Constitutional Competition Between the Hong Kong Court of Final Appeal and the Chinese National People's Congress Standing Committee: A Game Theory Perspective

Authors

  • Eric C. Ip

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    • Eric C. Ip is an Assistant Professor of Law at the Chinese University of Hong Kong Faculty of Law (ericip@cuhk.edu.hk). He completed his D.Phil. at the Centre for Socio-Legal Studies, Faculty of Law, University of Oxford. Special thanks are due to Denis Galligan, David Erdos, Yuka Kobayashi, Cristina Parau, and three anonymous reviewers for their helpful comments and suggestions on prior drafts. All errors are the author's own.

Abstract

The competition between the Hong Kong Court of Final Appeal, a cosmopolitan common law supreme court, and the Chinese National People's Congress Standing Committee, a Leninist parliamentary body, over the “proper meaning” of the Hong Kong Basic Law constituted a very important facet of the territory's constitutional history since the end of British rule in 1997. This article applies the insights of game theory to explain why constitutional stability, in the sense that the two players have never entered into an open collision with each other despite the ambiguity of the Basic Law and the “One Country, Two Systems” formula, endured until the present day. It is argued that successful coordination between the two resulted from the strong aversion of the Court and the Standing Committee to constitutional crises, as well as from the fact that neither entity was capable of credibly signaling its commitment to an aggressive strategy all the time.

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