About This Project

The basic structure doctrine places limits on the constituent power of a legislature to amend a constitution. While this limit has been explicitly incorporated in several constitutions, it has been introduced implicitly through judicial interpretation in other instances. In either case, the doctrine raises several legitimate questions about democracy, the sovereignty of people, abuse of power by legislatures, judicial review, and constitutionalism. It is, therefore, no surprise that the basic structure doctrine has received significant attention from scholars as well as courts all over the world.

 

Despite being such a hotly debated topic in comparative constitutional law, it is surprising that the doctrine has been hardly investigated in detail in relation to Hong Kong’s Basic Law, despite its explicit recognition in Article 159. This project seeks to examine the role and scope of the basic structure doctrine as embodied in Article 159: “No amendment to this Law shall contravene the established basic policies of the People’s Republic of China regarding Hong Kong.”

 

The proposed research is critical to Hong Kong’s high degree of autonomy and human rights guarantees under the “One Country, Two Systems” because the power to amend the Basic Law lies with the National People’s Congress (NPC). Moreover, interpretations issued by the NPC’s Standing Committee under Article 158 may also have the effect of amending the Basic Law without resorting to the amendment power under Article 159.

Considering the diverse evolutionary experiences of the basic structure doctrine in selected countries, this research project will inquire about the potential of this doctrine to operate as a counter-balancing check on the powers of the NPC and its Standing Committee under the Basic Law. There are two interlinked parts to this inquiry: first, the normative relevance of the doctrine for Hong Kong’s constitutional scheme; and second, the potential institutional means to enforce this doctrine under the Basic Law.

Selected useful resources

  • Aharon Barak, “Unconstitutional Constitutional Amendments” (2011) 44 Israel Law Review 321-340

  • Gary Jeffrey Jacobsohn, ‘An unconstitutional constitution? A comparative perspective’ (2006) 4:3 International Journal of Constitutional Law 460-487

  • Monika Polzin, ‘The basic-structure doctrine and its German and French origins: A tale of migration, integration, invention and forgetting’ (2021) 5 Indian Law Review 45-61

  • Rehan Abeyratne and Ngoc Son Bui (eds.), Law and Politics of Unconstitutional Constitutional Amendments in Asia (Routledge, 2021)

  • Richard Albert and Bertil Emrah Oder (eds.), An Unamendable Constitution? Unamendability in Constitutional Democracies (Springer, 2018)

  • Sudhir Krishnaswamy, Democracy and Constitutionalism in India: A Study of the Basic Structure Doctrine (Oxford University Press, 2009)

  • Surya Deva, ‘Threats to Hong Kong’s Autonomy from the NPC’s Standing Committee: The Role of Courts and the Basic Structure Doctrine’ (2020) 50 Hong Kong Law Journal 901-933

  • Yaniv Roznai, “Unconstitutional Constitutional Amendments - The Migration and Success of a Constitutional Idea” (2013) 61 American Journal of Comparative Law 657-719

  • Yaniv Roznai, Unconstitutional Constitutional Amendments: The Limits of Amendment Powers (Oxford University Press, 2017)