This research project focuses on the relevance of the basic structure doctrine to the Basic Law of the Hong Kong Special Administrative Region of China (Hong Kong). The doctrine entails that certain aspects or provisions of a constitution are so fundamental that they cannot be amended or taken away even by a constitutional amendment or legislation. In other words, the basic structure doctrine places a substantive limit on the constituent power of the legislature of a state. Such a limit – in the form of “unamendability” – could be set explicitly by a constitution or by courts through judicial interpretation.
Although the doctrine seeks to control the constituent power of legislatures, it also empowers courts and juxtaposes popular sovereignty with judicial sovereignty. This project investigates the role and scope of the basic structure doctrine as embodied in Article 159 of the Basic Law and compares it with the diverse evolutionary experiences of the doctrine in selected countries.
The Basic Law is the constitutional document for the HKSAR. Article 159 of the Basic Law embodies the basic structure doctrine.
Article 79 in Chapter VII Federal Legislation and Legislative Procedures of the Basic Law for the Federal Republic of Germany embodies the basic structure doctrine.
The basic structure doctrine is part of Indian constitutional law by virtue of judicial interpretation.
The doctrine was first cited with approval by the Federal Court in obiter of Sivarasa Rasiah and later enshrined by Article 159 of the Federal Constitution.