose to Lu Ping, Deputy Secretary General of the Drafting Committee, the establishment of a “Hong Kong Basic Law Committee” to participate in interpreting Basic Law provisions relating to the Chinese central government with finality.Footnote 41 By April the same year, the relevant subgroup of the Drafting Committee had begun to conceive of a “special committee” consisting of Hong Kong members but under the National People’s Congress to do just that.Footnote 42

By December 1987 a consensus appears to have emerged amongst the drafters that the NPCSC should be obliged to consult the Basic Law Committee (as it had come to be known) before rendering important decisions regarding the Basic Law.Footnote 43 The Draft Basic Law published in April 1988 had settled on the principle that the NPCSC “shall consult” the BLC “before giving an interpretation” of the Basic Law.Footnote 44 According to Rayson Huang, Convenor of the Subgroup on Central-Local Relations of the Basic Law Drafting Committee, the BLC was meant to countervail, in case of conflict, the Basic Law’s overarching emphasis on “One China”.Footnote 45

The perception became ascendant in Hong Kong that the BLC was a means to protect the region’s autonomy through the rule of law and with a new jurisprudence that would join up the divergent common law and socialist traditions of both sides.Footnote 46 Within the broad contours of this ideal, concerned Hong Kong residents relayed to Beijing a number of concrete ideas about the BLC’s proper role: that it should be vested with the authority to review the Basic Law-consistency of Hong Kong laws and to allocate jurisdiction between the NPCSC and the Hong Kong Court of Final Appeal in cases that impinged on China’s sovereignty.Footnote 47 Eminent pro-Beijing educator and Hong Kong NPC deputy Ng Hong-mun publicly advocated more powers for, and that Hong Kong members make up the majority on the BLC.Footnote 48 Enthusiasm in Hong Kong for the BLC waxed so great that mainland drafters were forced to reject explicitly the most aggressive proposal of all, to legally obligate the NPCSC to adopt each and every recommendation made by the BLC.Footnote 49 Calls for the BLC’s empowerment strengthened after the Tiananmen Square crackdown of 1989, which dealt a blow to the credibility of China’s precommitment to Hong Kong’s post-1997 autonomy, causing waves of mass migrations from the dependency. There emerged suggestions for the BLC to function as a European-style constitutional court consisting of an equal number of mainland Chinese and Hong Kong judges.Footnote 50

The final text of the Basic Law vests the BLC with four formal competences: to be consulted before the NPCSC invalidates any enactment of the Hong Kong Legislative Council for incompatibility with the Basic Law’s provisions respecting the central authorities’ responsibilities or relationship with the Region;Footnote 51 to be consulted before the NPCSC adds or deletes legislation on defence, foreign affairs and the like to be made applicable through Annex III of the Basic Law;Footnote 52 to be consulted before the NPCSC interprets the Basic Law;Footnote 53 and to submit its views prior to the NPC deciding on a bill for the amendment of the Basic Law.Footnote 54

On 4 April 1990 the NPC issued a very rudimentary organic instrument for the BLC as a “working committee” under the NPCSC, to consist of twelve members, “including persons from the legal profession”, appointed by the NPCSC for a period of five years, and charged with the responsibility to “study questions arising from the implementation of Articles 17, 18, 158, and 159 of the Basic Law” and to “submit its views” to the NPCSC.Footnote 55 Whilst no provision specified how the six mainland members might be chosen, the six from Hong Kong were to be drawn from amongst permanent residents who held no foreign passports, and who had received the joint nomination of the Chief Executive, the President of the Legislative Council, and the Chief Justice. The document left unspecified the BLC’s internal procedure.Footnote 56

Scholars have noted the similarities between the BLC and central-local coordinating bodies in other countries, such as Finland’s Åland Delegation, a joint commission consisting of an equal number of representatives from the autonomous islands and the national government. It plays an essentially consultative role and lacks the power to take final decisions.Footnote 57 Additionally, the broadly worded provisions of the Basic Law left open the question whether the BLC might be endowed with the powers of an arbitration panel, thus assimilating it to the Judicial Committee of the Privy Council whose technically non-final opinion, and thus not a judgment, by constitutional convention had to be adopted by the sovereign: the Queen in Privy Council – the NPCSC mutatis mutandis. Because the Judicial Committee consisted only of judges, it was understandable that there were views, especially from Hong Kong, favouring the appointment of impartial, neutral experts to the BLC. Of course, unlike the Queen in Council, the NPCSC could issue binding interpretations of Hong Kong’s constitutional document outside litigation of concrete cases.Footnote 58 The fact that the BLC’s design might have been influenced by the Privy Council should not be surprising. After all, the Basic Law was ratified in part to memorialize China’s promise to conserve the status quo of the former British Dependency to the farthest extent possible.Footnote 59

The discussions about the BLC in Hong Kong occurred simultaneously with the undertaking of momentous constitutional reforms in the Soviet Union, a factor not lightly to be ignored in an analysis of the BLC, given the enduring Soviet influence over Chinese law and legal scholarship.Footnote 60 The amendment to the Soviet Constitution on 1 December 1988 provided for the establishment of a Committee of Constitutional Supervision for the Union of Soviet Socialist Republics.Footnote 61 Very much in the spirit of the Constitutional Supervision Committee found in mainland academic circles, the Soviet Committee was vested only with such non-binding advisory powers as to identify constitutional transgressions, and was carefully crafted to conserve the sovereignty of the Supreme Soviet.Footnote 62 Nevertheless, it was staffed by legal specialists and paved the way to a modern and effective system of constitutional review in Russia.

The BLC clearly had the potential to become a significant coordinator of disputes over the Basic Law’s meaning, even though China’s persistent authoritarianism meant that it would probably never become an activist, Western-style, constitutional court. It garnered much publicity throughout the drafting process: there was widespread speculation in Hong Kong, even amongst pro-Beijing figures, that it would play an important role in post-1997 Hong Kong. Nothing in the final text of the Basic Law forbade the BLC to produce “focal points” that would have been settled-on through the due process of deliberate, public, and transparent hearings; or prevented the evolution of a constitutional convention nudging the NPCSC toward endorsing each and every BLC recommendation;Footnote 63 or prohibited the BLC from being staffed with the most esteemed legal experts from Hong Kong and mainland China; or barred it from becoming a consequential legitimator of China’s latest policy regarding Hong Kong. On the eve of the resumption of sovereignty, Lau Siu-kai, member of the Preparatory Committee, stated his belief that the BLC would be a “very important” body.Footnote 64

II. THE BASIC LAW COMMITTEE IN ACTION

A. The Committee’s Role in Early Basic Law Interpretations

To secure disputants’ acquiescence in a given Basic Law interpretation, the BLC would have to be a publicly visible body whose acts were common knowledge to all interested parties;Footnote 65 however, the BLC’s visibility, at least in Hong Kong, was low from the very start. In the first year after China resumed sovereignty, it met only twice. The first time was in July 1997, when the members agreed trivial amendments to three national laws of China listed in Annex III. The second time was in October 1997, when it adopted a few very general principles into its Rules of Procedure, such as a requirement for members to participate in BLC meetings in person in accordance with a prescribed quorum.Footnote 66 Even so, hopes that the BLC would play a substantial role in modulating constitutional tensions were then still considered by some insiders to be achievable. For instance, Hong Kong member Albert Chen suggested that the Committee would eventually establish more substantive rules and precedents that would regulate hearings such that lawyers might represent clients before the BLC and cross-examine witnesses prior to the NPCSC issuing a Basic Law Interpretation.Footnote 67

The BLC was at last activated in 1999 when the NPCSC chose to issue an Interpretation in response to Ng Ka Ling v. Director of Immigration,Footnote 68 the first major Basic Law decision rendered by the nascent Hong Kong Court of Final Appeal, which unanimously invalidated the immigration law enacted by the handpicked Provisional Legislative Council. The ruling had triggered the Special Administrative Region Government’s fears of a spate of children from mainland China seeking to settle in the Region, estimated at 1.675 million in the ten years to follow, who would have precipitated severe social and economic crises.Footnote 69

In June 1999 the Hong Kong Chief Executive Tung Chee-hwa took the constitutional shortcut of inviting the NPCSC – via the State Council, controversially – to reverse the decision with an Interpretation. The BLC was summoned to Beijing to be “consulted”. The Committee was only given two and a half days to comprehend a “very thick” document dump – excluding submissions from the adverse parties; the BLC’s report was presented to the NPCSC anonymously and kept away from public scrutiny, “even though there is no secret in it”, reportedly in Hong Kong member Anthony Neoh’s words.Footnote 70 The InterpretationFootnote 71 dutifully reinstated the original anti-immigration policy on behalf of the Chief Executive.

Disquieted by the political movement that erupted after half a million people stormed the streets of Hong Kong on 1 July 2003 to oppose a Beijing-backed National Security Bill, the NPCSC took the offensive by announcing on 26 March 2004 that in its next meeting, to be held a week later, it would consider issuing an Interpretation on the Special Administrative Region’s political development. Again, the BLC was given just two days to remit a report to the NPCSC that never became public information.Footnote 72 The upshot was an Interpretation uttered sua sponte in less than ten days that imposed on the transitional regime of gradual democratization provided for in the Basic Law a further hurdle: a vetting process by the NPCSC before the promised liberalization of the most important electoral arrangements in the Region might be permitted.

Another Interpretation, issued just one year later, exposed the BLC’s impotence yet again. Tung’s resignation as Chief Executive in March 2005 ignited a constitutional controversy over the lawful length of his successor’s term of office. The NPCSC Legal Affairs Work Committee pre-empted public debate in Hong Kong by issuing a detailed statement concluding that the term should be no more than the two-year remainder of his predecessor’s term, an interpretation the plain language of the Basic Law cannot bear. Its rationale was widely suspected to be that Beijing was determined to keep Acting Chief Executive Donald Tsang, a British-trained civil servant with few connections to the local pro-China establishment, on a “short leash” during which he would have to prove his loyalty before being rewarded with a full five-year term.Footnote 73

Three weeks after Tsang petitioned for an Interpretation, the NPCSC ruled that whenever the office of Chief Executive becomes vacant, the successor’s term of office shall be the remainder of the predecessor’s; but conceded that this succession method might be amended after 2007.Footnote 74 The BLC’s role in this Interpretation was even more minimal than in the previous two. Departing from established precedent, the NPCSC suppressed the date of its meeting, frustrating Hong Kong journalists in interviewing the BLC’s members.Footnote 75 The fait accompli of a mainland legal opinion that had already been conclusively rendered by the Legislative Affairs Commission left the BLC no room for manoeuvre. Mainland BLC member Wang Zhenmin, himself an ardent advocate for a mainland Constitutional Supervision Committee,Footnote 76 admitted the NPCSC seemed to find more value in consulting the Hong Kong legal community directly, by holding “discussion sessions” with them in Shenzhen that bypassed the BLC.Footnote 77 The BLC was marginalized throughout the process, in the teeth of its salience in the Basic Law.

B. The Rise and Fall of Empowerment Proposals

There has been no shortage of proposals for empowering the BLC from prominent personalities in both Hong Kong and mainland China. In December 1999 Albert Chen reiterated his conviction that future Basic Law petitions addressed to the NPCSC should be entertained by the BLC in the manner of a law court, by adopting transparent judicial procedures and allowing both sides to present their submissions and arguments before delivering an impartial recommendation to the NPCSC.Footnote 78 His proposal was resolutely rejected by Hong Kong Secretary for Justice Elsie Leung, a future Deputy Director of the BLC, who argued that the Basic Law never intended the Committee to be a “court” or anything more than merely a consultative body. Leung’s reproof was an accurate prediction of the NPCSC’s upcoming attitudes toward the Committee.

In the aftermath of the 2005 Interpretation Cheng Yiu-tung, Deputy to the NPC from Hong Kong as well as a member of the elitist Hong Kong Executive Council and an influential figure in Hong Kong’s pro-establishment bloc, recommended that the NPCSC ought to consult the BLC even before deciding whether to interpret the Basic Law at all. He was immediately refuted by BLC director Qiao Xiaoyang, who insisted that the NPCSC cannot be bound by any convention or custom whatsoever.Footnote 79 It was not the first time Cheng had advocated empowering the BLC. In March 1999 he had recommended that the BLC should become a proactive body in established relation to the Court of Final Appeal, a stand publicly rebuked by Hong Kong member Raymond Wu, who asseverated that the BLC was meant to be a passive body under the Basic Law.Footnote 80

Whilst dismissing proposals to turn the BLC into an arbitral tribunal within the broad parameters of the Basic Law’s language, the NPCSC did make some efforts howbeit little-known, to develop the BLC’s role since 2006. The BLC Director was upgraded from deputy ministerial to full ministerial rank, co-equal to the directors of the various work committees of the NPCSC, thus elevating the BLC’s status to that of the NPC’s other permanent committees.Footnote 81 One of the mainland members was also elevated to the rank of Deputy Director, a position previously solely held by a Hong Kong member, presumably entailing greater mainland control over the BLC’s operations. The number of legally trained members was also raised from three to seven – slightly over half of the Committee – in a reshuffling of mainland members.Footnote 82 Two divisions within the Committee were set up – a General Office and a Research Office – which, ironically, became a permanent secretariat to a non-permanent body. Consisting of 25 full-time staff each, both offices were ranked official departments of the NPCSC and located in the same building that houses the better-known Legal Affairs Work Committee; the BLC’s Research Office thus becoming the first official body on the mainland to specialize in research on the Hong Kong Basic Law.Footnote 83

These reforms, however, did not substantially raise the salience or importance of the BLC in resolving constitutional tensions. Doubtlessly, the BLC participated in shaping the fourth NPCSC Interpretation, delivered in response to the Court of Final Appeal’s petition in a case relating to foreign state immunity policy in the Hong Kong courts. BLC members were present as observers when the NPCSC solicited the opinions of various members of the Hong Kong legal profession. Dissenting opinions within the BLC were communicated to the NPCSC,Footnote 84 and its research staff provided technical assistance in crafting out an Interpretation expressly intended to guide a common law court’s decision-making. Nevertheless, the BLC’s report to the NPCSC was kept confidential, as in all three previous Interpretations. There were no consultations. There was no way for any outsider to assess the content, let alone the meaningfulness of the BLC’s contribution. Any development of the BLC’s relevance did not exceed involving its members in making minor or procedural changes to the wording of Interpretations.

C. The Committee’s Corporate Identity

Together with the Macau Basic Law Committee patterned after it, the BLC is unique among Chinese State institutions in including an equal number of local and mainland Chinese members; its Hong Kong members must be endorsed by the heads of all three branches of the Hong Kong government. All members are appointed by the NPCSC. Contrary to the expectations initially raised, in practice the BLC’s composition (see Tables1-4) subverted its ability to cast for itself an independent corporate identity. Under the jealous guard of Beijing, the BLC has yet to see lawyers preponderate on either side. The mainland members of the Committee have continuously been drawn from the NPCSC Secretariat, the NPCSC Legal Affairs Committee, and the State Council Hong Kong-Macau Office. The BLC Directorship, always held by a mainland member, falls to functionaries engaged full-time in running the NPC Law Committee, the NPCSC Secretariat, or the NPCSC Legal Affairs Work Committee.Footnote 85 It is in one of these capacities, not in that of their BLC Directorship, that Qiao Xiaoyang and Li Fei have pronounced important NPCSC decisions affecting Hong Kong.Footnote 86 Several Hong Kong members concurrently served as NPC Hong Kong deputies, thereby perpetuating the blurring of the BLC’s corporate identity. According to Ng Hong-mun, the Chief Executive plays the leading role, in practice, in selecting and nominating BLC members, with the President of the Legislative Council and the Chief Justice merely acceding to his choice.Footnote 87

Table 1

First Hong Kong Basic Law Committee (1997-2003)

Table 2

Second Hong Kong Basic Law Committee (2003-2006)

Table 3

Third Hong Kong Basic Law Committee (2008-2013)

Table 4

Fourth Hong Kong Basic Law Committee (2013-2018)

In stark contrast to judges, or members of constitutional supervision committees elsewhere, many BLC members have never sought to distinguish themselves from partisan politicians or NPCSC bureaucrats. No introspective understanding is in evidence that they ought to abstain from taking part in controversial public debates, lest they be drawn into taking sides. The inability to keep aloof has forfeited the presumption of impartiality that was initially expected of the BLC,Footnote 88 enfeebling its capacity to produce focal and influential opinions.

The Hong Kong Court of Final Appeal justified its decision in Ng Ka Ling on grounds that unequivocally amounted to a claim of judicial supremacy. This aroused eminent mainland scholars, including BLC member Wu Jianfan, to launch into a sustained assault on the Court, going so far as to denounce it for seeking to make Hong Kong over into an “independent political entity”.Footnote 89 Within a month of that decision, Raymond Wu, BLC member from Hong Kong chimed in, famously excoriating his fellow residents for “superstitiously worshipping” common law judges; and describing opponents of the supremacy of NPCSC Interpretations as “patients” of an insane asylum.Footnote 90 Wu labelled the widely respected Chief Justice Andrew Li an “ignorant toddler”, and foreboded that the NPCSC, being so jealous of its sovereignty, would intervene to right the Ng Ka Ling wrong.Footnote 91

Similar examples abound. In October 2012 Elsie Leung, now Deputy Director of the BLC, apparently denounced Hong Kong judges for misconceiving the “true” relationship the Special Administrative Region has with the central government, and for making mistakes that had usurped Beijing’s sovereignty.Footnote 92 This sort of behaviour has raised concerns within the local legal profession that judicial independence may be at stake, compromised by senior politicians pressurizing judges.Footnote 93 Kemal Bokhary, a judge of the Court of Final Appeal, described Leung’s denunciation as unleashing “a storm of unprecedented ferocity [that dealt] a blow against the rule of law” in Hong Kong.Footnote 94

In April 2014, newly appointed BLC director Li Fei, acting in his capacity as NPCSC Deputy Secretary-General, nixed a reform proposal favoured by a substantial proportion of Hong Kong society to allow citizens to nominate candidates for Chief Executive.Footnote 95 Two months later nearly 800,000 Hong Kong residents participated in an unofficial electronic referendum, voting overwhelmingly for citizens’ nominations as the preferred method of electing Chief Executives.Footnote 96 Defying these sentiments, Li insisted that the Chief Executive must be “someone who loves the country and loves Hong Kong”.Footnote 97 On 31 August 2014 the NPCSC issued a contentious decision that vetoed citizens’ nominations for the Chief Executive election in 2017; imposed nomination thresholds hobbling pan-democratic politicians who seek candidacy; and ruled out universal suffrage for the Legislative Council general election of 2016.Footnote 98

Li justified this decision on the basis of China’s “sovereignty, security and development interests”: China could not afford to let Hong Kong be governed by a Chief Executive who might not be loyal to Beijing’s perception of Chinese national interests; there is no evidence that the BLC was substantially involved in the decision but for a perfunctory reference to it as among the many mainland bodies that the NPCSC “listen[ed] to”.Footnote 99 Elsie Leung, among other BLC members, lauded this decision as “reasonable”, “not conservative”, “unambiguous”, and “conducive to consensus-building”.Footnote 100

Individual BLC members took it upon themselves to lecture tens of thousands of defiant Hong Kong citizens discontent with the NPCSC decision who had begun to occupy busy streets on Hong Kong Island and Kowloon Peninsula in late September 2014. The tear gas and pepper spray inflicted by the riot police on peaceful protestors who had nothing but umbrellas to defend themselves with doubtlessly only galvanized people to participate all the more in the “Umbrella Movement”, which turned out to be the largest and longest pro-democracy rally in Hong Kong history, lasting seventy-nine days, and involving an estimated of 1.2 million participants at various times.Footnote 101 In November, Zhang Rongshun, Deputy Director of the NPCSC Legal Affairs Work Committee, who doubled as the mainland Deputy Director of the BLC, controversially denounced the Movement, in a meeting with 200 Hong Kong community leaders, as a Ukraine-style, foreign-backed “Colour Revolution” launched to undermine China’s national sovereignty.Footnote 102 Zhang even made what many considered a highly provocative remark, that the people of Hong Kong must be “re-enlightened” so as to embrace the Chinese national identity more fully.Footnote 103

The BLC, as a body, was uninvolved in mitigating issues throughout the whole conflict. Consistent with the socialist legal tradition, which regards the law as a political instrument of class oppression, the Committee made no attempt to project even so much as the appearance that legal considerations should prevail over political ones in determining the Basic Law’s meaning within the Chinese legislative system. Unsurprisingly, individual members seemed to value identities alternative to the BLC when expressing their views publicly.

III. IMPLICATIONS

Constitutional interpretation in China is thoroughly politicized. Expounding the meaning of the Constitution implicates unresolved political questions at the intersection of the Party leadership, the rights of citizens, and the authority of law.Footnote 104 No less politicized is the NPCSC’s Interpretation of a Basic Law that had incorporated many liberal provisions stemming from Hong Kong’s common law heritage.Footnote 105 It has increasingly been exploited as an instrument to ward off China’s long-standing fears that an electorally democratic Hong Kong would not only become uncontrollable, but would also trigger wealthier provinces and municipalities across China to demand greater autonomy.Footnote 106 The Party cannot risk the loss of de facto control over the Basic Law’s meaning.

The BLC experience has two major ramifications for the future of constitutional enforcement in China. First, with regard to legal matters of constitutional significance, Beijing is insistent on highly secretive internal discussions over against even cosmetic public participation and consultation.Footnote 107 This explains why the BLC has been denied every opportunity to make recommendations that could have meaningfully shaped the way Beijing approaches to the Basic Law. Anything short of maximal discretion in the interpretation of the Basic Law is misunderstood by Beijing as detrimental to national sovereignty, hence the NPCSC has yet to promulgate any transparent methodology for arriving at its Interpretations.Footnote 108

The evidence also indicates that the NPCSC itself is not a material actor when it comes to the most politicized matters concerning national security and sovereignty,Footnote 109 which are almost always at stake in Basic Law Interpretations – notwithstanding that it has made some real gains in power and autonomy over more routine policy domains in mainland politics in the past three decades.Footnote 110 After all, the selection of all of its members is controlled by the Organizational Department of the Communist Party.Footnote 111 The Chairman of the NPCSC, since 1993, has always been a member ex officio of the ultra-elite, seven-member Standing Committee of the Politburo.

The second major ramification of the BLC experience is that it redounds little to the support of the recurrent calls, at least since 1985,Footnote 112 by Chinese scholars for the establishment of a Constitution Supervision Committee within the National People’s Congress and/or for the NPCSC to exercise the power of constitutional supervision on behalf of the sovereign legislature.Footnote 113 A specialized body with a clear constitutional mandate would function better than the NPCSC, which is burdened by the massive workload assigned to it,Footnote 114 yet BLC atrophy indicates just how reluctant Beijing is to allow any kind of supervisory committee officially charged with quasi-constitutional functions to operate transparently, even a body staffed by people already politically vetted by the Party-state. And it appears that even NPCSC officials have an interest in preventing the BLC from developing a corporate identity apart from their own. As we have seen above, many BLC members have become the most zealous and publicly visible supporters of all positions taken by Beijing, blurring any differentiability between the BLC and other mainland government bodies.Footnote 115

The BLC experience echoes the fate of the abortive attempt by the Supreme People’s Court to “judicialize” the Constitution.Footnote 116 And the BLC shares the obscurity of the Filing and Review Office for Regulation, established in 2004 as a sub-unit within the Legal Affairs Work Committee and consisting of 13 staff members who review select legislation.Footnote 117 The Office is responsible for conducting preliminary research into constitutional review petitions lodged by public or private entities so as to decide whether they were eligible for consideration by appropriate NPCSC committees.Footnote 118 The Office, however, keeps a very low profile, lacks any formal competences of constitutional supervision, and operates in a way consistent with Beijing’s preference for resolving legal conflicts through informal consultation and opaque bargaining.Footnote 119

In this political climate the Party-state is unlikely to open what it considers the Pandora’s Box of judicial autonomy by vouchsafing to the NPCSC real constitutional supervisory powers pursuant to the Constitutional text, let alone the establishment of a Constitutional Supervisory Committee playing a salient, transparent role in enforcing the constitution under NPCSC auspices. Indeed, state leaders talking up the need for greater respect for the Constitution constantly reaffirm the Party’s immutable role in determining its meaning.Footnote 120 In a 2013 opinion article, for instance, Zhou Qian, the incumbent President of the Supreme People’s Court, stated, “the Party should operate within the bounds of the Constitution and the laws so as to truly realize the Party’s leadership over law-making, law enforcement, and law-abiding”.Footnote 121

IV. CONCLUSION

This article demonstrated that the Hong Kong Basic Law Committee epitomizes a prototypic form of constitutional supervision in the People’s Republic of China. Being closest to a constitution supervision committee within China’s existing constitutional framework, which prioritizes the legal supremacy of the People’s Congresses within the legal system and the political supremacy of the Communist Party, a detailed case study of the BLC has allowed us to glimpse, albeit imperfectly, the tolerance level of the Chinese Party-state towards such contentious issues as the constitutional enforcement and the rule of law.

The BLC originally had the potential to become a consequential constitutional body in Hong Kong’s post-British political framework. It was destined to participate in each and every Interpretation or Amendment of the Basic Law by Beijing. Nothing in the law prevented it from becoming an arbiter of constitutional disagreements, equipped with the ability to announce opinions on the Basic Law’s meaning in a rational and authoritative way that could coordinate the expectations of Hong Kong people and provide useful advice to the Chinese leadership on its policy towards the Special Administrative Region, as initially thought by many, including some of its members.

It turned out that China’s top leadership and senior NPCSC officials have taken the narrowest interpretation of the legal provisions on the BLC, seeing the Committee as nothing more than an ordinary non-permanent work committee. And yet such narrow interpretation of the BLC’s role, as well as full control over its composition, has yet to prevent state leaders from delegating greater discretion to the Committee. Being barred from conducting public hearings, publishing its proceedings, and staffed by individuals most of whom are not full-timers, the BLC has not been given any opportunity to produce any focal opinions on the Basic Law as a cohesive corporate actor. And the Committee appeared to have never been given the requisite time and resources to hammer out substantial opinions separately from drafts already prepared by the NPCSC. Indeed, the lack of public visibility, a cohesive corporate identity, and dedicated full-time members are key obstacles that must be addressed and eradicated by any serious proposal for a workable Constitutional Supervision Committee in China. Consequently, there was no room for the emergence of any custom tilting the NPCSC towards endorsing every recommendation made by the BLC.

Whilst a minimalist role is not indefensible as a matter of black-letter law, the marginal position of the BLC in mitigating mainland China-Hong Kong constitutional tensions in many ways represented a lost opportunity for experimenting with constitutional supervision: the BLC has not even been used as a device to give politically motivated Basic Law Interpretations greater procedural and legal legitimacy. And if China is unwilling to experiment with constitutional enforcement with the BLC in Hong Kong, there is a strong possibility that it will not, in the foreseeable future, be willing to entertain any proposals for a specialized constitutional body, even one with highly circumscribed powers. After all, the ‘One Country, Two Systems’ arrangement in the Hong Kong Special Administrative Region has long been utilized by Beijing as a field laboratory to test novel ideas and policies before they are applied to mainland China.

Footnotes

*

D.Phil., University of Oxford; Assistant Professor of Law, The Chinese University of Hong Kong. This study was supported by an Early Career Scheme grant from the Research Grants Council, University Grants Committee, Hong Kong Special Administrative Region (ECS 459213). The author is grateful to Yau Him Francis FUNG and Hau Ying TSOI for their research assistance.

1. CLARKE, Donald C., “Puzzling Observations in Chinese Law: When is a Riddle just a Mistake?” in C. Stephen HSU, ed., Understanding China’s Legal System (New York: New York University Press, 2003), 93.

2. MO, Jihong, “The Constitutional Law of the People’s Republic of China and Its Development” (2009) 23 Columbia Journal of Asian Law 137 at 182.

3. WANG, Zhenmin and TU, Kai, “Chinese Constitutional Dynamics: A Decennial Review” in Albert H.Y. CHEN, ed., Constitutionalism in Asia in the Early Twenty-First Century (Cambridge: Cambridge University Press, 2014), 118 at 122.

4. ZHANG, Qianfan, “From Popular Sovereignty to Human Rights: On the Paradigm Transformation of Chinese Constitutional Jurisprudence” (2009) 1:1Asia Law Quarterly 1 at 12.

5. TONG, Zhiwei, “A Comment on the Rise and Fall of the Supreme People’s Court’s Reply to Qi Yuling’s Case” (2010) 43:3Suffolk University Law Review 669 at 677.

6. WANG, Xuanwei, “What Can the People’s Procuratorate Do in the Chinese Constitutional Review Mechanism?” (2012) 4:1China Law Review 83 at 88.

7. See CHEN, Albert H.Y., “The Court of Final Appeal’s Ruling in the ‘Illegal Migrant’ Children Case: Congressional Supremacy and Judicial Review” in Johannes M.M. CHAN, Hualing FU, and Yash GHAI, eds., Hong Kong’s Constitutional Debate: Conflict over Interpretation (Hong Kong: Hong Kong University Press, 2001), 73 at 77.

8. ZHANG, Qianfan, “A Constitution without Constitutionalism? The Paths of Constitutional Development in China” (2010) 8:4International Journal of Constitutional Law 950 at 956.

9. WANG, Zhenmin, “Constitutional Politics: The Road to Permanent Peace and Stability on How the Communist Party of China Can Escape from the Historical Cycle” (2013) 6:1Tsinghua China Law Review 1 at 15.

10. ZHU, Guobin, “Constitutional Review in China: An Unaccomplished Project or a Mirage?” (2010) 43:3Suffolk University Law Review 625; BACKER, Larry Cata, “A Constitutional Court for China Within the Chinese Communist Party: Scientific Development and a Reconsideration of the Institutional Role of the CCP” (2010) 43:3Suffolk University Law Review 593.

11. HAND, Keith J., “Understanding China’s System for Addressing Legislative Conflicts: Capacity Challenges and the Search for Legislative Harmony” (2013) 26 Columbia Journal of Asian Law 139 at 200.

12. BAI, Sheng, Jibenfa Jieshi Wenti Tanjiu: Cong Falixue Jiaodu Pouxi (基本法解释问题探究：从法理学角度剖) [Research into Interpretive Problems of the Basic Law: An Analysis from the Perspective of Legal Theory] (Hong Kong: Commercial Press, 2015) at 127.

13. RAO, Geping and WANG, Zhenmin, “Hong Kong’s ‘One Country, Two Systems’ Experience Under the Basic Law: Two Perspectives from Chinese Legal Scholars” (2007) 16 Journal of Contemporary China 341.

14. ZHU, Guobin, Xiangjiang Fazheng Zongheng Xianggang Jibenfaxue Xulun (香江法政纵横-香港基本法学绪论) [Jurisprudence and Politics in the Fragrant Harbour: Making Waves with the Hong Kong Basic Law] (Beijing: Law Press China, 2010) at 87.

15. WONG, James K.T., Xianggang Jibenfa de Falv Jieshi Yanjiu (香港基本法的法律解釋研究) [Interpretation of the Hong Kong Basic Law] (Hong Kong: Joint Publishing, 2014) at 87.

16. CHEN, Albert H.Y., “The NPCSC’s Interpretation in Spring 2005” (2005) 35:2Hong Kong Law Journal 255 at 263.

17. CHEN, Albert H.Y., “The Relationship Between the Central Government and the SAR” in Peter WESLEY-SMITH and Albert H.Y. CHEN, eds., The Basic Law and Hong Kong’s Future (Hong Kong: Butterworths, 1988), 107.

18. GHAI, Yash, Hong Kong’s New Constitutional Order: The Resumption of Chinese Sovereignty and the Basic Law, 2nd ed. (Hong Kong: Hong Kong University Press, 1999) [Ghai, Hong Kong’s New Order].

19. GITTINGS, Danny, Introduction to the Hong Kong Basic Law (Hong Kong: Hong Kong University Press, 2013) at 89.

20. See GEWIRTZ, Paul, “Approaches to Constitutional Interpretation: Comparative Constitutionalism and Chinese Characteristics” (2001) 31:1Hong Kong Law Journal 200.

21. GHAI, Yash, “The Imperatives of Autonomy: Contradictions of the Basic Law” in Johannes M.M. CHAN and Lison HARRIS, eds., Hong Kong’s Constitutional Debates (Hong Kong: Hong Kong Law Journal Limited, 2005), 29 at 41.

22. LIM, C.L. and CHAN, Johannes M.M., “Autonomy and Central-local Relations” in Johannes M.M. CHAN and C.L. LIM, eds., Law of the Hong Kong Constitution, 2nd ed. (Hong Kong: Sweet & Maxwell, 2015), 41 at 76.

23. FU, Hualing, “Supremacy of a Different Kind: The Constitution, the NPC, and the Hong Kong SAR” in Chan, Fu, and Ghai, eds., supra note 7, 97 at 111.

24. HUI, Dennis L.H., “The Stalemate in Political Reform and the Rise of Contentious Politics in Hong Kong” in Joseph Y.S. CHENG, ed., New Trends of Political Participation in Hong Kong (Hong Kong: City University of Hong Kong Press, 2014), 211 at 240.

25. See DAVIS, Michael C., “The Basic Law, Universal Suffrage and the Rule of Law in Hong Kong” (2015) 38 Hastings International and Comparative Law Review 275.

26. See MCADAMS, Richard H., “Beyond the Prisoners’ Dilemma: Coordination, Game Theory, and Law” (2009) 82 Southern California Law Review 209.

27. See ELSTER, Jon, Explaining Social Behavior: More Nuts and Bolts for the Social Sciences (New York: Cambridge University Press, 2007).

28. See MCADAMS, Richard H., The Expressive Powers of Law: Theories and Limits (Cambridge: Harvard University Press, 2015).

29. SCHELLING, Thomas C., The Strategy of Conflict (Cambridge: Harvard University Press, 1980) at 70.

30. See HADFIELD, Gillian K. and WEINGAST, Barry R., “Constitutions as Coordinating Devices” in Sebastian GALIANI and Itai SENED, eds., Institutions, Property Rights, and Economic Growth: The Legacy of Douglass North (New York: Cambridge University Press, 2014), 121.

31. LU, Ping, Luping Koushu Xianggang Huigui (魯平口述香港回歸) [Lu Ping’s Oral Account on the Return of Hong Kong] (Hong Kong: Joint Publishing, 2009).

32. WESLEY-SMITH, Peter, “Comment: The SAR Constitution: Law or Politics?” (1997) 27:2Hong Kong Law Journal 125 at 125-126.

33. Basic Law of the Hong Kong Special Administrative Region of the People’s Republic of China (Adopted at the Third Session of the Seventh National People’s Congress on 4 April 1990), art. 2 [Basic Law].

34. Ibid., art. 5.

35. Ibid., art. 22.

36. ZHANG, Youyu, “The Reasons for and Basic Principles in Formulating the Hong Kong Special Administrative Region Basic Law and Its Essential Contents and Mode of Expression” (1988) 2 Journal of Chinese Law 5 at 7.

37. Basic Law, supra note 33, arts. 45(2) and 68(2).

38. GHAI, Yash, “Hong Kong’s Autonomy: Dialects of Powers and Institutions” in Yash GHAI and Sophia WOODMAN, eds., Practicing Self-Government: A Comparative Analysis of Autonomous Regions (Cambridge: Cambridge University Press, 2013), 315 at 342 [Ghai, “Hong Kong’s Autonomy”].

39. “Xiaozu Tongyi Tequ Duiwaijianxi an Lianheshengming Xiejin Jibenfa: You Weiyuan Jianyi Renda she Weiyuanhui Jieshi ji Xiugai (小組同意特區對外關係按聯合聲明寫進基本法：有委員建議人大設委員會解釋及修改) [Small Group Agrees that the External Affairs of the Special Administrative Region Should Be Codified into the Basic Law According to the Joint Declaration: Some Members Suggest that the National People’s Congress Establish a Committee Responsible for Interpretation and Amendment]” Ming Pao (明報) (2 June 1986) [translated by author].

40. Gittings, supra note 19 at 87.

41. “Xie Fengxuan Jianyi Renda she Xianggang Weiyuanhui ju Falv Zuihou Jieshiquan (薛鳳旋建議人大設香港委員會具法律最後解釋權) [Victor Sit Recommends the National People’s Congress to Establish a Hong Kong Committee Vested with the Final Power of Interpretation]” Ming Pao (明報) (17 January 1986) [translated by author].

42. Special Group on the Relationship between the Central Government and the Special Administrative Region, Zhongyang yu Tebiexingzhengqu de Guanxi Zhuanzexiaozu Chububaogao (中央与特别行政区的关係专责小组初步报告) [Preliminary Report of the Special Group on the Relationship Between the Central Government and the Special Administrative Region] (2 May 1986) [translated by author].

43. Basic Law Drafting Committee, Zhonghuarenmingongheguo Xianggangtebiexingzhengqu Jibenfa Qicaoweiyuanhui Diliuqi Chuantihuiyi Weiyuanmen Dui Jibenfa Disi, Wu, Liu, Shizhang he Tiaowen Caogao Huipian de Yijian (中华人民共和国香港特别行政区基本法起草委员会第六次全体会议委员们对基本法第四、五、六、十章和条文草稿汇编的意见) [Opinions of the Members of the Sixth Plenary Meeting of the Drafting Committee of the Basic Law of the Hong Kong Special Administrative Region of the People’s Republic of China on Chapters 4, 5, 6, 10, and the Collection of the Draft Provisions of the Basic Law] (December 1987) [translated by author].

44. Basic Law Drafting Committee, Zhonghuarenmingongheguo Xianggangtebiexiangzhengqu Jibenfa (Caoan) Caogao (中华人民共和国香港特别行政区基本法(草案)草稿) [Basic Law of the Hong Kong Special Administrative Region of the People’s Republic of China (Bill) Draft] (April 1988) [translated by author].

45. “Huang Lisong Deng Guozheng Lun Yiguoliangzhi [Rayson Huang and Robert Tang on One Country, Two Systems]” Ming Pao (明報) (30 May 1988) [translated by author].

46. Ghai, Hong Kong’s New Order, supra note 18 at 197.

47. Secretariat of the Basic Law Drafting Committee, Xianggang Gejie Renshi Duo Xianggangtebiexingzhengqu Jibenfa (Caoan) Zhengqiu Yijiangao De Yijian Huiji (香港各界人士对香港特别行政区基本法(草案)徵求意见稿的意见汇集) [Collection of Views of Hong Kong People from Various Backgrounds on the Draft Basic Law (For the Solicitation of Opinions)] (August 1988); “Jibenfaweiyuanhui (基本法委員會) [The Basic Law Committee]” Ming Pao (明報) (24 June 1988) [translated by author].

48. “Wu Kangmin Zai Tantao Zhonggang Guanxi Jiangzuo Zhong Cheng Jibenfaweiyuanhui Xu Youquan Chengyuan Ying Gangren Zhan Duoshu (吳康民在探討中港關係講座中稱，基本法委員會除有權，成員應港人佔多數) [Ng Hong-mun in a Lecture on Sino-Hong Kong Relations Said that the Basic Law Committee Should Be Empowered and Members Should Include a Majority of Hong Kong Residents]” Ming Pao (明報) (11 July 1988) [translated by author].

49. Secretariat of the Basic Law Drafting Committee, Neidi Caowei Fanggangxiaozu Jiu Jibenfa Caoan Zhengqiu Yijiangao Yixie Wenti de Huiying Jilu (内地草委访港小组就基本法草案徵求意见稿一些问题的回应辑录) [A Compilation of the Views of Visiting M0ainland Drafters on Some Questions Concerning the Draft Basic Law for Solicitation of Opinions] (6-17 June 1988) [translated by author].

50. See Basic Law Consultative Committee, Zhonghuarenmingongheguo Xianggangtebiexingzhengqu Jibenfa (Caoan) Zixun Baogao – Tiaowen Zongbaogao (中华人民共和国香港特别行政区基本法（草案）谘询报告：条文总报告) [Volume Three of the Consultative Report of the Basic Law Consultative Committee on the Basic Law of the Hong Kong Special Administrative Region of the People’s Republic of China (Draft) – General Report on Provisions] (November 1989) [translated by author].

51. Basic Law, supra note 33, art. 17(3).

52. Ibid., art. 18(3).

53. Ibid., art. 158(4).

54. Ibid., art. 159(3).

55. Decision of the National People’s Congress approving the Proposal by the Drafting Committee for the Basic Law of the Hong Kong Special Administrative Region on the Establishment of the Committee for the Basic Law of the Hong Kong Special Administrative Region under the Standing Committee of the National People’s Congress (Adopted at the Third Session of the Seventh National People’s Congress on 4 April 1990).

56. Ghai, “Hong Kong’s Autonomy”, supra note 38 at 342.

57. Gittings, supra note 19 at 89.

58. WANG, Zhenmin, “From the Judicial Committee of the British Privy Council to the Standing Committee of the Chinese National People’s Congress – An Evaluation of the Legal Interpretive System After the Handover” (2007) 37:1Hong Kong Law Journal 607 at 607 [Wang, “From the Privy Council”].

59. GAYLORD, Mark, “Cross-border Crime and Legal Jurisdiction in Post-colonial Hong Kong” (1999) 31:1Crime, Law and Social Change 31 at 34.

60. See LUNEY, Percy R., “Traditions and Foreign Influences: Systems of Law in China and Japan” (1989) 52:2Law and Contemporary Problems 129.

61. HAUSMANINGER, Herbert, “From the Soviet Committee of Constitutional Supervision to the Russian Constitutional Court” (1992) 25:2Cornell International Law Journal 305 at 305.

62. TROCHEV, Alexei, Judging Russia: Constitutional Court in Russian Politics 1990-2006 (New York: Cambridge University Press, 2008) at 59.

63. LO, Sonny Shiu Hing, “The Emergence of Constitutional Conventions in the Hong Kong Special Administrative Region” (2005) 35:1Hong Kong Law Journal 103 at 109.

64. “Jiweihui Gangfang Mingdan Liangrinei Gongbu (基委會港方名單兩日內公佈) [The Hong Kong Membership List of the Basic Law Committee Will Be Published in Two Days)” Ming Pao (明報) (25 June 1997) [translated by author].

65. MCADAMS, Richard A., “A Focal Point Theory of Expressive Law” (2000) 86 Virginia Law Review 1649 at 1668.

66. The BLC’s Rules of Procedure are not accessible to the public; the precise contents of the Rules can only be discerned through the published speeches and writings of individual BLC members.

67. CHEN, Albert H.Y., Yiguoliangzhi Xia Xianggang de Fazhi Tansuo (一國兩制下香港的法治探索一國兩制下香港的法治探索) [Hong Kong’s Explorations in the Rule of Law Under One Country Two Systems] (Hong Kong: Chung Hwa Bookstore, 2010) at 158.

68. Ng Ka Ling & Others v. Director of Immigration (1999) 2 HKCFAR 4.

69. IP, Eric C., “Constitutional Competition Between the Chinese National People’s Congress Standing Committee and the Hong Kong Court of Final Appeal” (2013) 39:4Law & Social Inquiry 824 at 832.

70. Cited in Wong, supra note 15 at 98.

71. The Interpretation by the Standing Committee of the National People’s Congress of Articles 22(4) and 24(2)(3) of the Basic Law of the Hong Kong Special Administrative Region of the People’s Republic of China (Adopted at the Tenth Session of the Standing Committee of the Ninth National People’s Congress on 26 June 1999).

72. CHEN, Albert H.Y., “The Constitutional Controversy of Spring 2004” (2004) 34:2Hong Kong Law Journal 215 at 217-218.

73. GHAI, Yash, “The Intersection of Chinese Law and the Common Law in the Hong Kong Special Administrative Region: Question of Technique or Politics?” (2007) 37:1Hong Kong Law Journal 363 at 399.

74. Interpretation of Paragraph 2, Article 53 of the Basic Law of the Hong Kong Special Administrative Region of the People’s Republic of China by the Standing Committee of the National People’s Congress (Adopted at the Fifteenth Session of the Standing Committee of the Tenth National People’s Congress on 27 April 2005).

75. CHEN, Albert H.Y., “The NPCSC’s Interpretation in Spring 2005” (2005) 35:2Hong Kong Law Journal 255 at 263.

76. WANG, Zhenmin, Zhongyang yu Tebiexingzhengqu Guanxi: Yi Zhong Fazhi Jiegou de Jiexi (中央與特別行政區關係：一種法治結構的解析) [Relationship Between the Central Authorities and the Special Administrative Region: An Analysis of Legal Structures] (Hong Kong: Joint Publishing, 2014) at 350-351.

77. Wang, “From the Privy Council”, supra note 59 at 612.

78. “Chen Hongyi Chang Jiwei Fangxiao Fating (陳弘毅倡基委仿傚法庭) [Albert Chen Proposes that the Basic Law Committee Should Imitate the Courts]” Ming Pao (明報) (6 December 1999) [translated by author].

79. “Qiao: Shifa Quebao Ruqi Xuanteshou (喬：釋法確保如期選特首) [Qiao: Interpretation of the Basic Law Prevents the Delay of the Chief Executive Election]” Ming Pao (明報) (22 April 2005) [translated by author].

80. “Youzuo Jieshi Jibenfa Jiaqiang Zhongyang Goutong Jiweihui Chang Cheng Changshejigou (有助解釋基本法，加強中央溝通，基委會倡成常設機構) [Helpful to Basic Law Interpretation and Empowering to Hong Kong-Central Government Dialogue: The Committee for the Basic Law Should Become a Permanent Body]” Tin Tin Daily (9 March 1999) [translated by author].

81. LEUNG, Priscilla M.F., The Hong Kong Basic Law: Hybrid of Common Law and Chinese Law (Hong Kong: LexisNexis, 2007) at 86.

82. Legally trained members of the reshuffled Second BLC include Albert Chen (Hong Kong), Elsie Leung (Hong Kong), Anthony Neoh (Hong Kong), Rao Geping (Mainland China), Maria Tam (Hong Kong), Wang Zhenmin (Mainland China), and Zhang Xiaoming (Mainland China).

83. “Zhongyang Zhongshi, Lieru Zhengbuji Bumen, Jiweihui Shengge, Qiao Xiaoyang Zuozhen (中央重視，列入正部級部門，基委會升格，喬曉陽坐陣) [Attention from the Central Authorities: The Basic Law to be Classified as a Ministerial Department, Upgraded and Led by Qiao Xiaoyang]” Ming Pao (明報) (16 February 2006) [translated by author].

84. Nai-keung, LAU, “Behind the Unanimous Vote for the Interpretation of the Basic Law” Hong Kong Economic Journal (26 August 2011).

85. YANG, Xiaonan, “Two Interpreters of the Basic Law: The Court of Final Appeal and the Standing Committee of the National People’s Congress” in Simon N.M. YOUNG and Yash GHAI, eds., Hong Kong’s Court of Final Appeal: The Development of the Law in China’s Hong Kong (New York: Cambridge University Press, 2014), 69 at 89.

86. Chen, Albert H.Y., “The Constitutional Controversy of Spring 2004” (2004) 34:2Hong Kong Law Journal 215 at 221.

87. “Dibu Rendai Kongque (遞補人大空缺) [Replacement of Congress Deputy’s Vacancy]” Ming Pao (明報) (4 October 2006) [translated by author].

88. Lim and Chan, supra note 22 at 76.

89. Cited in CHEUNG, Anne S.Y. and CHEN, Albert H.Y., “The Search for the Rule of Law in the Hong Kong Special Administrative Region, 1997-2003” in Yiu-chung WONG, ed., “One Country, Two Systems” in Crisis: Hong Kong’s Transformation since the Handover (Lanham: Lexington Books, 2004), 61 at 65.

90. Cited in LO, Shiu Hing Sonny, The Dynamics of Beijing-Hong Kong Relations: A Model for Taiwan? (Hong Kong: Hong Kong University Press, 2008) at 90-95.

91. “Wu Weiyong Li Guoneng Xiaoxiezi Cheng Yingxiong (鄔維庸：李國能小孩子逞英雄) [Raymond Wu: Andrew Li Is a Toddler who Pretends to Be a Hero]” Ming Pao (明報) (8 February 1999) [translated by author].

92. “Chief Secretary Carrie Lam Defends Hong Kong’s Judicial Independence” South China Morning Post (8 October 2012).

93. “Law Groups Fight Back After Elsie Leung Attack” South China Morning Post (11 October 2012).

94. Cited in JONES, Carol, “Lost in China? Mainlandisation and Resistance in Post-1997 Hong Kong” (2014) 5 Taiwan in Comparative Perspective 21 at 40.

95. CHAN, Kahon, “Universal Suffrage a ‘Historical Duty’” China Daily (14 April 2014).

96. CHEUNG, Alvin Y.H., “Road to Nowhere: Hong Kong’s Democratization and China’s Obligations Under Public International Law” (2014) 40:2Brooklyn Journal of International Law 465 at 495.

97. Nai-keung LAU, “NPCSC Resolute in Deciding CE decision” China Daily (26 August 2014).

98. See Davis, supra note 25.

99. Explanations on the Draft Decision of the Standing Committee of the National People’s Congress on Issues Relating to the Selection of the Chief Executive of the Hong Kong Special Administrative Region by Universal Suffrage and on the Method for Forming the Legislative Council of the Hong Kong Special Administrative Region in the Year 2016 (At the Tenth Session of the Standing Committee of the Twelfth National People’s Congress on 27 August 2014).

100. “Li Jiacheng Li Jiajie Yu Zhengzhi Wang Qianzou Chentai Ning Yuandidabu Zhichi Zhanzhong bu Canjia (李嘉誠李家傑籲政制往前走；陳太寧原地踏步，支持佔中不參加) [Li Ka-shing and Peter Lee Appeal to Progress in Political Reform, Anson Chan Prefers the Status Quo, Supports Occupy Central but Will not Participate in It]” Ming Pao (明報) (2 September 2014) [translated by author].

101. See HUI, Victoria Tin-bor, “Hong Kong’s Umbrella Movement: The Protests and Beyond” (2015) 26:2Journal of Democracy 111.

102. “Zhang Junsheng: Zhanling Tanbushang Yansegeming (張浚生：佔領談不上顏色革命) [Zhang Junsheng: Occupy Cannot Be regarded as a Colour Revolution]” Ming Pao (明報) (6 November 2014) [translated by author].

103. “Zhang Rongshun Cu Yiguoliangzhi ‘Zai Qimeng’ (張榮順促一國兩制「再啟蒙」) [Zhang Rongshun Urges “Re-Enlightenment” Under One Country, Two Systems]” Ming Pao (明報) (15 December 2014) [translated by author].

104. Hand, supra note 11 at 200.

105. IP, Eric C., Law and Justice in Hong Kong (Hong Kong: Sweet & Maxwell, 2014) at 49-52.

106. ORTMANN, Stephan, “The Umbrella Movement and Hong Kong’s Protracted Democratization Process” (2015) 46:1Asian Affairs 32; see also Ip, Eric C., “The High Court of the People: Popular Constitutionalism in Hong Kong under Chinese Sovereignty” (2014) 36:3Law & Policy 314.

107. GHAI, Yash, “Autonomy and the Court of Final Appeal: The Constitutional Framework” in Young and Ghai, eds., supra note 85, 33 at 50.

108. Yang, supra note 84 at 86-87.

109. Hand, supra note 11 at 250.

110. See TANNER, Murray Scot, The Politics of Lawmaking in Post-Mao China (New York: Oxford University Press, 1999).

111. O’BRIEN, Kevin J., Reform Without Liberalization: China’s National People’s Congress and the Politics of Institutional Change (New York: Cambridge University Press, 1990) at 62.

112. KELLOGG, Thomas E., “Constitutionalism with Chinese Characteristics? Constitutional Development and Civil Litigation in China” (2009) 7:2International Journal of Constitutional Law 215 at 223.

113. See LI, Shuzhong, “Lun Xianfa Jiandu de Sifahua (论宪法监督的司法化) [On the Judicialization of Constitutional Supervision]” (2003) 2 Zhenfaluntan (政法论坛) [Politics and Law Forum] 29 [translated by author]; CHEN, Yunsheng, Xianfa Jiandu Sifahua (宪法监督司法化) [The Judicialization of Constitutional Supervision] (Beijing: Peking University Press, 2004) [translated by author]; CAI, Dingjian, “Constitutional Supervision and Interpretation in the People’s Republic of China” (1995) 9 Journal of Chinese Law 219.

114. CALDWELL, Ernest, “Horizontal Rights and Chinese Constitutionalism: Judicialization Through Labor Disputes” 88:1Chicago-Kent Law Review 63 at 66.

115. Ghai, “Hong Kong’s Autonomy”, supra note 38 at 342.

116. See IP, Eric C., “The Supreme People’s Court and the Political Economy of Judicial Empowerment in Contemporary China” (2011) 24 Columbia Journal of Asian Law 367.

117. Hand, supra note 11 at 172.

118. CAI, Dingjian, “Social Transformation and the Development of Constitutionalism” in Dingjian CAI and Chenguang WANG, eds., China’s Journey Toward the Rule of Law: Legal Reform, 1978-2008 (Leiden: BRILL, 2010), 51.

119. Hand, supra note 11 at 174.

120. Jintao HU, “Use the ‘Three Supremacies’ as the Guidance Thought of the Judicial Practice” (cited in XU, Zhengbo, The Three Supremacies’: Finding a Chinese Road to Judicial Reform (Beijing: Law Press China, 2010) at 205).

121. ZHOU, Qiang, “Zhou Qiang: Jiji Tuijin Shehuizhuyi Fazhi Guojia Jianshe (周强: 积极推进社会主义法治国家建设) [Zhou Qiang: Proactively Promote the Construction of a Socialist Rule of Law State: A Study of Comrade Xi Jinping’s Important Discourse on Building of the Rule of Law] Renmin Ribao (人民日报) [People’s Daily] (12 August 2013) [translated by author].

* D.Phil., University of Oxford; Assistant Professor of Law, The Chinese University of Hong Kong. This study was supported by an Early Career Scheme grant from the Research Grants Council, University Grants Committee, Hong Kong Special Administrative Region (ECS 459213). The author is grateful to Yau Him Francis FUNG and Hau Ying TSOI for their research assistance.

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Table 1First Hong Kong Basic Law Committee (1997-2003)

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Table 2Second Hong Kong Basic Law Committee (2003-2006)

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Table 3Third Hong Kong Basic Law Committee (2008-2013)

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Table 4Fourth Hong Kong Basic Law Committee (2013-2018)