Background Briefing

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A Question of Interpretation

After months of sharp-edged public comments about Beijing’s role in any decision about political reform in Hong Kong, the central government announced on March 26 that it would issue an interpretation of the Basic Law under Article 158 of the Basic Law.41

The announcement was given without warning, and the timetable given was less than two weeks. Despite repeated statements over several years that political reform would be handled by Hong Kong, the central government apparently did not even inform the Chief Executive of its intention to issue an interpretation until a day before the public announcement.42

On April 6, the central government issued its interpretation. Some aspects of the interpretation were uncontroversial: the Standing Committee reflected the generally accepted view when it ruled, for example, that the reference to 2007 in the Basic Law meant that the rules governing the elections scheduled for 2007 and 2008 could be amended.

But the central element of the interpretation was deeply problematic. In its interpretation, the central government latched on to the phrase “if there is a need” in Annex 1, Section 7 and Annex 2, Section 3, and declared that Beijing was the arbiter of whether any such “need” existed.43 In essence, the interpretation by the Standing Committee added a new procedural requirement in order to democratize Hong Kong's electoral system. Under the interpretation, the Legislative Council is barred from acting on election reform until after Beijing has given its blessing. 


Although the text of the Basic Law requires only that any changes made to Hong Kong’s election law for the Legislative Council be “registered” with Beijing, the interpretation also states that Beijing has the power to approve – and possibly formally reject – any changes. In other words, under the interpretation, Beijing has the first and last word on the matter of electoral reform.44

Just weeks later, Beijing ended any possibility that it would use the increased powers that it accorded to itself to speed the pace of democratization. On April 26, the Standing Committee of the NPC issued a Decision flatly rejecting the idea of direct elections by universal suffrage for the Chief Executive in 2007, or for the entire Legislative Council in 2008. The Decision also forbade any change in the ratio of directly elected Legislative Council seats to functional constituency seats.45 

Beijing’s rejection of reform was admittedly not absolute, however. According to the decision, as long as the absolute ban on universal suffrage is adhered to, “appropriate modifications” of the election rules for 2007 and 2008 would be permitted. Of course, any such change would also be subject to the April 6 interpretation, and thus would have to be pre-approved by Beijing.




[41] Under Article 158, “(t)he power of interpretation of this Law shall be vested in the Standing Committee of the National People's Congress.” But Beijing’s power to interpret the Basic Law under Article 158 is not unlimited. It must exercise its interpretation power in the context of other provisions in the Basic Law, including its obligation to uphold the common law system in Hong Kong, its responsibility to protect human rights in Hong Kong, and the right of Hong Kong to a high degree of autonomy under the Basic Law.  Indeed, Beijing had only had issued an interpretation once before, in 1999, at the request of the Hong Kong government. Many experts believe that Beijing’s Article 158 power exists mainly to resolve disagreements between different branches of the SAR government over the meaning of the Basic Law, but there was no inter-governmental dispute this time.

[42] Foreign Commonwealth Office, “Six-monthly Report on Hong Kong, January-June 2004,” p. 7.

[43] Article III, section 2 reads:

With regard to the method for forming the Legislative Council of the Hong Kong Special Administrative Region and its procedures for voting on bills and motions after 2007, if there is a need to amend the provisions of this Annex, such amendments must be made with the endorsement of a two-thirds majority of all the members of the Council and the consent of the Chief Executive, and they shall be reported to the Standing Committee of the National People's Congress for the record.

[44] Because the interpretation increases Beijing's power by adding procedural requirements not found in the Basic Law, it is better viewed as an amendment to the Basic Law. Under Article 159 of the Basic Law, all amendments must be approved by a 2/3 vote of the Hong Kong LegCo, and no amendment may “contravene the established basic policies of the People's Republic of China regarding Hong Kong,” including those related to human rights.

[45] For more on Hong Kong’s flawed election system, see Section VI below. A detailed description of Hong Kong’s functional constituency system can be found in Simon N.M. Young and Anthony Law, “A Critical Introduction to Hong Kong’s Functional Constituencies,” Civic Exchange, July 2004.


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