Hong Kong

 

The basic structure doctrine is reflected in Article 159 of the Hong Kong Basic Law. It is evident throughout the drafting process from 1986 until its final version in 1990. Despite the National People’s Congress Standing Committee (NPCSC) issuing increasingly frequent interpretations of the Hong Kong Basic Law under Article 158, posing a serious threat to Hong Kong's high degree of autonomy, the basic structure doctrine in the Basic Law context has hardly been investigated in detail by scholars. The doctrine could serve as a constitutional hurdle for the NPCSC by preventing it from amending certain “basic policies”, which may include the idea of autonomy and the division of power that are built into the Basic Law.

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Article 159 of the Basic Law

(1) The power of amendment of this Law shall be vested in the National People's Congress. 

(2) The power to propose bills for amendments to this Law shall be vested in the Standing Committee of the National People's Congress, the State Council and the Hong Kong Special Administrative Region. Amendment bills from the Hong Kong Special Administrative Region shall be submitted to the National People's Congress by the delegation of the Region to the National People's Congress after obtaining the consent of two-thirds of the deputies of the Region to the National People's Congress, two-thirds of all the members of the Legislative Council of the Region, and the Chief Executive of the Region. 

(3) Before a bill for amendment to this Law is put on the agenda of the National People's Congress, the Committee for the Basic Law of the Hong Kong Special Administrative Region shall study it and submit its views. 

(4) No amendment to this Law shall contravene the established basic policies of the People's Republic of China regarding Hong Kong. 

Drafting History of Article 159
 

Throughout the four years of drafting, Article 159(4) has changed substantively in content despite capturing the same spirit as some may argue.
 
Tracing back to 1986 when the first draft is produced, it went as straightforward as “(Every) Basic principles governed by the general principles of this Law shall not be amended”*. In May 1987, some members of the Drafting Committee for the Basic Law suggested a different choice of words – “principles” to capture what cannot be amended. Thus, in the later drafts, the word “principles” was used instead. However, the discussion continues in February 1990 where the use of both “principles” and “policies” be used. But the change is ultimately not adopted. 
 
That brings the question of the inconsistency of the choice of words in the drafting as well as the translation of the basic law. Examples include “方針” and “政策”. They both mean “policies” in layman terms. But what does it mean to use both of them together? Does the official English version reflect the true meaning given the drafting history? This uncertainty remains to be solved despite Instrument 14 of the Basic Law where it is stated that: “In case of any discrepancy in the meaning of wording between the English text and the Chinese text, the Chinese text shall prevail.

(*unofficial translation)

Interpretations

The only instance the doctrine has been referred to in Hong Kong courts is in Leung Chung Hang Sixtus (梁頌恆) v President of Legislative Council [2018] HKCFI 2657, [2019] 1 HKLRD 292 by the applicant. However, the Court held that the doctrine adds nothing of substance to the consideration of the critical question of whether the Guangzhou-Shenzhen-Hong Kong Express Rail Link (Co-location) Ordinance is inconsistent with the Basic Law.

 
Useful Resources
  • Websites

Basic Law Drafting History Online. Available at: http://sunzi.lib.hku.hk/bldho/textualHistoryChap8.action 

 

  • Cases

Leung Chung Hang Sixtus (梁頌恆) v President of Legislative Council [2018] HKCFI 2657, [2019] 1 HKLRD 292. Available at https://www.hklii.hk/cgi-bin/sinodisp/eng/hk/cases/hkcfi/2018/2657.html.

 

  • Articles

Surya Deva, 'Making peace with Hong Kong: What could Beijing learn from Newton’s 3rd law of motion?' (Hong Kong Free Press, 2 September 2015) <https://www.hongkongfp.com/2015/09/02/making-peace-with-hong-kong-what-could-beijing-learn-from-newtons-3rd-law-of-motion/> accessed 5 September 2021.

Surya Deva, 'Threats to Hong Kong's Autonomy from the NPC's Standing Committee: The Role of Courts and the Basic Structure Doctrine' [2020] HKLJ 901.

 

Swati Jhaveri (2018) “Reconstitutionalizing Politics in the Hong Kong Special Administrative Region of China” 13(1) Asian Journal of Comparative Law 27. Available at:

https://www.cambridge.org/core/journals/asian-journal-of-comparative-law/article/reconstitutionalizing-politics-in-the-hong-kong-special-administrative-region-of-china/3F295FFBB81F7BFBD4E490C06296B2DC