Threats to Hong Kong's autonomy from the NPC's Standing Committee: the role of courts and the basic structure doctrine

This article develops a typology to analyse actions taken by the Standing Committee of the National People’s Congress (NPCSC) in relation to Hong Kong from April 1990 to August 2020, and argues that one should look at the “substance” of an action rather than its “label”. By examining two NPCSC actions, namely, the 2014 decision concerning the election of the Chief Executive and the 2016 interpretation of art 104 of the Basic Law, this article shows that the NPCSC’s actions pose a serious threat to Hong Kong’s high degree of autonomy. Since there is no single viable option to control the misuse of powers by the NPCSC, the Court of Final Appeal (CFA) should play its role in preserving Hong Kong’s autonomy. Instead of showing over-deference to the NPCSC’s actions (including interpretations), the CFA should be willing to test whether the NPCSC actions comply with express and implied limitations on its powers flowing from the Basic Law. In appropriate cases, the CFA should issue a “declaration of incompatibility”, including relying on the basic structure doctrine if an action has the effect of amending the Basic Law.