The 28-Year Implementation of the Basic Law of the Hong Kong Special Administrative Region: The Qualitative Transformation from "One Country, Two Systems" to "Comprehensive Jurisdiction"

When The Basic Law of the Hong Kong Special Administrative Region of the People’s Republic of China (hereinafter the “Basic Law”) was promulgated in 1990 and formally came into force on July 1, 1997, the international community was generally concerned about whether the “One Country, Two Systems” framework and the “high degree of autonomy” promised by the People’s Republic of China (hereinafter “China”) could, after the transfer of sovereignty, safeguard Hong Kong’s prosperity and stability, and whether the freedoms and human rights of Hong Kong residents could be effectively protected. How a country operating under a civil law system and adhering to a socialist system could govern, under the rule of law, a capitalist city that had operated under the British common law system for more than a century was undoubtedly an extremely rare case in history. More than half of the promised “50 years without change” has now passed. At this stage, it is possible to make a preliminary observation and analysis of whether, in practice, the Basic Law has achieved the consensus reached between China and the United Kingdom during their negotiations in 1984. This article attempts to briefly review several significant legal events in the Hong Kong Special Administrative Region (hereinafter the “HKSAR”) since the transfer of sovereignty, in order to observe the changes in the practice of “One Country, Two Systems” under the constitutional framework of the Basic Law, and further examine their impact on Hong Kong’s pre-existing values of freedom, democracy, human rights, and the rule of law.

I. Change of Sovereignty

Hong Kong was originally a small fishing village in Bao’an County under the Qing Dynasty. Following the Qing government’s defeat in wars with the United Kingdom, between 1842 and 1898 it successively entered into the Treaty of Nanking, the Convention of Peking, and other agreements with the United Kingdom, ceding Hong Kong Island and the Kowloon Peninsula and leasing the New Territories to the United Kingdom for 99 years. Hong Kong thus became an overseas territory under British rule.

Because the lease of the New Territories was due to expire in 1997, China and the United Kingdom began negotiations between sovereign states in 1984 concerning sovereignty over Hong Kong. The more than five million residents actually living in Hong Kong at the time were unable to participate. On December 19, 1984, China and the United Kingdom signed in Beijing the Sino-British Joint Declaration on the Question of Hong Kong (hereinafter the “Joint Declaration”), with then-Chinese premier Zhao Ziyang and British prime minister Margaret Thatcher as signatories. It was registered with the United Nations Secretariat as an international treaty.¹ The conclusion of the negotiations was that both sides agreed that sovereignty over Hong Kong Island, the Kowloon Peninsula, and the New Territories would be transferred from the United Kingdom to China in 1997.

1 No. 23391. The legal effect of this document under international law remains disputed. The British government continues to issue periodic reports on compliance with the Joint Declaration. The United States also has legislation governing its relations with Hong Kong and issues periodic reports.

I. The Joint Declaration and the Basic Law

Under the Joint Declaration, the Chinese government declared that its basic policies toward Hong Kong included the establishment of the Hong Kong Special Administrative Region (hereinafter the “HKSAR”) pursuant to Article 31 of the Constitution of the People’s Republic of China. Except for foreign affairs and defense, which would be the responsibility of the Central People’s Government, the HKSAR would enjoy a high degree of autonomy and would possess executive, legislative, independent judicial, and final adjudication powers. The laws then in force would basically remain unchanged, and the Chief Executive would be selected locally through elections or consultations. These policies were specifically set out in Annex I to the Joint Declaration. The National People’s Congress of China (hereinafter the “NPC”) would enact the Basic Law of the Hong Kong Special Administrative Region accordingly, with the commitment that these policies would remain unchanged for 50 years. The Chief Executive of the HKSAR would be selected through elections or consultations, while the legislature would be constituted by elections.² Hong Kong’s previous laws—including the common law, rules of equity, ordinances, subordinate legislation, and customary law—would in principle be maintained unless they contravened the Basic Law or were amended by the HKSAR legislature.

The laws applicable in the HKSAR include the Basic Law itself, the laws previously in force in Hong Kong, and laws enacted by the HKSAR legislature.³ The provisions of the International Covenant on Civil and Political Rights (ICCPR) and the International Covenant on Economic, Social and Cultural Rights (ICESCR) that applied to Hong Kong when it was a British territory would continue to remain in force.⁴ The Joint Declaration contains neither a dispute-resolution procedure nor an individual complaint mechanism, and Hong Kong residents are unable to seek remedies under it when their interests are infringed.

Between 1985 and 1990, the NPC established the Basic Law Drafting Committee to draft the Basic Law. The Basic Law was adopted at the Third Session of the Seventh NPC and designated as a national law.⁵ Under China’s legal system, the NPC is the highest organ of state power, ranking above the State Council and the Supreme People’s Court. Its powers include amending the Constitution, enacting laws, electing the President of the state, deciding on the Premier of the State Council, electing the Chairman of the Central Military Commission, electing the President of the Supreme People’s Court and the Procurator-General of the Supreme People’s Procuratorate, examining the national budget, and deciding on the establishment of special administrative regions and the systems to be instituted therein. From a purely legal-theoretical perspective, the authority of the NPC is unchallengeable.

^{2 Annex I, Section I of the Joint Declaration.
3 Ibid., Section II.
4 Ibid., Section XIII. The United Nations Human Rights Committee has continued to review compliance with the two Covenants.
5 The Hong Kong Basic Law Drafting Committee established by the NPC also set up the Basic Law Consultative Committee in Hong Kong, which conducted two rounds of public consultation on drafts of the Basic Law in 1988 and 1989. The Basic Law is a national law adopted by the NPC; it is not a constitution adopted by Hong Kong residents, the latter being what would possess legitimacy under constitutionalism.}

II. Amendments and Decisions Concerning the Annexes to the Basic Law: Reshaping Hong Kong’s Electoral and Political Landscape

The Basic Law consists of seven chapters and 160 articles, together with three annexes (hereinafter “Annex I,” “Annex II,” and “Annex III”). Although the Joint Declaration did not mention the specific electoral arrangements for the Chief Executive and the Legislative Council or the national laws applicable in the HKSAR, these matters have had an extremely important impact on the actual operation of “One Country, Two Systems” in the HKSAR.

1. Annex I: Arrangements for the Selection of the Chief Executive

Regarding the selection of the Chief Executive, Article 45 in Section 1, “The Chief Executive,” of Chapter IV, “Political Structure,” of the Basic Law provides:

“The Chief Executive of the Hong Kong Special Administrative Region shall be selected by election or through consultations held locally and be appointed by the Central People’s Government. The method for selecting the Chief Executive shall be specified in the light of the actual situation in the Hong Kong Special Administrative Region and in accordance with the principle of gradual and orderly progress. The ultimate aim is the selection of the Chief Executive by universal suffrage upon nomination by a broadly representative nominating committee⁶ in accordance with democratic procedures.”

Under Annex I, the Chief Executive is elected by a broadly representative Election Committee in accordance with the Basic Law and appointed by the Central People’s Government. The Election Committee consisted of 800 members from four sectors:

No.	Sector	Members
1	Industrial, commercial, and financial sectors	200
2	The professions	200
3	Labour, social services, religious, and other sectors	200
4	Members of the Legislative Council, representatives of district-based organizations, Hong Kong deputies to the NPC, and representatives of Hong Kong members of the National Committee of the Chinese People’s Political Consultative Conference	200
	Total:	800

The first Chief Executive was selected in accordance with the Decision of the National People’s Congress on the Method for the Formation of the First Government and the First Legislative Council of the Hong Kong Special Administrative Region. If the method for selecting Chief Executives after 2007 were to be amended, the amendments would require the endorsement of a two-thirds majority of all members of the Legislative Council, the consent of the Chief Executive, and approval by the Standing Committee of the National People’s Congress (hereinafter the “NPCSC”). Judging from the text, the initiative to amend the electoral method appeared to rest with the HKSAR Legislative Council, while approval by the NPCSC constituted the final procedural review.

6 The Joint Declaration did not state that candidates for Chief Executive had to be nominated by a “nominating committee” before being elected by universal suffrage.

2. Annex II: Arrangements for the Election of the Legislature

Regarding elections to the legislature, Article 68 in Section 3, “The Legislative Council,” of Chapter IV, “Political Structure,” of the Basic Law provides:

“The Legislative Council of the Hong Kong Special Administrative Region shall be constituted by election. The method for forming the Legislative Council shall be specified in the light of the actual situation in the Hong Kong Special Administrative Region and in accordance with the principle of gradual and orderly progress. The ultimate aim is the election of all members of the Legislative Council by universal suffrage. The specific method for forming the Legislative Council and its procedures for voting on bills and motions are prescribed in Annex II: ‘Method for the Formation of the Legislative Council of the Hong Kong Special Administrative Region and Its Voting Procedures.’”

Under Annex II, each term of the Legislative Council consisted of 60 members. The composition of its first three terms was as follows:

Term Composition First Term Formed in accordance with the Decision of the National People’s Congress on the Method for the Formation of the First Government and the First Legislative Council of the Hong Kong Special Administrative Region Second Term Functional constituencies (30 members), Election Committee (6 members), geographical direct elections (24 members) Third Term Functional constituencies (30 members), geographical direct elections (30 members)

If the method for forming the Legislative Council after 2007 required amendment to the provisions of Annex II, such amendment had to be endorsed by a two-thirds majority of all Legislative Council members, receive the consent of the Chief Executive, and be reported to the NPCSC for the record. Compared with amendments to the method for selecting the Chief Executive, the requirement for final review was less stringent: the amendment only had to be reported to the NPCSC for the record and did not require its approval.

3. Annex III: Application of National Laws in the HKSAR

Chapter II of the Basic Law, “Relationship between the Central Authorities and the Hong Kong Special Administrative Region,” provides that the laws in force in the HKSAR shall include the Basic Law, the laws previously in force in Hong Kong, and laws enacted by the HKSAR legislature. Article 18, however, adds what is substantively a proviso:

“National laws shall not be applied in the Hong Kong Special Administrative Region except for those listed in Annex III to this Law. The laws listed therein shall be applied locally by way of promulgation or legislation by the Region. The Standing Committee of the National People’s Congress may add to or delete from the list of laws in Annex III after consulting its Committee for the Basic Law of the Hong Kong Special Administrative Region and the government of the Region. Laws listed in Annex III to this Law shall be confined to those relating to defence and foreign affairs as well as other matters outside the limits of the autonomy of the Region as specified by this Law.”

The Joint Declaration originally agreed only that the HKSAR would enjoy a high degree of autonomy except in defense and foreign affairs, which would be administered by the Central People’s Government. The Basic Law, however, added another provision stating that, with respect to “other matters outside the limits of the autonomy of the Region as specified by this Law,” the NPCSC could, after consulting the HKSAR, add the relevant national laws to Annex III of the Basic Law for implementation in the HKSAR. At the transfer of sovereignty on July 1, 1997, the national laws included in Annex III concerned the national flag, consular privileges and immunities, the national emblem, the territorial sea, and the garrison.⁷

^{7 In 1997, the Decision of the Standing Committee of the National People’s Congress on Additions to and Deletions from the List of National Laws in Annex III to the Basic Law of the Hong Kong Special Administrative Region of the People’s Republic of China was adopted.}

4. Interpretation and Amendment of the Basic Law (Article 158)

Because the Basic Law is, as a matter of law, a national law adopted by the NPC rather than legislation originating from the HKSAR legislature, the power to amend it⁸ belongs to the NPC. The NPCSC has the power to interpret laws and, when the NPC is not in session, to supplement and amend laws in part, provided that such amendments do not contravene the basic principles of the law concerned.⁹

Article 158 provides that the power of interpretation of the Basic Law is vested in the NPCSC. The NPCSC, however, authorizes the courts of the HKSAR to interpret, in adjudicating cases, provisions that fall within the limits of the HKSAR’s autonomy, subject to the following proviso:

“However, if the courts of the Hong Kong Special Administrative Region, in adjudicating cases, need to interpret the provisions of this Law concerning affairs which are the responsibility of the Central People’s Government, or concerning the relationship between the Central Authorities and the Region, and if such interpretation will affect the judgments on the cases, the courts of the Region shall, before making their final judgments which are not appealable, seek an interpretation of the relevant provisions from the Standing Committee of the National People’s Congress through the Court of Final Appeal of the Region. When the Standing Committee makes an interpretation of the provisions concerned, the courts of the Region, in applying those provisions, shall follow the interpretation of the Standing Committee. However, judgments previously rendered shall not be affected.”

Under the Constitution of the People’s Republic of China, China practices governance according to law and builds a socialist state under the rule of law,¹⁰ and no law may contravene the Constitution. The NPC is the highest organ of state power, with the NPCSC as its permanent body.¹¹ Under the Basic Law, a national law enacted by the NPC, the HKSAR may retain the common law, but the ultimate powers of amendment and interpretation rest with the NPC. With authorization from the NPCSC, HKSAR courts may interpret the Basic Law in adjudicating cases involving matters within the limits of the HKSAR’s autonomy. However, where a provision concerns affairs administered by the Central Authorities or the relationship between the Central Authorities and the HKSAR, the Court of Final Appeal must, before rendering a final and unappealable judgment, request the NPCSC to interpret the provision concerned. The provisions do not specify the circumstances in which the Central Government may become involved in HKSAR affairs, nor do they specify when the NPC or NPCSC may proactively exercise their powers to amend or interpret the Basic Law. As noted above, under the allocation of powers within China’s legal system, the highest authority belongs to the NPC. Unless there is an express legal restriction on the exercise of that power, the NPC could theoretically exercise its authority to alter the HKSAR’s system. Whether such changes would violate obligations and civil rights under the Joint Declaration and the two Covenants, however, is not merely an issue of domestic law, but also one of public international law and international human rights law.

Accordingly, within the framework of “One Country, Two Systems,” the “Two Systems” means only that, for 50 years following the establishment of the HKSAR, the socialist system and policies would not be practiced there, while Hong Kong’s previous capitalist system and way of life would remain unchanged, thereby maintaining a distinction between the socialist and capitalist systems.¹² Under Chinese law, however, the HKSAR is merely a special arrangement operating under national law, and the NPC may still alter its system through domestic legislation or other means pursuant to the Constitution.

1. The Early Period of the Transfer of Sovereignty

Even before and during the early period of the transfer of sovereignty over Hong Kong, the NPCSC began adopting so-called “Decisions” through meetings, significantly affecting the institutional operation and governance of the HKSAR. Such “Decisions” differ from formal statutory provisions. Although their legal nature is not equivalent to that of national laws, under China’s legal system the Constitution provides that the powers of the NPC include “deciding on the establishment of special administrative regions and the systems to be instituted therein.” They are therefore accorded substantive legal effect. These “Decisions” became an important instrument through which the Central Government adjusted the HKSAR’s system, combining political decisions with constitutional documents and strengthening the Central Government’s leading role in implementing “One Country, Two Systems.”¹³ The functions and powers of the NPCSC also include “other functions and powers assigned to it by the National People’s Congress.”¹⁴ When exercising its authority to issue a Decision, the NPCSC appears to act on behalf of the NPC in determining the HKSAR’s system. As the permanent body of the NPC, an NPCSC Decision is not an administrative disposition by an administrative agency, and China’s Administrative Litigation Law of the People’s Republic of China does not apply. Legally, apart from the NPC itself, there is no other mechanism capable of checking such decisions, still less one available to residents of the HKSAR. From the application of China’s Nationality Law of the People’s Republic of China in the HKSAR and the English text of the Basic Law, to additions of national laws applicable under Annex III of the Basic Law,¹⁵ all have involved Decisions adopted by the NPCSC.

As early as February 23, 1997, the NPCSC adopted a Decision concerning Article 160 of the Basic Law, refusing to adopt certain provisions of the Hong Kong Bill of Rights Ordinance enacted under British rule as laws of the HKSAR on the ground that they contravened the Basic Law. The excluded provisions had expressly provided that, in interpreting and applying the Bill of Rights Ordinance, regard should be given to the provisions of the ICCPR applicable to Hong Kong, which were incorporated into the “Hong Kong Bill of Rights” in Part II of the Ordinance.¹⁶ They also provided that all pre-existing legislation that could not be interpreted consistently with the Ordinance would be repealed to the extent of the inconsistency, and that future legislation likewise had to be interpreted consistently with the ICCPR. Under the Joint Declaration¹⁷ and the Basic Law,¹⁸ the two Covenants were to be implemented through legislation.¹⁹

(1) 1999 — The First NPCSC Interpretation After the Transfer of Sovereignty, Concerning the Status of Mainland-Born Children of Hong Kong Residents

On July 1, 1997, sovereignty over Hong Kong was formally transferred from the United Kingdom to the People’s Republic of China. Shortly after the handover, on June 26, 1999, the NPCSC issued its first interpretation of the Basic Law (hereinafter an “Interpretation”), marking the first such Interpretation after Hong Kong’s transfer of sovereignty.

This Interpretation arose from a judgment of the HKSAR Court of Final Appeal concerning the right of abode of children. The issue was whether children born in mainland China, one of whose parents was a Hong Kong resident, automatically acquired the right of abode in Hong Kong. The Court of Final Appeal ruled in favor of the applicants, finding that such children possessed the right of abode in Hong Kong. The NPCSC, however, considered that the case involved the relationship between the Central Authorities and the HKSAR, that the Court of Final Appeal had failed to follow the procedure for seeking an Interpretation, and that the court’s interpretation of the Basic Law did not conform to the original legislative intent.

Following the submission of a report by the HKSAR Chief Executive, the NPCSC therefore adopted an Interpretation through a meeting. It is noteworthy that both Interpretations and Decisions are made through closed-door meetings: internal discussions are not public, and there is no requirement to provide specific legal reasoning or explanations. This differs significantly from a judicial interpretation mechanism that is transparent, public, and accompanied by written reasons.

Although both Taiwan and China operate civil law systems, under which laws theoretically should be enacted by the legislature and interpreted and applied by the courts, the NPCSC Interpretation system in China and Taiwan’s constitutional review system before the Constitutional Court reflect fundamentally different constitutional structures and allocations of power. In Taiwan, constitutional review procedures are expressly governed by the Constitutional Court Procedure Act, with strict procedural requirements, public proceedings, and written reasoning, emphasizing constitutional oversight and human rights protection. By contrast, China’s NPC interpretations demonstrate legislative supremacy under a socialist model and create institutional challenges to the judicial independence and legal certainty previously existing in the HKSAR. China’s Constitution establishes socialism as the fundamental system of the state and the NPC as the highest organ of state power,²⁰ superior to the executive and judicial organs. NPCSC Interpretations are absolutely binding on the HKSAR Court of Final Appeal. HKSAR courts may only comply with them and may neither review nor refuse to apply them.

From the standpoint of the hierarchy of laws, this is not difficult to understand: the power to interpret the Basic Law, a national law, belongs to the NPCSC, which is superior to the HKSAR judiciary, fundamentally limiting judicial independence. By comparison, Taiwan’s Constitutional Court is a specialized judicial body under the Judicial Yuan. Pursuant to the Constitution and the Constitutional Court Procedure Act, it is responsible for interpreting the Constitution and providing uniform interpretations of laws and regulations. Constitutional review proceedings are public, subject to requirements of procedural justice, and emphasize legal reasoning and the protection of rights.

The establishment and operation of the Constitutional Court reflect the principle of separation of powers and provide checks and balances against the executive and legislative branches. China has no judicial institution with constitutional-review powers and has not granted courts the power of judicial review of constitutionality. The ultimate power to interpret the Constitution and design the constitutional system is concentrated in the NPC and NPCSC, reflecting the socialist model rather than a constitutional order based on judicial independence.

(2) 2004 — Interpretation and Decision Adding an NPC Approval Mechanism for Universal Suffrage and Rejecting Dual Universal Suffrage in 2007–2008

On July 1, 2003, the HKSAR Government’s preparations to enact the National Security (Legislative Provisions) Bill pursuant to Article 23 of the Basic Law triggered the first large-scale social movement after the transfer of sovereignty, with approximately 500,000 people taking to the streets in opposition.²¹ Under intense public pressure, the Hong Kong government ultimately withdrew the proposed Article 23 legislation in 2003. Against this background, the Central Government began intervening more actively in the HKSAR’s political reform. On April 6, 2004, the NPCSC proactively issued the second Interpretation since Hong Kong’s handover, interpreting Article 7 of Annex I and Article 3 of Annex II to the Basic Law and addressing procedural questions concerning whether and how the methods for selecting the Chief Executive and forming the Legislative Council after 2007 could be amended.

The Interpretation stated that the electoral methods after 2007 could either be amended or remain unchanged. If they were to be amended, the following procedure had to be followed: first, the amendment had to be endorsed by a two-thirds majority of the Legislative Council of the HKSAR; second, it had to receive the consent of the Chief Executive; and third, it had to be submitted to the NPCSC for approval or for the record. Whether the amendment procedure could even be initiated, however, was determined by two additional steps: fourth, the Chief Executive first had to submit a report to the NPCSC; and fifth, the NPCSC would then, pursuant to the Basic Law and taking into account the actual situation in the HKSAR and the principle of gradual and orderly progress, issue a “Decision” on whether an amendment could proceed. This Interpretation effectively gave the Central Government a “substantive veto” over electoral reform. Even if the HKSAR legislature and society broadly supported reform, the proposal could still be blocked if the Chief Executive did not submit a report, or if the NPCSC considered the reform inconsistent with the “actual situation” or the principle of “gradual and orderly progress.” The Interpretation marked the beginning of substantive NPCSC review and control over Hong Kong’s electoral system and further restricted the space for a “high degree of autonomy” and democratic development.²² If no amendment were made, the method used for the third term would continue to apply after 2007.

On April 26 of the same year, the NPC immediately followed with the Decision on the Methods for Selecting the Chief Executive in 2007 and for Forming the Legislative Council in 2008 (hereinafter the “2004 Decision”). After reviewing the report submitted by the Chief Executive, the Decision expressly determined that the HKSAR did not yet have the conditions necessary for “dual universal suffrage,” meaning universal suffrage for both the Chief Executive and all members of the Legislative Council. The NPCSC therefore decided that neither the 2007 Chief Executive election nor the 2008 Legislative Council election would be conducted by universal suffrage. The Decision nevertheless stated that “appropriate amendments” could be made to the electoral methods in order to implement the Basic Law’s principle of developing democracy in a gradual and orderly manner. It also reiterated the long-term goals that the Chief Executive ultimately be elected by universal suffrage following nomination “by a broadly representative nominating committee in accordance with democratic procedures,” and that all Legislative Council members ultimately be elected by universal suffrage. Under the institutional design created by the 2004 Interpretation and Decision, however, whether universal-suffrage reform could even be initiated no longer depended solely on local public opinion and democratic procedures in the Legislative Council. Instead, it was controlled by the Central Government through the Chief Executive’s report and the NPCSC’s “prior power to decide.” In other words, both the power to initiate universal-suffrage reform and the power of final approval were concentrated in Beijing.

This established a “top-down” mechanism for democratic development, making the progress of universal suffrage in Hong Kong entirely dependent on the Central Government’s interpretation of the “actual situation” and “gradual and orderly progress.” In effect, it hollowed out the space for “a high degree of autonomy” and democratic development granted to the HKSAR by the Basic Law. The Central Government could determine, based on its own political considerations, whether reform would be permitted to begin, and could reject electoral-reform proposals broadly supported locally without providing specific reasons. This profoundly affected Hong Kong’s subsequent political development and public confidence in the rule of law.

(3) 2005 — Interpretation Concerning the Term of Office of the Chief Executive

On April 27, 2005, the then-Chief Executive resigned because of illness before completing the remainder of his term. To resolve whether his successor’s term should be limited to the remainder of the original Chief Executive’s term, the NPCSC issued its third Interpretation, concerning Article 53, Paragraph 2 of the Basic Law.

(4) 2007 — Decision Rejecting Dual Universal Suffrage in 2012 but Allowing Universal Suffrage for the Chief Executive in 2017

On December 29, 2007, after considering the Chief Executive’s report, the NPCSC issued another Decision concerning universal suffrage for the Chief Executive and Legislative Council in 2012: neither the 2012 Chief Executive election nor the Legislative Council election would be conducted by universal suffrage, and the proportions of functional constituencies and geographical direct elections would remain unchanged. Subject to these conditions, the methods for selecting the Chief Executive and forming the Legislative Council in 2012 could be amended in accordance with the principle of gradual and orderly progress; the fifth-term Chief Executive in 2017 could be selected by universal suffrage; and after that, all Legislative Council members could also be elected by universal suffrage.

(5) 2010 — Decision Approving Amendments to the Methods for Selecting the Chief Executive and Forming the Legislative Council in 2012

Following political negotiations within the HKSAR, on August 28, 2010, the NPCSC approved the HKSAR Government’s proposed Decision amending the method for selecting the Chief Executive under Annex I of the Basic Law, increasing the number of Election Committee members for the 2012 election of the fourth-term Chief Executive from 800 to 1,200, divided into four major sectors. On the same day, the NPCSC also adopted amendments to Annex II concerning the method for forming the Legislative Council and voting procedures, increasing the number of seats in the fifth-term Legislative Council in 2012 from 60 to 70, with five additional seats each for functional constituencies and geographical direct elections. Under the amendments, the HKSAR Legislative Council classified the five newly created functional-constituency seats as “District Council”²³ functional-constituency seats. Candidates were nominated from among elected District Council members in the HKSAR’s 18 districts²⁴ and elected by HKSAR voters in five constituencies. Together with the five additional geographical direct-election seats, this meant that Hong Kong voters gained ten additional seats for which they could directly vote. The proportion of popularly elected members in the Legislative Council therefore increased.

(6) 2011 — Court of Final Appeal Request for an NPCSC Interpretation Concerning State Immunity

On August 26, 2011, at the request of the HKSAR Court of Final Appeal, the NPCSC issued its fourth Interpretation, concerning Articles 13 and 19 of the Basic Law and whether the HKSAR should apply the rules or policies on state immunity adopted by the Central People’s Government. The Interpretation held that the Central Authorities had the power to determine the state-immunity rules or policies applicable in the HKSAR because they concerned the foreign affairs of the state.

^{8 Article 62(3) of the Constitution of the People’s Republic of China provides that the NPC has the power to enact and amend criminal, civil, state-institutional, and other basic laws.
9 Ibid., Article 67(3) and (4).
10 Ibid., Article 5.
11 Ibid., Article 57.
12 Annex I to the Joint Declaration, Section I, “Elaboration by the Government of the People’s Republic of China of its Basic Policies Regarding Hong Kong.”
13 Article 62(14) of the Constitution.
14 Ibid., Article 67(22).
15 Concerning the national flag, consular matters, the national emblem, territorial waters, the garrison, and the exclusive economic zone.
16 Incorporating certain provisions of the ICCPR.
17 Annex I, Section XIII of the Joint Declaration.
18 Article 39 of the Basic Law provides that the provisions of the two Covenants as applied to Hong Kong shall remain in force and shall be implemented through the laws of the HKSAR. The rights and freedoms enjoyed by Hong Kong residents shall not be restricted unless prescribed by law, and such restrictions shall not contravene the provisions of Paragraph 1 of Article 39.
19 During British rule, the Legislative Council also repealed certain provisions of the Public Order Ordinance. These amendments were likewise not adopted on the ground that they contravened the Basic Law.
20 Article 57 of the Constitution.
21 BBC News Chinese, “Background: Ten Years of Hong Kong’s July 1 March”, July 1, 2013.
22 The two additional steps requiring the Chief Executive first to submit a report on whether amendments should be made and then obtain NPCSC approval are not found in the Basic Law. The original three-step procedure became a “five-step procedure” after these two additional steps were added.
23 District Councils are district-level advisory bodies. The HKSAR is divided into 18 districts, and before 2023 most District Council members were elected through geographical direct elections.
24 Their work is somewhat similar to that of neighborhood chiefs in Taiwan.}

2. Policy Shift Following the Change in China’s Leadership at the End of 2012 — Overall Jurisdiction

The year 2014 was a pivotal one. On June 10, China’s State Council issued the white paper The Practice of the “One Country, Two Systems” Policy in the Hong Kong Special Administrative Region, offering a new interpretation of the meaning of “One Country, Two Systems,” including the following:

1. The Constitution and the Basic Law together constitute the special institutional and legal framework China applies to the HKSAR and establish the fundamental principles of “One Country, Two Systems.” Under this framework, the Central Government possesses “overall jurisdiction” over the HKSAR, including powers directly exercised by the Central Authorities, while at the same time authorizing the HKSAR to enjoy a “high degree of autonomy” pursuant to the Basic Law. However, the HKSAR’s autonomy is not complete autonomy. The Central Authorities retain powers of supervision and intervention over the exercise of autonomy and may guide and restrict it through adjustments to laws and policies.
   
2. The central organs exercising authority include the NPC and NPCSC, the President of the state, the Central People’s Government, and the Central Military Commission. These central organs exercise their respective powers pursuant to the Constitution and the Basic Law. Specifically, these include the power to amend and interpret the Basic Law; the power to issue “Decisions” having legal effect; legislative-supervision powers; the power to decide that the HKSAR is in a state of emergency; and the power to authorize new powers for the HKSAR or adjust its institutional arrangements. Through these mechanisms, the Central Authorities fulfill their “overall jurisdiction” and constitutional responsibilities toward the HKSAR in accordance with law and maintain the leading role in the evolution and development of the HKSAR’s institutions.²⁵
   
3. “One Country” means that, within the People’s Republic of China, the HKSAR is an inalienable part of the state and a local administrative region directly under the Central People’s Government. The Central Government possesses overall jurisdiction, and the HKSAR’s high degree of autonomy derives solely from “authorization” by the Central Authorities. It is not complete autonomy or a division of powers, but rather jurisdiction over local affairs granted by the Central Authorities. The limit is that “the HKSAR enjoys as much power as the Central Government grants it; there is no such thing as ‘residual power.’” The Constitution expressly establishes the socialist system as the fundamental system of the People’s Republic of China, together with the state’s basic institutions, core leadership, guiding ideology,²⁶ and other systems and principles.
   
4. “Two Systems” means that the HKSAR practices a capitalist system. “One Country” is the prerequisite and foundation of “Two Systems”; the latter is subordinate to and derives from the former and exists within the unity of “One Country.” The two are therefore not of equal weight. On this premise, “Hong Kong people administering Hong Kong” and a high degree of autonomy are implemented in accordance with the Basic Law, while the socialist system practiced by the main body of the state must be fully respected under the premise of adhering to the “One Country” principle.
   
5. The Constitution is the fundamental law of the state and possesses the highest legal status and effect nationwide. The Basic Law has constitutional status within the HKSAR, and no HKSAR law may contravene it; the executive, legislature, and judiciary must all comply with the Basic Law. As a national law, the Basic Law applies throughout the country. The power of the HKSAR Court of Final Appeal to interpret it derives from authorization by the NPCSC. The NPCSC’s lawful exercise of its power to interpret the Basic Law is considered necessary for safeguarding “One Country, Two Systems” and the rule of law in Hong Kong: it both supervises implementation of the Basic Law and safeguards the HKSAR’s high degree of autonomy.
   
6. The methods for selecting the Chief Executive and forming the Legislative Council established a “five-step” legal procedure: the Chief Executive submits a report to the NPCSC; the NPCSC issues a Decision; the Legislative Council approves the proposal; the Chief Executive gives consent; and the NPCSC approves the amendment or records it.
   
7. Three methods were established for interpreting the Basic Law: first, the NPCSC may issue an “Interpretation” on its own initiative; second, the Chief Executive may submit a report to the State Council requesting the NPCSC to issue an Interpretation; and third, the Court of Final Appeal may request an NPCSC Interpretation.
   
8. Regarding the allocation of responsibilities between the HKSAR and the Central Authorities, a system was established under which the Chief Executive reports on his or her duties to the Central Authorities.
   
9. Most importantly, the white paper emphasized “upholding ‘Hong Kong people administering Hong Kong’ with patriots as the mainstay.” This principle maintains that “Hong Kong people administering Hong Kong” must be implemented subject to boundaries and standards—namely, Deng Xiaoping’s insistence that the HKSAR must be administered principally by Hong Kong people who are patriots. Loyalty to the state is a “basic political ethic that those participating in governance must follow.” If those governing Hong Kong cannot remain loyal to the state and the HKSAR, the implementation of “One Country, Two Systems” would deviate from its proper direction; state sovereignty, security, and development would be difficult to safeguard; and the prosperity and stability of the HKSAR and the well-being of Hong Kong people would be harmed. The legal basis for “patriots administering Hong Kong” was said to be found in the Basic Law: the Chief Executive, principal officials, members of the Executive Council, the President of the Legislative Council, a majority of legislators, judges of the courts at all levels, and other members of the judiciary are required, upon assuming office, to swear to uphold the Basic Law of the HKSAR and swear allegiance to the HKSAR.²⁷ The conclusion stated that, on the one hand, implementation of “One Country, Two Systems” must continue, while on the other hand vigilance must be maintained against other forces using Hong Kong to interfere in China’s internal affairs, and efforts must be made to prevent and suppress the very small number of people who collude with external forces to undermine the implementation of “One Country, Two Systems.”²⁸
   

The document foreshadowed a significant shift in the Central Government’s approach to governing the HKSAR and laid out a policy blueprint for its subsequent extensive intervention in HKSAR affairs. These policies appear plainly inconsistent with the spirit and purposes of the Joint Declaration and the two Covenants. In particular, serious questions arose as to how the Central Government’s principles of “overall jurisdiction” and “patriots administering Hong Kong” could be reconciled with “One Country, Two Systems,” a “high degree of autonomy,” and “Hong Kong people administering Hong Kong.” Originally, only defense and foreign affairs were matters administered by the Central Government. The new policy position claimed that all remaining HKSAR affairs also fell within the sphere of central governance and emphasized that Hong Kong’s leaders had to be exclusively “patriots.” From a legal perspective, neither the Constitution nor the Basic Law provides a clear definition of a “patriot.” The preamble of the Constitution, however, states that “in the long course of revolution, construction and reform, there has been formed, under the leadership of the Communist Party of China and with the participation of the various democratic parties and people’s organizations, a broad patriotic united front composed of all socialist working people, all builders of socialism, all patriots who support socialism, all patriots who stand for the reunification of the motherland and all patriots who are dedicated to the rejuvenation of the Chinese nation. This united front will continue to be consolidated and developed.” Looking at the HKSAR as a whole, those most likely to satisfy this condition of being “patriots” would be members of Hong Kong’s pro-establishment camp.

(1) 2014 — Universal Suffrage for Chief Executive Candidates Subject to Nomination by a Nominating Committee

On August 31, 2014, after considering the report submitted by the Hong Kong Chief Executive on July 15, 2014, the NPCSC issued a Decision on arrangements for the selection of the HKSAR Chief Executive by universal suffrage and the method for forming the Legislative Council in 2016 (hereinafter the “August 31 Decision”). The Decision stated that the Chief Executive could be selected by universal suffrage in 2017, but only according to the following procedure: a “broadly representative” nominating committee would nominate two or three candidates; each candidate had to obtain the support of more than half of the committee’s members; voters would then elect one of those candidates; and finally, the Central Government would appoint the successful candidate. The institutional arrangements for the universal-suffrage procedure would be implemented through amendments to Annex I of the Basic Law. If the reform proposal failed to pass, the method used in the previous Chief Executive election would continue to apply. The 2016 Legislative Council election would likewise continue to be governed by the rules applicable to the fifth-term Legislative Council.

After universal suffrage was implemented for the Chief Executive, universal suffrage for the Legislative Council would still have to proceed in accordance with NPCSC interpretations of Annexes I and II to the Basic Law. Regarding the composition of the nominating committee, NPCSC Deputy Secretary-General Li Fei, in an “Explanation” delivered at a meeting on August 27, 2014, stated that the Chief Executive had to be a person who “loves the country and loves Hong Kong,” and that the nominating committee should follow the existing model of the Election Committee, consisting of 1,200 members divided equally among four major sectors. The authorities considered this arrangement to reflect the principle of “universal and equal suffrage.” Under the August 31 Decision, so-called universal suffrage for the Chief Executive would in practice mean that candidates were first screened by the nominating committee before all voters were permitted to choose one of them. For the Legislative Council, meanwhile, there remained no concrete timetable for full universal suffrage. By 2016, 19 years after the transfer of sovereignty, half of Legislative Council seats were still returned through functional constituencies.

The August 31 Decision triggered intense social controversy. On September 26, 2014, a series of civil movements seeking “genuine universal suffrage” began in Hong Kong and later became known as the Umbrella Movement. Participants occupied multiple locations, including areas surrounding the government headquarters in Admiralty, and the movement lasted 81 days. According to estimates based on opinion polls, approximately 1.2 million people participated at some point.²⁹ Despite the scale of the public response, the Central Government made no changes to the August 31 Decision. After the movement, on June 18, 2015, the HKSAR Government proposed a political-reform package based on the Decision, under which a 1,200-member nominating committee would form the basis of the mechanism for selecting the Chief Executive. It submitted the Motion Concerning the Amendment to the Method for the Selection of the Chief Executive to the Legislative Council for a vote,³⁰ but the proposal ultimately failed.³¹ Furthermore, on February 8, 2016, the first day of the Lunar New Year, large-scale clashes between police and members of the public occurred in Mong Kok following official enforcement action against unlicensed street hawkers. Several activists were arrested and later charged with rioting. The incident subsequently became known as the Fishball Revolution.

On September 4, 2016, the HKSAR held elections for the sixth-term Legislative Council. Voter turnout in the geographical constituencies was 58.28%.³² The pro-democracy camp ultimately won 29 of the 70 seats, while the pro-establishment camp secured 40, three fewer than in the previous term. Notably, from this election onward, the HKSAR Government began using administrative measures to conduct political screening of Legislative Council candidates. Some candidates failed to pass political vetting by returning officers, resulting in their nominations being declared invalid and their right to stand for election being denied.³³

This constituted a substantive restriction on the right to be elected.

On October 12, 2016, the sixth-term Legislative Council held its first meeting, at which members-elect were required to take their oaths of office. Several pro-democracy members-elect inserted personal wording, performed particular gestures, or displayed signs during their oath-taking. They were regarded as having failed to take their oaths in accordance with law and therefore as not having validly assumed office. The President of the Legislative Council subsequently arranged for those members to retake their oaths on October 18. The then-Chief Executive, however, asserted that the members had violated the legal prohibition on “declining or neglecting to take the oath” and, before the second oath-taking could occur, applied to the Court of First Instance of the High Court for an injunction against two pro-democracy members-elect and for declarations that they were disqualified from serving as legislators.

(2) 2016 — Retrospective Interpretation of the Legal Requirements for Legislators’ Oaths

While the relevant proceedings were still before the courts, on November 7, 2016, the NPCSC proactively issued an Interpretation of Article 104 of the Basic Law. The provision originally required public officials of the HKSAR, including Legislative Council members, to swear, upon assuming office, to uphold the Basic Law and swear allegiance to the HKSAR. The NPCSC Interpretation expressly stated that anyone who failed to take a valid oath in accordance with law or refused to take the oath was disqualified from assuming public office; the oath-taking procedure had to satisfy statutory requirements; the oath-taker had to take the oath sincerely and solemnly; and the statutory oath had to be read accurately, completely, and solemnly. Any oath failing to meet these requirements was to be regarded as invalid, and no new oath-taking arrangement could be made.

On November 15, 2016, the Court of First Instance ruled that the oaths of the two Legislative Council members were invalid and declared them disqualified.³⁴ Both appealed to the Court of Appeal, which upheld the ruling on November 30 and stated that the HKSAR was obliged to adjudicate the case in accordance with the NPCSC Interpretation.³⁵ The two then sought leave from the Court of Appeal to appeal to the Court of Final Appeal, but their applications were dismissed on January 16 of the following year. The Court of Appeal held that, even though the Interpretation had been issued after the disputed oath-taking conduct occurred, it nevertheless had retrospective effect dating back to the day on which the Basic Law came into force.³⁶ The judgment effectively confirmed that an NPCSC Interpretation could determine, after the facts of an individual case had already occurred, whether those facts were lawful, and could have retrospective effect on an existing and specific legal dispute.

Following the disqualification of the two legislators, on December 2, 2016, the then-Chief Executive brought proceedings against four additional pro-democracy members-elect, contending that their oaths failed to meet the statutory requirements and asking the court to declare the oaths invalid. Following trial, on July 14, 2017, the Court of First Instance held that the four oaths were invalid and that the members were disqualified. The four appealed to the Court of Appeal, which upheld the original ruling on February 15, 2019. They subsequently sought leave to appeal to the Court of Final Appeal, but leave was refused on June 13 of that year.

After these two rounds of administrative litigation, the number of pro-democracy members who retained their seats fell from the original 29 elected to the Legislative Council to only 23, substantially altering the political composition of the HKSAR legislature.

(3) 2019 — NPCSC Enactment of the National Security Law and Its Inclusion in Annex III to the Basic Law

In early 2019, the HKSAR Government introduced proposed amendments to the Fugitive Offenders Ordinance, triggering large-scale public protests later known as the anti-extradition bill protests. Beginning in June, millions of residents participated in the protests, which subsequently developed into large-scale clashes between police and protesters lasting for several months.

Against this background, the HKSAR Government held District Council elections on November 24, 2019. Hong Kong was divided into 18 districts, with 452 elected District Council members. Although District Councils had powers limited to district affairs and possessed no substantive executive authority, turnout reached a record-high 71.23%,³⁷ far exceeding turnout in the 2016 Legislative Council election. The results showed a dramatic expansion in seats held by the pro-democracy camp, from 124 in the previous term to 388, while the pro-establishment camp fell sharply from 327 seats to 86, including 27 ex officio members who served as chairpersons of Rural Committees. Ultimately, 17 of the 18 District Councils came under the control of the pro-democracy camp, reflecting a strong public backlash.

In early 2020, the COVID-19 pandemic broke out. The HKSAR Government immediately introduced social-distancing and quarantine measures, and the social movement gradually subsided, bringing the anti-extradition bill protests to an end. Elections for the seventh-term Legislative Council were originally scheduled for September of that year. In preparation, the pro-democracy camp coordinated and organized an internal primary election. The organizers proposed a “35+” strategy, hoping to secure more than 35 seats in the Legislative Council and use the power to reject the HKSAR Government’s budget to pressure the government into carrying out political reform.

On May 28, 2020, the NPC convened and issued a Decision authorizing the NPCSC to enact the Law of the People’s Republic of China on Safeguarding National Security in the Hong Kong Special Administrative Region (hereinafter the “National Security Law”) and its implementation mechanisms for application in the HKSAR, and to include the National Security Law among the national laws listed in Annex III to the Basic Law. The NPCSC adopted the National Security Law on June 30, 2020, and it came into force at 11 p.m. that night. No public consultation was conducted in the HKSAR during the process, and the HKSAR Government and residents did not learn the specific text of the law until shortly before it came into force. The National Security Law was enacted pursuant to authorization from the NPC and, as a national law, possesses the same legal rank as the Basic Law. For the first time, the NPCSC directly legislated for the governance of the HKSAR by adding a national law specifically directed at the HKSAR to Annex III.³⁸ Under the Basic Law, the HKSAR had originally been expected to enact its own national-security legislation pursuant to Article 23, but that legislative effort was withdrawn in 2003 amid public opposition. The National Security Law completely bypassed the HKSAR legislature and was enacted by the NPCSC through the national legislative process.

Under the National Security Law, the HKSAR is required to establish the Committee for Safeguarding National Security (hereinafter the “National Security Committee”), comprising the Chief Executive, the Chief Secretary for Administration, the Financial Secretary, the Secretary for Justice, and the heads of other disciplined services. Decisions of the National Security Committee are not subject to interference by any institution and are not amenable to judicial review, effectively making the Committee a core institution within the HKSAR governance structure. At the same time, the Central Government established in the HKSAR the Office for Safeguarding National Security (hereinafter the “Office for Safeguarding National Security”), responsible for supervising the HKSAR in performing its duties to safeguard national security and empowered to handle certain national-security cases, thereby enabling the Central Authorities to intervene directly in the HKSAR’s law-enforcement system. The National Security Law establishes four principal offenses: secession, subversion of state power, terrorist activities, and collusion with a foreign country or with external elements to endanger national security. The maximum penalty is life imprisonment. The law also imposes strict restrictions on bail: unless a judge has sufficient grounds for believing that the suspect or defendant will not continue to commit acts endangering national security, detention will not be discontinued. In addition, the Chief Executive has the power to designate certain judges to hear national-security cases and may issue certificates binding on the courts as to whether a matter involves national security or state secrets. Where foreign forces are involved and the HKSAR courts face difficulties in exercising jurisdiction, the Supreme People’s Court may designate a court in China to hear the case. Although the National Security Law expressly states that the two Covenants continue to apply in Hong Kong, the above provisions have been criticized as plainly conflicting with fundamental human-rights principles protected by the ICCPR.³⁹ Moreover, how a national law operating under a socialist legal system is to be interpreted and applied within a common law jurisdiction is precisely a core legal issue under “One Country, Two Systems”: how two fundamentally different legal systems can operate simultaneously within the same jurisdiction. From the perspective of China’s legal system, of course, the National Security Law, as a national law, occupies a legal rank above local Hong Kong legislation such as the Hong Kong Bill of Rights Ordinance, leaving no room for doubt.

On July 11 and 12, 2020, the pro-democracy camp held primary elections involving candidates from five geographical constituencies and two functional constituencies. Nearly 610,000 people voted.⁴⁰ When formal nominations were subsequently submitted for the seventh-term Legislative Council election, however, returning officers declared the nominations of a number of pro-democracy candidates invalid on the ground that they did “not genuinely and sincerely uphold the Basic Law and pledge allegiance to the HKSAR,” resulting in the disqualification of at least 12 candidates.⁴¹

(4) 2020 — Decision Postponing the 2020 Legislative Council Election

On August 11, 2020, after considering a report from the Chief Executive and in response to the COVID-19 pandemic, the NPCSC issued a Decision postponing the election for the seventh-term Legislative Council for one year. The sixth-term Legislative Council continued to perform its functions after September 30, 2020.

(5) 2020 — Another Decision Concerning the Qualifications of Legislative Council Members

On November 11, 2020, at the request of the HKSAR Chief Executive, the NPCSC issued a Decision concerning the qualifications of Legislative Council members, intended to ensure that legislators satisfied the constitutional requirements of upholding the Basic Law and pledging allegiance to the HKSAR. The Decision stated that Legislative Council members engaging in any of the following conduct would fail to satisfy those requirements: advocating or supporting Hong Kong independence, refusing to recognize China’s exercise of sovereignty over Hong Kong, seeking intervention by foreign forces in HKSAR affairs, or engaging in other acts endangering national security. Once such circumstances were determined in accordance with law, the legislator would immediately lose his or her qualification without any further legal proceedings. The same standards would apply to candidates and persons elected in future Legislative Council elections. Pursuant to the Decision, the HKSAR Government announced on the same day⁴² that four incumbent pro-democracy legislators were immediately disqualified. The measure took effect without court proceedings, attracting widespread attention. The remaining pro-democracy legislators then announced their collective resignation on the same day. By November 12, a total of 15 pro-democracy legislators had submitted their resignations.⁴³ At that point, only two non-establishment legislators remained in the Legislative Council, creating a legislature dominated by a single political orientation.

Thereafter, the HKSAR Government further commenced law-enforcement action under the National Security Law. On January 6, 2021, the National Security Department of the HKSAR police arrested 57 people who had participated in the 2020 pro-democracy Legislative Council primaries on suspicion of committing “subversion of state power” under the National Security Law.⁴⁴ On February 28 of the same year, the HKSAR Government formally initiated criminal proceedings against 47 of them—the Hong Kong 47 case—and detained⁴⁵ most of the defendants, prompting substantial international concern over human rights and judicial independence in Hong Kong.

(6) 2021 — Decision to Improve the Electoral System Under the Principle of “Patriots Administering Hong Kong”

On March 11, 2021, the NPC proactively issued a Decision on improving the HKSAR’s electoral system to conform with the “One Country, Two Systems” policy and the actual circumstances of the HKSAR, emphasizing the need to ensure implementation of the principle of “patriots administering Hong Kong.” The Decision restructured the HKSAR’s electoral system and ensured that “Hong Kong people administering Hong Kong” would be implemented with patriots as the mainstay, thereby consolidating the Central Authorities’ leading role in the governance of the HKSAR. Under the Decision, a broadly representative Election Committee would be established to elect the Chief Executive and some members of the Legislative Council. The Election Committee would consist of five sectors with a total of 1,500 members representing different industries and social groups. Under the new system, a candidate for Chief Executive had to obtain nominations from no fewer than 188 Election Committee members, with no fewer than 15 nominators from each of the five sectors. To be elected, the candidate had to obtain the support of more than half of all members of the Election Committee. The Legislative Council was expanded to 90 seats, returned through three methods: the Election Committee, functional constituencies, and geographical direct elections. The system also established the Candidate Eligibility Review Committee of the HKSAR, responsible for reviewing and confirming the eligibility of candidates for the Election Committee, Chief Executive, and Legislative Council. The NPC further authorized the NPCSC, pursuant to the Decision, to amend Annex I of the Basic Law concerning the method for selecting the Chief Executive and Annex II concerning the method for forming the Legislative Council, and instructed the HKSAR Government to amend relevant local legislation accordingly. On March 30, 2021, the NPCSC adopted amendments to the Basic Law. Under the amended Annex I, the five sectors of the Election Committee were:

No.	Sector	Members
1	Industrial, commercial, and financial sectors	300
2	The professions	300
3	Grassroots, labour, religious, and other sectors	300
4	Members of the Legislative Council, representatives of district organizations, and others	300
5	Hong Kong deputies to the NPC, Hong Kong members of the National Committee of the Chinese People’s Political Consultative Conference, and representatives of Hong Kong members of relevant national organizations	300
	Total:	1,500

On March 30, 2021, the NPCSC also adopted amendments to Annex II of the Basic Law. The method for forming the Legislative Council and its voting procedures were as follows:

No.	Method	Members
1	Members returned by the Election Committee	40
2	Members returned by functional constituencies	30
3	Members returned by geographical direct elections	20
	Total:	90

Under the amended Legislative Council electoral system, candidates for seats “returned by the Election Committee” must obtain nominations from no fewer than 10 and no more than 20 members of the Election Committee (see Annex I to the Basic Law), with no fewer than two and no more than four nominators from each sector. The 40 candidates receiving the highest number of votes are elected. Candidates in geographical direct elections, meanwhile, must obtain nominations from no fewer than 100 and no more than 200 voters in the constituency concerned, as well as nominations from no fewer than two and no more than four Election Committee members from each of the five sectors. Each voter selects one candidate in the constituency, and the two candidates receiving the highest number of votes are elected.

In addition, the newly established Candidate Eligibility Review Committee may, on the basis of a review opinion issued by the National Security Committee established under the National Security Law, determine the eligibility of candidates for the Election Committee, Chief Executive, and Legislative Council. Under the design of the system, its eligibility determinations are final decisions and may not be challenged through any legal proceedings. The new system formally took effect on March 31, 2021.

Legally defining a “patriot” is not an easy task. The Decision merely stated that the HKSAR should establish and improve an eligibility-review mechanism but did not provide specific guidance or explanations regarding formal or substantive review. The standards and procedures applied by the National Security Committee have not been made public, making it difficult for outsiders to know the basis or criteria underlying its decisions. Moreover, the judiciary has no authority to review such decisions. The process therefore lacks transparency and imposes substantive restrictions on political participation.

Following the restructuring of the electoral system, elections for the new Election Committee were held on September 20, 2021. Of the 1,488 elected members, only one was not from the pro-establishment camp, while the number of eligible voters fell dramatically from more than 240,000 to 7,971 people (or institutional representatives).⁴⁶ Elections for the seventh-term Legislative Council were held on December 9, 2021. Almost all successful candidates were pro-establishment representatives, and turnout was 30.20%,⁴⁷ the lowest on record. The election for the fifth-term Chief Executive was held on May 8 of the following year. Only one candidate registered to run, ultimately receiving 1,416 votes from 1,428 Election Committee members, or 97.74% of the vote.⁴⁸

On March 19, 2024, the restructured Legislative Council unanimously passed the Safeguarding National Security Bill (hereinafter the “Safeguarding National Security Ordinance”) to implement Article 23 of the Basic Law. Only 11 days elapsed between publication of the bill on March 7 and its passage, and the Ordinance came into force on March 23. It created new offenses including treason, insurrection, sabotage, espionage, external interference, and theft of state secrets.⁴⁹

(7) 2022 — Interpretation Concerning the Engagement of Overseas Lawyers in National Security Law Cases

On December 30, 2022, the NPCSC issued its sixth Interpretation in response to a request from the HKSAR Government concerning Articles 14 and 47 of the National Security Law. The Interpretation arose after the High Court, in November of that year, permitted defendant Jimmy Lai⁵⁰ to engage a British King’s Counsel as his legal representative in criminal proceedings involving the National Security Law. The Department of Justice subsequently appealed to the Court of Final Appeal, but the appeal was dismissed.⁵¹ The HKSAR Chief Executive then requested that the NPCSC interpret the relevant provisions of the National Security Law. Under the resulting Interpretation, the engagement of overseas lawyers in National Security Law cases was considered a matter involving national security and therefore subject to review by the Hong Kong National Security Committee and to a certificate issued by the Chief Executive. The Interpretation effectively negated the Court of Final Appeal’s judgment in the case. Jimmy Lai subsequently applied to the High Court for leave to seek judicial review, asking the court to rule that the Interpretation should not apply retrospectively to his case, but the application was dismissed. The court held that it had no power to conduct judicial review on the ground that the National Security Law violated the Basic Law or the ICCPR, nor could it declare the National Security Law unconstitutional on the ground that it was inconsistent with the Basic Law or the Hong Kong Bill of Rights. The court also stated that decisions made by the National Security Committee were outside the scope of judicial review.⁵² The retrospective effect of the Interpretation was likewise confirmed and could be applied to National Security Law cases.

On May 30, 2024, the Court of First Instance of the High Court issued its reasons for verdict in the Hong Kong 47 case,⁵³ finding 14 defendants who had pleaded not guilty guilty of “subversion of state power” under Article 22(3) of the National Security Law. The court found that the defendants had agreed with others that, if they were elected in the 2020 Legislative Council election and obtained a majority of seats, they would adopt a strategy of “indiscriminately vetoing” the government budget in order to pressure the government into triggering the dissolution of the Legislative Council and the resignation of the Chief Executive. The court regarded this as an “unlawful means” that constituted serious interference with and disruption of the lawful performance of functions by HKSAR organs of power, and therefore constituted subversion under the law. The remaining 31 defendants had previously pleaded guilty, while two defendants were acquitted after trial. In their judgment, the three designated national-security judges directly cited the explanation given by NPCSC Vice Chairman Wang Chen at the Third Session of the Thirteenth NPC concerning the Draft Decision of the National People’s Congress on Establishing and Improving the Legal System and Enforcement Mechanisms for the Hong Kong Special Administrative Region to Safeguard National Security, using it to interpret the legislative purpose of the National Security Law.

The judgment emphasized that the case involved not only an attempt by local anti-China forces to paralyze the operation of the Legislative Council, but also intervention by foreign and external forces, and that the court had a responsibility under the National Security Law to prevent and punish such conduct. For first defendant Benny Tai, the starting point for sentencing was 12 to 15 years’ imprisonment, reduced to 10 years because of his guilty plea. The other defendants received sentences ranging from four years and two months to seven years and nine months depending on their degree of participation and mitigation.⁵⁴

On May 12, 2025, the HKSAR Government for the first time introduced two pieces of subsidiary legislation under the Safeguarding National Security Ordinance to the Legislative Council. They came into effect on May 13, 2025, after less than 24 hours of discussion.⁵⁵ The subsidiary legislation provides that the Office for Safeguarding National Security and its personnel, when performing their duties, are not subject to HKSAR jurisdiction, and that the HKSAR Government has a responsibility to pursue conduct that obstructs the performance of their duties. The legislative basis is Articles 55 and 57 of the National Security Law, under which, in specified circumstances, the HKSAR Government or the Office for Safeguarding National Security may seek approval from the Central Authorities for the Office to exercise law-enforcement and judicial jurisdiction, with the relevant procedures under the Criminal Procedure Law of the People’s Republic of China applying. The subsidiary legislation further regulates how the HKSAR Government must cooperate with the Office for Safeguarding National Security and the corresponding criminal liabilities.⁵⁶

^{25 Part II(1) of the white paper, “Establishment of the Special Administrative Region System in Hong Kong.”
26 The preamble of the Constitution states that the people of all ethnic groups in China are guided, under the leadership of the Communist Party of China, by Marxism-Leninism, Mao Zedong Thought, Deng Xiaoping Theory, and the important thought of the “Three Represents”; the 2018 constitutional amendments further added the “Scientific Outlook on Development” and Xi Jinping Thought on Socialism with Chinese Characteristics for a New Era.
27 Part V(1) to (3) of the white paper.
28 Namely, the offense later established under the National Security Law of “collusion with a foreign country or with external elements to endanger national security.”
29 Chinese University of Hong Kong Centre for Communication and Public Opinion Survey, “Hong Kong Public Opinion and Political Development”: 20.1% of respondents stated that they had personally gone to the protest sites to support the Occupy movement (published December 18, 2014). Based on population weighting by the Centre, approximately 1.2 million people across Hong Kong were estimated to have personally participated in support of the Occupy movement (Apple Daily, December 19, 2014).
30 BBC News Chinese, background information: “Timeline of Hong Kong Political Reform”, June 17, 2015.
31 The Legislative Council rejected the proposal by a large margin, with 28 votes against and eight votes in favor (Apple Daily, June 18, 2015).
32 2016 Legislative Council Election Turnout.
33 For example, the nomination of candidate Edward Leung Tin-kei was invalidated partly because of statements he had repeatedly made in newspapers concerning Hong Kong independence and because he had not signed the confirmation form provided by the electoral authorities confirming his understanding of the requirement to uphold the Basic Law. Although Leung sought judicial review of the requirement to sign the confirmation form and related matters (equivalent in Taiwan to administrative litigation challenging an administrative disposition), the court refused his request for an urgent hearing. Even after Leung changed his position and stated that he no longer supported Hong Kong independence, the returning officer was not satisfied that he had genuinely changed his position and, after obtaining legal advice, declared his nomination invalid.
34 According to the judge’s reasons, even without the NPCSC Interpretation, the two legislators had “declined or neglected” to take their oaths under the HKSAR’s oath-taking legislation and therefore lost their qualifications as legislators. (HCMP 2819/2016, Nov. 15, 2016)
35 CACV 224/2016, Nov. 30, 2016.
36 Relying on a 1999 Court of Final Appeal case, the Court of Appeal held that the Interpretation had effect from July 1, 1997 (para. 53, CACV 224/2016, Jan. 16, 2017). Court of Appeal case no. CACV 224/2016, judgment dated Jan. 16, 2017.
37 2019 District Council Election Turnout.
38 The Basic Law and the National Security Law are special laws specifically enacted for the HKSAR and differ from the national laws of general application listed in Annex III to the former.
39 Examples include the presumption of innocence, freedom of the person from arbitrary restriction, the principle that persons should not be punished before trial, and judicial independence free from executive interference. Although China is a signatory to the ICCPR, it has not enacted domestic legislation ratifying the ICCPR for implementation.
40 “610,000 Vote as Traditional Pan-Democrats Face Pressure; Benny Tai: Hong Kong People Create Another Miracle; Helena Wong: Will Respect Primary Agreement,” Ming Pao, July 13, 2020.
41 “HKSAR Government Supports Returning Officers’ Decisions to Invalidate Nominations of Certain Nominees for Legislative Council General Election”, HKSAR Government Press Release, July 30, 2020.
42 “HKSAR Government Announces Disqualification of Legislative Council Members Pursuant to NPC Decision on Qualifications of HKSAR Legislative Council Members”, HKSAR Government Press Release, Nov. 11, 2020.
43 “Hong Kong Pro-Democracy Legislators Resign En Masse: Hong Kong and Macao Affairs Office Condemns ‘Stubborn Confrontation’; UK Summons Chinese Ambassador and Accuses Beijing of Breaching the Joint Declaration”, BBC News Chinese, Nov. 12, 2020.
44 “Hong Kong National Security Law: Police Deploy More Than 1,000 Officers to Arrest More Than 50 People Involved in Pro-Democracy Primaries”, BBC News Chinese, Jan. 6, 2021.
45 “Hong Kong National Security Law’s Largest Mass Arrest: 47 Defendants Appear in Court for First Time and Are Denied Bail”, BBC News Chinese, Mar. 2, 2021.
46 “Hong Kong Election Committee Election: New Committee Formed, Only One of 1,488 Members Is Not Pro-Establishment”, BBC News Chinese, Sept. 20, 2021.
47 “Hong Kong Legislative Council Election: Pro-Beijing Camp Sweeps Polls as Turnout Falls to Record Low of About 30%”, BBC News Chinese, Dec. 20, 2021.
48 “Hong Kong Chief Executive Election: Sole Candidate John Lee Elected as New Chief Executive”, BBC News Chinese, May 8, 2022.
49 “Explainer on Hong Kong Basic Law Article 23 Legislation: What Does It Contain? How Does It Differ From the National Security Law? What Controversies Has It Raised?”, Business Weekly, Mar. 21, 2024.
50 Former founder of Hong Kong’s Apple Daily, charged under the National Security Law with “collusion with a foreign country or with external elements to endanger national security.” The trial was still ongoing at the time of writing.
51 “Jimmy Lai Case: The Controversy Surrounding Another NPC Interpretation for Hong Kong”, BBC News Chinese, Dec. 6, 2022.
52 “Jimmy Lai’s Application for Leave for Judicial Review Dismissed After Alleging the National Security Committee Exceeded Its Powers in Recommending Refusal of Tim Owen’s Visa,” The Witness, May 19, 2023.
53 “Hong Kong 47: 14 Convicted of ‘Conspiracy to Subvert,’ Two Acquitted as Department of Justice Plans Appeal”, BBC News Chinese, May 30, 2024.
54 “Hong Kong 47: Benny Tai Sentenced to 10 Years; Starting Point of Seven Years’ Imprisonment for Active Participants”, BBC News Chinese, Nov. 19, 2024.
55 “Hong Kong Rapidly Enacts Subsidiary Legislation Under Basic Law Article 23; South China Morning Post: Beijing Set Deadline”, Central News Agency, May 17, 2025, United Daily News.
56 “National Security Law Subsidiary Legislation | Enacted Before Scrutiny; If a Case Is Directly Exercised by Mainland Authorities, HKSAR Civil Servants Must Provide All Assistance”, The Collective, May 12, 2025.}

IV. Conclusion

Although the text of the Basic Law itself has not substantially changed, through additions to and deletions from its three annexes by the NPC and NPCSC, the Chinese Central Government has been able to use the appointment of the Chief Executive (executive), the electoral mechanism of the Legislative Council (legislative), and direct national legislation for the HKSAR that binds its courts (judicial) to fundamentally transform Hong Kong’s previous system of separation of powers, which had resembled Western systems. The common law system inherited from British rule has been subordinated to Chinese law, creating an “executive-led”⁵⁷ model in which all three branches of power are controlled by the Central Government. Freedom, democracy, human rights, and the rule of law in the HKSAR have undergone enormous changes. Its institutional system has moved increasingly closer to China’s socialist system, while the protections originally contained in the Joint Declaration and the two Covenants have become increasingly insubstantial. The United Nations Human Rights Committee has likewise expressed concern that the National Security Law takes precedence over other local HKSAR laws and overrides fundamental rights and freedoms protected by the ICCPR. It also expressed concern over the failure to take measures to ensure that NPCSC interpretations of the Basic Law fully comply with the ICCPR and called for the National Security Law to cease to be applied in the HKSAR.⁵⁸ The HKSAR Government did not comply and subsequently enacted the Safeguarding National Security Ordinance and its subsidiary legislation at great speed. The experience of the past two decades demonstrates that the “rule of law” has become a beautiful misunderstanding. Both “governance through the rule of law” (rule of law) and “governance according to law” (rule by law) speak of “law,” but in Chinese legal thought, “the leadership of the Party is the soul of our country’s socialist rule of law and the greatest distinction between our rule of law and the rule of law of Western capitalist countries.”

It is much like being seated in a luxury hotel restaurant and presented with an impressive, dazzling menu: one should not forget to look at the small print at the bottom—“subject to kitchen availability.”

^{57 “Focusing on Substantive Powers — The Executive-Led System”, Teresa Cheng (former Secretary for Justice), Sing Tao Daily, Sept. 9, 2020.
58 These concerns include that the National Security Law does not define criminal conduct with sufficient clarity, thereby undermining the principle of legal certainty, and that transferring national-security cases to organs of the Central People’s Government for adjudication cannot ensure fulfillment of the HKSAR’s obligations under the Covenant. United Nations Human Rights Committee, Concluding Observations on the Fourth Periodic Report of Hong Kong, China under the International Covenant on Civil and Political Rights, Nov. 11, 2022.}