The BLDC and the BLCC: Organisation and Operation
The NPC ratified the SBJD and adopted the decision to establish the BLDC in its session of April 1985. Its Standing Committee (SCNPC) was entrusted with the formation of the BLDC.12 The list of members the SCNPC adopted and promulgated was one of a total of 59 members composing of 36 members from Mainland China and 23 members from Hong Kong.13 The SCNPC's statement on the list of members indicated that the members from Mainland China (BLDC Mainland members) included 15 responsible persons from the various departments,14 10 personalities from the various sectors,15 and 11 persons from the legal sector;16 and that the members from Hong Kong (BLDC HK members), said to have been scouted by the CPC and the PRC's de facto mission in Hong Kong,17 included
11 The main sources that have been consulted in the writing of this chapter are as follows: source materials held at the HKU Libraries under the Basic Law Drafting History Online portal, https://sunzi.
lib.hku.hk/bldho/home.action; P Wesley-Smith and AHY Chen (eds), The Basic Law and Hong Kong’s Future (Butterworths, 1988); J Zhang, C Yeung, W Lo and L Chan, Unchanged for 50 Years? Contesting the Basic Law between China, Britain and Hong Kong (Wave Publishing, 1991) (in Chinese); Wen Wei Po (ed), The Birth of the Basic Law (Volume 1) (Hong Kong Wen Wei Publishing, 2018) (in Chinese); Albert HY Chen and Michael Ng, ‘The Making of the Constitutional Order of the Hong Kong SAR: The Role of Sino-British Diplomacy (1982-90)' in Kevin YL Tan and Michael Ng (eds), Constitutional Foundings in Northeast Asia (Hart Publishing, 2022) 41-71; G Cheung, Secrets from the British Archives: Hong Kong and Its Post-Colonial Future (City University of Hong Kong Press, 2022) (in Chinese).12 See the Decision of the National People's Congress to Establish the Drafting Committee of the Basic Law of the Hong Kong Special Administrative Region of the People's Republic of China (Adopted at the Third Session of the Sixth National People's Congress on 10 April 1985).
The Decision further provided that the BLDC was to be accountable to the NPC and to the SCNPC when the NPC was not in session. The BLDC was to be composed of individuals and experts, including Hong Kong compatriots, from various sectors. The list of members of the BLDC was to be determined and promulgated by the SCNPC.13 Four of the 59 members were women, and one of the members was from a recognised ethnic minority of the PRC. Three members died before the completion of the drafting process and their vacancies were not filled.
14 The departments included the SCNPC, the Ministry of Foreign Affairs, the Ministry of Foreign Economy and Trade, the State Council Hong Kong and Macao Affairs Office (HKMAO), the State Council Overseas Chinese Office, and the People's Bank of China.
15 The personalities included representatives of the democratic parties that participated in the governance of the PRC under the leadership of the CPC in the national committee of the Chinese People's Political Consultative Conference (CPPCC).
16 Information on the BLDC members has come from biographies and feature articles in E Lau, ‘The Early History of the Drafting Process' in Wesley-Smith and Chen (n 11) 99-101, Wen Wei Po (n 11) and Zhang et al (n 11).
17 Namely, the New China News Agency (NCNA), then headed by Xu Jiatun (a former Party Secretary of the Jiangsu Province). The NCNA was also the base of the CPC's operating unit in Hong Kong, namely the Hong Kong Work Committee. This work committee works under the direction and supervision of a coordination panel on Hong Kong and Macao Work of the Central Committee of the CPC. eight personalities from the industrial, commerce, financial, real estate and shipping sectors,18 two members of the Hong Kong executive council and/or legislative council19 and one Hong Kong judge,20 as well as lawyers,21 trade unionists,22 educationalists,23 news publishers,24 religious leaders,25 a medical practitioner,26 and a leader of the indigenous inhabitants of the New Territories.27
The BLDC membership was dominated not only by Mainland members and Hong Kong members closely linked with the PRC,28 but also by lawyers, diplomats and other administrative officials closely associated with the PRC State authorities.
Of the 36 BLDC Mainland members, four were members of the Constitution Revision Commission that drafted the PRC Constitution,29 and three worked in the constitution revision process.30 As stated above, 11 of the 36 Mainland Chinese members were legal experts of the PRC's socialist state,31 but in fact the number would be 15 if those members who had had a legal education or involvement in law-making in the PRC were included.32 In contrast, only four BLDC HK members were legally qualified,33 and all of their formal legal education had been grounded in the common law tradition of England, which had an unwritten constitution. Further, four of the BLDC Mainland members were in the PRC18 The eight personalities included Sir YK Pao (a shipping magnate), TK Ann (an industrialist and a member of the standing committee of the national committee of the CPPCC), Li Ka-shing (a real estate developer), Henry YT Fok (a real estate developer and a member of the standing committee of the national conference of the CPPCC), Cha Chi-ming (an industrialist), Wong Po-yan (an industrialist), Sandford YT Yung (an accountant and the owner of a famous Hong Kong racehorse) and Graham CH Cheng (owner of a petroleum company). For an account of the CPC's work of winning the ‘hearts and minds' in territories, ie united front work in the CPC's lexicon, including that of the operation of the CPPCC as a cooptation body, see Christine Loh, Underground Front: The Chinese Communist Party in Hong Kong, 2nd edn (HKU Press, 2018) 27-41.
19ie Maria Tam (a barrister) and Wong Po-Yan (a businessman). Tam's role was thought to be ‘a bridge' between the Chinese and British sides; see Zhang et al (n 11) 39.
20 ie Justice of Appeal Simon Li.
21 ie Martin CM Lee QC and Dorothy YC Liu, a solicitor. It turned out that Lee and Liu took opposing positions most of the time during the drafting process, with Lee expressing many critical but minority views on Central-SAR relations, the political system and the legal and judicial systems.
22 ie Szeto Wah (from a teachers' union) and Tam Yiu-chung (from the Federation of Trade Unions).
23 ie Rayson Huang and Ma Lin (both former university vice-chancellors).
24 ie Fei Yimin (formerly of the Ta Kung Pao) and Louis Cha (of Ming Pao).
25 ie Peter Kwong (the Anglican bishop) and Shi Kok Kwong (the head of the Buddhist Association).
26 ie Dr Raymond Wu.
27 ie Lau Wong-fat (the Chairman of the Heung Yee Kuk).
28 Several of the BLDC HK members were CPPCC national committee members or had a pro-PRC profile (such as Cha Chi-ming and Tam Yiu-chung).
29 ie Ji Pengfei (the Chairman of the BLDC), Fei Xiaotong (a Vice-chairman of the BLDC), Fei Yimin (a Vice-chairman of the BLDC) and Rong Yiren (a member of the BLDC).
30 Namely, Hu Sheng (a vice-chairman of the BLDC), Xiao Weiyun, Xu Chongde, Wang Hanbin, and Zhang Youyu. For consideration of the constitution revision process leading to the adoption of the current PRC Constitution in 1982, see chapter four of this volume.
31 Namely, Duanmu Zheng, Lin Hengyuan, Qiu Shaoheng, Rui Mu, Shao Tianren, Wang Shuwen, Wang Tieya, Wu Jianfan, Xiao Weiyun, Xu Chongde and Zhang Youyu.
32 They included Lei Jieqiong, Mok Ying-kwai, Xiang Chunyi and Wang Hanbin.
33 ie Simon Li, Martin CM Lee, Dorothy YC Liu and Maria Tam. delegation during the Sino-British negotiations and were thus familiar with the drafting of the SBJD.[266]
The profiles of the BLDC HK members, described above, indicate an approach of selection and invitation that conformed with the twin aims of encompassing the elites of different sectors and taking care of the interests of various sides among the residents in Hong Kong,[267] coupled with an emphasis on co-opting the local business elite not only towards the PRC's interests but also for easing their concerns.[268]
The BLDC was led by a chairmen's meeting of one Chairman and eight Vice-chairmen.[269] It was serviced by a secretariat based in Beijing and headed by two members who were officials of the HKMAO and the NCNA respectively, and the staff of the secretariat included more legal experts from Mainland China.
Having adopted a timetable for drafting the Basic Law of the HKSAR for adoption in 1990 at the first plenary session, the BLDC's next task was the establishment, in Hong Kong, of an entity for consultations on the Basic Law.
This was entrusted by the BLDC to the BLDC HK members. In the five months that followed, the BLCC's constitution was drafted, its composition was agreed upon, its venue and funding secured,[270] and its membership of 180 Hong Kong residents were constituted through nomination by designated organisations from functional sectors, geographical regions and social strata,[271] invitation by BLDC HK member(s), and self-nomination. This process has recently been described scholastically as mobilisation of the Hong Kong community, under the leadership of the PRC State authorities, to get involved, with greater initiative and enthusiasm, in the consultations, promotion, and discussions on the Basic Law.[272] Others likened it to a congregation of special interest groups and aspirants in politics that exhibited episodes of bitterness and farce.[273]The BLCC was led by an executive committee of 19 persons, led by BLDC HK member TK Ann.42 The BLCC was serviced by a secretariat led by Mao Junnian, the NCNA official who co-headed the BLDC secretariat.43 While the BLCC's constitution stated that the BLCC ‘shall be separate from and not subordinate' to the BLDC and they ‘will contribute jointly to the drafting of the Basic Law', the significant presence of the BLDC in the BLCC needs to be noted, with both the benefit of frequent and fruitful exchanges between the two bodies and the disadvantage of coordination and potential leadership by the BLDC of the exercises to be undertaken in Hong Kong through the agency of the BLCC.
The BLDC adopted, at its second plenary session in April 1986,44 a draft structure of the Basic Law,45 and decided to establish five sub-groups with each dealing with the drafting of a particular part of the Basic Law as indicated by the draft structure.46 The sub-groups met throughout 1986 and they reported in December 1986 to the BLDC's third plenary session, which was presented with draft provisions of four chapters.
The BLDC's fourth plenary session was held in April 1987. The highlight of this plenary session was a meeting that Deng Xiaoping, the PRC's paramount leader and the principal mind behind the OCTS policy, held with the BLDC members. Deng's speech during this meeting of 16 April 1987, to be discussed in the next section, underlined the basic positions of the PRC leadership on points of contention that surfaced in the discussions of the sub-groups.
The BLDC held the fifth and the sixth plenary sessions in August and December 1987 respectively. Draft provisions of all the chapters were presented in August 1987. A coordinating group headed by two BLDC vice-chairmen, Sir YK Pao and Hu Sheng, was established to be responsible for the overall revision
in the election of the officers of the BLCC by its executive committee and the attempted defence of the botched election by Xu Jiatun that those officers were selected by ‘election through consultation'. The second episode illustrated the significant difference in understanding between the PRC and Hong Kong of election; see Loh (n 18) 163.
42 There were five other BLDC members in the BLCC's executive committee.
43 Mao's position was subsequently succeeded by Leung Chun-ying, a Hong Kong surveyor who became the Fourth Term Chief Executive of the HKSAR in 2012.
44 The BLDC's second plenary session was preceded by a visit to Hong Kong of an investigation team of the BLDC led by Lu Ping, a BLDC Mainland member and Secretary General of the HKMAO, between January and February 1986. It was reported that the team met more than 1,100 persons and over 100 meetings with different sectors of the Hong Kong community were held with the team; see Zhang et al (n 11) 59-62.
45 This document consisted of chapter headings and notes of issues under each chapter heading. Discussions in the plenary session, with reference to ‘collection of views' produced by the BLDC secretariat from the views heard by the visiting delegation, focused the issues of concern and resulted in changes in the draft of this document.
46 The five sub-groups were: (i) Central-SAR relationship (including external affairs of the HKSAR, and the interpretation and amendment of the Basic Law); (ii) Fundamental rights and duties of residents of the SAR; (iii) Political system of the SAR; (iv) Economy of the SAR; and (v) Education, Science, Technology, Culture, Sports and Religion of the SAR (including the regional flag and regional emblem). Each sub-group was co-chaired by a BLDC Mainland member and a BLDC HK member. of the draft provisions. The initial product of the coordinating group was discussed in December 1987.
The BLDC scrutinised and adopted in the seventh plenary session held in April 1988 a draft of the Basic Law revised by the coordinating group.[274] This draft was then released publicly in Mainland China and Hong Kong for the solicitation of public opinions (DBLSO) for five months.[275] The BLCC organised activities in those five months to publicise the consultation and collect and collate the views of the Hong Kong public,[276] and such activities included visits by BLDC Mainland members in June and September 1988.[277] After the end of the consultation period, the BLCC processed 72,632 items of opinion received and produced five volumes of consultation reports of overall and particular views for reference by the BLDC.
There followed meetings of the BLDC sub-groups in November 1988 to further revise the draft provisions in light of the views received from Hong Kong and Mainland China. The further revised draft provisions from the BLDC subgroups were then studied and modified by an enlarged chairmen’s meeting held in December 1988. The eighth plenary meeting of the BLDC held in January 1989 received and discussed this revised and modified draft and adopted the Basic Law (Draft) by a provision-by-provision vote with a threshold of two-thirds majority of all members of the BLDC.[278] The Chairman of the BLDC reported to the session of the SCNPC on the Basic Law (Draft) and associated documents on 15 February 1989. The SCNPC session decided on 21 February 1989 that the Basic Law (Draft) be released for public consultation in the Mainland and in Hong Kong.[279] Again, the BLCC published and distributed copies of the Basic Law (Draft) in Hong Kong,[280] and organised activities to publicise the consultation and collect and collate views, including assisting a delegation of BLDC Mainland members visiting Hong Kong in April 1989.
The student movement in Beijing between April and June 1989 and the responses of the Central Peoples Government (CPG) to it interrupted the processes of the consultation of the Basic Law (Draft).[281] The BLCC suspended its activities on 7 June 1989. The BLCC resumed the consultations on 20 July, following a visit to Beijing by leading members of the BLCC to meet the PRC leadership and the leaders of the BLDC. The consultation period was extended to 31 October 1989 but some planned activities, including visits by BLDC Mainland members, were cancelled. In the end, the BLCC processed 6,275 items of opinion received and produced a consultation report of three volumes for submission to the BLDC.
The BLDC held the ninth and the last plenary session in February 1990. By that time, two BLDC Hong Kong members had resigned,[282] and two BLDC Hong Kong members had their membership terminated by the SCNPC.[283] The plenary session scrutinised a further revised Basic Law (Draft) and voted on a provision-by- provision basis for adoption by a two-third majority of all members of the BLDC. Thereupon the BLDC completed its work of drafting and its Chairman reported the work to the NPC session on 28 March 1990. After scrutiny, the NPC session adopted the Basic Law and its related documents on 4 April 1990. The President of the PRC promulgated the Basic Law on 4 April 1990, stating that it would come into effect on 1 July 1997.
III.