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Project Details
Funding Scheme : Early Career Scheme
Project Number : 459213
Project Title(English) : Mitigating Cross-Border Constitutional Tensions: An Economic Analysis of the Design and Performance of the Committee for the Basic Law of Hong Kong 
Project Title(Chinese) : 憲制磨擦與磨合:香港基本法委員會研究 
Principal Investigator(English) : Dr Ip, Chi Yeung Eric 
Principal Investigator(Chinese) :  
Department : Department of Law
Institution : The University of Hong Kong
E-mail Address : ericcip@hku.hk 
Tel : 39172961 
Co - Investigator(s) :
Panel : Humanities, Social Sciences
Subject Area : Social Sciences
Exercise Year : 2013 / 14
Fund Approved : 233,000
Project Status : Completed
Completion Date : 31-12-2015
Project Objectives :
Make sense of the process of the resolution of constitutional problems between Hong Kong and Mainland China since the transfer of sovereignty in 1997 as it actually works.
Identify the factors that underpinned the establishment of the CBL.
Understand the institutional constraints and incentives that shaped the CBL’s performance.
Critically analyze the role of the CBL in (1) the NPCSC’s interpretation of the Basic Law; (2) the implementation of the Basic Law in Hong Kong; and (3) the bridging of the differences between the Hong Kong public and Mainland Chinese authorities over the meaning of Basic Law provisions.
Recommend strategies to enhance the role of the CBL in mitigating cross-border constitutional complications.
Abstract as per original application
(English/Chinese):
This Project aims to analyze the mitigation of constitutional problems between Hong Kong and Mainland China since July 1, 1997, with special emphasis on the role of the Committee for the Basic Law of the Hong Kong Special Administrative Region under the Standing Committee of the National People’s Congress (NPCSC-CBL) – the constitutionally-sanctioned body to perform just this function. Enacted in accordance with the Sino-British Joint Declaration of 1984, the Basic Law unprecedentedly provided for the absorption of Hong Kong – a long-time British dependency, international financial center and common law jurisdiction, into the People’s Republic of China – the world’s most populous country and last major Communist Party-state. Although implementing the Mainland’s preferences for sovereign unity, the provisions of the Basic Law safeguarding civil liberties and promising universal suffrage elections have inspired an alternative concept of constitutional order supported by the senior courts, opposition parties, and large numbers of citizens. In light of these developments, this Project devotes its attention to the CBL, the official constitutional connective issues between the two jurisdictions. The CBL is an important yet operationally secretive body, whose opinion the NPCSC is obligated to consult whenever it wishes to invalidate Hong Kong legislation, extend Mainland laws to Hong Kong, and interpret, and even amend the Basic Law. Surprisingly, no article or book has ever been dedicated to the study of the CBL in its own right, and in dispersed commentaries, scholars sharply disagreed on its importance: on the one hand, it has been accused for being a pawn of the regime; on the other hand, it has been recognized as being influential in publicly shaping the meaning of the Basic Law and injected common law knowledge into the NPCSC’s own decision-making. Addressing this gap of the literature, this Project seeks to uncover, empirically and inter-disciplinarily, the role of the CBL by bringing the insights from the economic analysis of law and positive political economy literatures to develop a stylized principal-agent theory to explain and predict the CBL’s trajectory, and then providing it with evidential support through research interviews and a comprehensive review of primary and secondary materials. This Project will yield important insights on how to minimize cross-border constitutional friction, and on the prospects of entrenching constitutionalism in China.
本計劃旨在分析自一九九七年七月一日起,香港與中國大陸之間的憲制問題的緩解,並著重研究全國人民代表大會常務委員會香港特別行政區基本法委員會在此所扮演的角色。根據一九八四年的中英聯合聲明所制定的基本法,史無前例地,促成了作為世上人口最多的國度和最後一個主要的共產黨國家的中華人民共和國,對長期身為英國海外領地、國際金融中心、普通法管轄區的香港,行使主權。基本法的條款,既落實中國對主權統一的主張,亦保障香港的公民權利和承諾推動普選;後者衍生了一種與中國理解不同的,但廣為高級法院、反對黨、大批市民所支持的憲制概念。基於上述發展,本計劃將聚焦於作為連結兩地憲制事務的官方組織的基本法委員會。基本法委員會是一個重要但神秘的機構;全國人大常委有義務在發回香港法例、延申全國性法律到香港、解釋或修改基本法前,諮詢其意見。然而,現有文獻卻意料之外地沒有集中討論此機構。學者們卻在散佈在其他文獻有關基本法委員會的討論,對其重要性產生嚴重的分歧。有指基本法委員會不過是政權的傀儡,同時也有意見認為,委員會對公眾了解基本法的意義上角色舉足輕重,並且為全國人大常委的決策過程注入了普通法的元素。有見及此,本計劃將嘗試從實證和跨學科研究的角度了解基本法委員會的角色,並以法律經濟學、實證政治經濟學的原理,建構相關的主理人/代理人理論、訪談和對主要和次要資料全面分析等方法為理論提供證據支持。本計劃有望為減少兩地憲制磨擦、在中國建設憲政,提供新視角。
Realisation of objectives: Objective 1: Constitutional problems between Hong Kong and Mainland China mainly revolve largely around electoral reform toward universal suffrage. Both sides to the democratization dilemma of Hong Kong share an overarching interest in avoiding the total breakdown of coordination, yet tensions persist over their clashing preferences for which particular outcome – more or less electoral competition – they ought to converge on. This project has demonstrated the shortcomings of the Basic Law as a coordination device and has examined the strengths and weaknesses of the three major focal point generators in the Basic Law framework: the Hong Kong courts, the Basic Law Committee (CBL), and the Standing Committee of the National People’s Congress (NPCSC). It posited that the unilateral and uncompromising injection of its preference for uncompetitive elections into Hong Kong’s constitutional law pivotally contributed to the waning of the NPCSC’s focal power; after all, no focal point can elicit acquiescence from those thoroughly hostile to its essence. Regarding the Umbrella Movement, this project highlighted the roles played by the above three bodies in achieving (or not) some convergence of expectations amongst the disputants. It has illustrated how the Umbrella Movement was the fallout of a coordination failure stemming from a hardening of strategies on both sides, and from a collapse of the focal power of the NPCSC and its Decisions. The surprisingly bloodless winding-up of the Umbrella Movement practically resulted from the intervention of the prestigious High Court not the CBL. The electoral reform process in Hong Kong is now a stalemate, which may not last indefinitely, however, given the erosion of the coordinating power of the Basic Law and of NPCSC Decisions as their psychological salience as focal points in constitutional conflicts diminishes with the growing propensity of both sides to act uncompromisingly. The saga of the Umbrella Movement indicates that Beijing will not offer any substantial concession toward electoral competition in Hong Kong, even in face of unprecedented popular mobilization. In the absence of any viable focal points, it is unlikely that the Chinese Party-state and Hong Kong community, the latter of which increasingly showing localist or even separatist tendencies, will be able to avoid converging on the worst of all outcomes in their coordination. All things being equal, chances of a constitutional breakthrough will remain low, and that the political stalemate will stick for the foreseeable future. Objective 2: This objective is largely met. During the drafting of the Basic Law, 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. China’s lack of a constitutional court moved Hong Kong intellectuals to seek out an independent institution that could fulfill such a role. 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 the establishment of a “Hong Kong Basic Law Committee” to participate in interpreting Basic Law provisions relating to the Chinese central government with finality. 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. By December 1987 a consensus appears to have emerged amongst the drafters that the NPCSC should be obliged to consult the CBL before rendering important decisions regarding the Basic Law. According to drafter Rayson Huang, the Committee was meant to countervail, in case of conflict, the Basic Law’s overarching emphasis on “One China”. The perception became ascendant in Hong Kong that the CBL was a means to protect the region’s autonomy with a new jurisprudence that would join up the divergent common law and socialist traditions of both sides. Enthusiasm in Hong Kong for the CBL 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 CBL. After the 1989 Tiananmen Square Incident, there emerged suggestions for the CBL to function as a European-style constitutional court consisting of an equal number of mainland Chinese and Hong Kong judges. The final text of the Basic Law vests the CBL with four formal competences to be consulted by the NPCSC in four significant domains of possible conflict between Hong Kong and Beijing. Objective 3: This objective is largely met. This project demonstrated that the CBL epitomizes a prototypic form of constitutional supervision in China. But it turned out that China’s top leadership has taken the narrowest interpretation of the legal provisions on the CBL, seeing the Committee as nothing more than an ordinary non-permanent work committee. And yet such narrow interpretation of the CBL’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 CBL 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. Besides, many CBL 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. 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. Objective 4: This objective is largely met. The role of the CBL in various Interpretations and during the Umbrella Movement has been documented by the research outputs of this project. It was suggested that there was no room for the emergence of any custom tilting the NPCSC towards endorsing every recommendation made by the CBL. Objective 5: This objective is moderately met. The core insight of this project is that the only way for the CBL to play an enhanced role in mitigating cross-border tensions is for it to become a salient focal point for coordination. Whilst a minimalist role is not indefensible as a matter of black-letter law, the marginal position of the CBL in mitigating mainland China-Hong Kong constitutional tensions in many ways represented a lost opportunity for experimenting with constitutional supervision: the CBL 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 CBL 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, “One Country, Two Systems” has long been utilized by Beijing as a field laboratory to test novel ideas and policies before they are applied to mainland China. The conclusions of this project are thus pessimistic.
Summary of objectives addressed:
Objectives Addressed Percentage achieved
1.Make sense of the process of the resolution of constitutional problems between Hong Kong and Mainland China since the transfer of sovereignty in 1997 as it actually works.Yes80%
2.Identify the factors that underpinned the establishment of the CBL.Yes90%
3.Understand the institutional constraints and incentives that shaped the CBL’s performance.Yes90%
4.Critically analyze the role of the CBL in (1) the NPCSC’s interpretation of the Basic Law; (2) the implementation of the Basic Law in Hong Kong; and (3) the bridging of the differences between the Hong Kong public and Mainland Chinese authorities over the meaning of Basic Law provisions.Yes80%
5.Recommend strategies to enhance the role of the CBL in mitigating cross-border constitutional complications.Yes60%
Research Outcome
Major findings and research outcome: The protracted constitutional conflicts between the Chinese state and Hong Kong society over the pace and form of democratization have become a source of political instability. This project analyzed these dynamics by analyzing the two sides as locked in a coordination dilemma: both have important common interests to coordinate with each other, but both rank in divergent ways their preferences for and against introducing competitive electoral arrangements into Hong Kong. It was shown how the unwillingness of either side to compromise has caused the gradual breakdown of coordination as focal points like the Basic Law have eroded, culminating in the Umbrella Revolution of 2014, the largest and longest-lasting popular movement in Hong Kong history. The bloodless ending of the Movement is chronicled, along with the persistence of political stalemate in this highly anomalous polity, known throughout the world for its combination of genuine civil liberties with authoritarian rule. 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 decisively 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 specialised body, even one whose powers are heavily circumscribed and whose membership is tightly controlled.
Potential for further development of the research
and the proposed course of action:
This project uncovered the potential of using the law and coordination perspective to study Hong Kong constitutional dilemmas and the roles that the CBL and the courts can play in promoting conflicting parties to converge on mutually beneficial outcomes. The PI will further develop this approach in a number of follow-up articles.
Layman's Summary of
Completion Report:
Generally speaking, this project is about the constitutional disputes between members of Hong Kong society and the Chinese government after 1997. Although both sides are keen on preserving Hong Kong's stability and prosperity, each of them has a different view on the pace of electoral reform, among others. In particular, this project focused on the Committee for the Basic Law under the Standing Committee of the National People's Congress (CBL), which uniquely consists of an equal number of Hong Kong and mainland members, and which should be consulted every time an important constitutional decision has to be made. It discovered that the CBL could have played a useful role in coordinating constitutional disputes by generating salient focal points for disputing sides. And yet Beijing has taken a narrow reading of the CBL's power, subsuming it as part of its political decisionmaking process, giving it no special prominence in the resolution of constitutional dilemmas. The CBL's lack of consequential power is therefore a lost opportunity in the One Country Two Systems experiment. This project suggests that as both sides hardened their positions in the aftermath of the polarizing Umbrella Movement, the prospect of successful coordination under focal points like the Basic Law, the Standing Committee, and the CBL is dim.
Research Output
Peer-reviewed journal publication(s)
arising directly from this research project :
(* denotes the corresponding author)
Year of
Publication
Author(s) Title and Journal/Book Accessible from Institution Repository
2016 Eric C. Ip*  "Constitutional Conflict in Hong Kong Under Chinese Sovereignty," 8 Hague Journal on the Rule of Law 75 (2016).  No 
2015 Eric C. Ip*  "Prototype Constitutional Supervision in China: The Lessons of the Hong Kong Basic Law Committee," 10 Asian Journal of Comparative Law 323 (2015).  No 
2016 Eric C. Ip*  Law and Justice in Hong Kong (2nd edition, Sweet & Maxwell, 2016).  No 
Recognized international conference(s)
in which paper(s) related to this research
project was/were delivered :
Other impact
(e.g. award of patents or prizes,
collaboration with other research institutions,
technology transfer, etc.):
There is no other impact to report.
Realisation of the education plan:

  SCREEN ID: SCRRM00542