Kara Sears
Basic Law is a term used in some countries instead of constitution. It is a codified constitution or a law designed to have the effect of a constitution in countries with uncodified constitutions. The Basic Laws of Israel, Saudi Arabia, and the Basic Law of the Hong Kong Special Administrative Region of the People's Republic of China are examples of Basic Laws that serve as constitutional documents. The Basic Law of Germany, initially intended as a temporary solution, has also become the country's definitive constitution. These Basic Laws outline fundamental rights, principles of governance, and the relationship between the central government and the region.
| Characteristics | Values |
|---|---|
| Basic Law | Codified constitution or a law designed to have the effect of a constitution |
| Countries/regions that use the term "Basic Law" | Germany, Hong Kong, Macau, Israel, Saudi Arabia, Philippines |
| Reasons for using the term "Basic Law" instead of "Constitution" | Religious reasons, intended as a temporary measure, to avoid the term being taken as the "highest law" |
| Basic Law of Germany | Adopted in 1949, initially intended as a temporary solution, but retained as the definitive constitution of reunified Germany in 1990 |
| Basic Law of Hong Kong | Adopted in 1990, came into effect in 1997, guarantees Hong Kong a high degree of autonomy under Chinese rule, with exceptions in foreign affairs and defense |
| Basic Law of Israel | Fourteen quasi-constitutional laws, originally intended to be draft chapters of a future Israeli constitution, which has been indefinitely postponed since 1950 |
| Basic Law of Saudi Arabia | Promulgated in 1992, consists of 9 chapters and 83 articles, constitutional principles are explicitly tied to Islamic theology and Sharia law |
| Basic Law of the Philippines | Bangsamoro Organic Law, also known as the Bangsamoro Basic Law, is the basic law of the Bangsomoro Autonomous Region in Muslim Mindanao |
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What You'll Learn
Basic Law as a flexible constitution
A basic law is either a codified constitution or, in countries with uncodified constitutions, a law designed to have the effect of a constitution. The term "basic law" is used in some places as an alternative to "constitution" and may be intended as a temporary but necessary measure until the formal enactment of a constitution.
In the case of Germany, the Basic Law was originally intended to be a provisional text until reunification. However, when Germany reunified in 1990, no new constitution was adopted, and the Basic Law became the German constitution. Despite several changes and amendments, it has remained valid and is well-respected nationally and internationally. The German Basic Law is modern, adaptable, and resilient, making it a flexible yet stable constitution.
Hong Kong, as a Special Administrative Region of China, also has the Basic Law as its constitutional document. The Hong Kong Basic Law was enacted under the Constitution of China and came into effect in 1997 after the handover of Hong Kong. It guarantees Hong Kong a high degree of autonomy under Chinese rule, with exceptions in areas such as foreign affairs and defence. The Basic Law has been described as a flexible constitution, allowing for interpretation to meet the needs of economic integration.
Israel's Basic Laws are fourteen quasi-constitutional laws that were originally intended to be draft chapters of a future constitution. These laws have been promulgated without a separate preamble, and while they outline constitutional principles, they are tied to the sovereign authority of the Israeli state.
Thus, Basic Law can be considered a flexible constitution in various contexts, providing a foundation for democratic states and allowing for interpretation and amendment to meet changing needs and circumstances.
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Hong Kong's Basic Law
Basic Law is either a codified constitution or, in countries with uncodified constitutions, a law designed to have the effect of a constitution. The term is sometimes used to avoid the implication that it is "the highest law", as constitutions are.
The Basic Law guarantees Hong Kong a high degree of autonomy under Chinese rule, with the exception of foreign affairs and defence, which remain the purview of the Central People's Government. It also protects the right to private ownership of property. However, in 2014, Beijing released a policy report asserting its authority over Hong Kong, stating that the interests of China should prevail over Hong Kong's constitutional autonomy. This caused conflict and criticism from those in Hong Kong who felt that the Communist leadership was undermining the Basic Law.
The Basic Law is a flexible constitution and can be interpreted for the needs of economic integration. Hong Kong courts may interpret the Basic Law when adjudicating cases, but the National People's Congress has the power of final interpretation.
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Germany's Basic Law
A basic law is either a codified constitution or, in countries with uncodified constitutions, a law designed to have the effect of a constitution. The term "basic law" is used in some places as an alternative to "constitution" and may be intended as a temporary measure until a formal constitution is enacted.
The German Basic Law includes fundamental rights, such as the protection of human dignity and human rights, which are core values protected by the law. These rights are guaranteed in the first section of the law, which consists of Articles 1 to 19. Articles 1 and 20 are further protected by the eternity clause (Ewigkeitsklausel) in Article 79(3), which prohibits any changes or removals to the principles laid down in these articles. The Basic Law also enshrines the principles of democracy, republicanism, social responsibility, federalism, and the rule of law.
The Basic Law provides for a constitutional complaint procedure in cases where a federal or state law is alleged to violate fundamental rights. Article 93, paragraph 1, No. 4a allows for an appeal to the Federal Constitutional Court in such cases. Additionally, the Basic Law stipulates that any future constitution must be "'freely adopted by the German people,'" ensuring that the will of the people is respected.
In summary, Germany's Basic Law serves as the country's constitution, outlining fundamental rights and principles that govern the nation. It was initially intended as a provisional measure but has since been retained as the definitive constitution, demonstrating the dynamic nature of basic laws and their potential to evolve into permanent constitutional frameworks.
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Quasi-constitutional laws in Israel
Basic laws are either codified constitutions or laws designed to have the effect of a constitution in countries with uncodified constitutions. The term "basic law" is sometimes used to avoid it being considered the highest law, as constitutions are. Basic laws are used in places such as Hong Kong, Macau, and Israel.
Israel's Basic Laws are 14 quasi-constitutional laws that act as a de facto constitution. They were originally intended to be draft chapters of a future Israeli constitution, which has been indefinitely postponed since 1950. The laws were promulgated in 1992 and deal with government arrangements and human rights.
The Nation-State Law, which defines Israel as the nation-state of the Jewish people, is a Basic Law with quasi-constitutional status. It has been criticized for allegedly solidifying inequality among citizens and entrenching discrimination against Arab citizens. The Israeli criminal justice system has long been a target for right-wing politicians who allege that the courts are seeking to impose their worldview through judicial activism.
The Israeli Supreme Court president, Aharon Barak, ruled that the Basic Laws should be considered the state's constitution during his tenure (1995-2006). However, there is no clear rule determining the precedence of Basic Laws over regular legislation, and issues are often left to interpretation by the judicial system. Various bodies in Israel have called for the enactment of a formal constitution as a single document, with these calls increasing during the 2023 anti-judicial reform protests.
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Basic Law vs. national law
Basic Law is a term used in some countries as an alternative to the term "constitution". Basic Law is a codified constitution, or in countries with uncodified constitutions, a law designed to have the effect of a constitution. Basic Law is sometimes used to imply that it is a temporary measure, until a formal constitution is enacted.
The Basic Law of Hong Kong, for example, is a national law of China that serves as the organic law for the Hong Kong Special Administrative Region (HKSAR). It was composed to implement Annex I of the 1984 Sino-British Joint Declaration, which laid out the "'one country, two systems' principle. The Basic Law was drafted by a Committee composed of members from both Hong Kong and Mainland China, and it was formally promulgated on 4 April 1990. It came into effect on 1 July 1997, replacing Hong Kong's colonial constitution.
The Basic Law of Hong Kong guarantees the region a high degree of autonomy under Chinese rule, with the exception of foreign affairs and defence, which remain under the purview of the Central People's Government. It also enshrines the concepts of "Hong Kong People administering Hong Kong" and prescribes the various systems to be practised in the HKSAR. The Basic Law consists of nine chapters, 160 articles, and three annexes.
In contrast, national law refers to the laws enacted and enforced by a country's central government. In the context of Hong Kong, national laws are not enforced in the HKSAR, except for those listed in Annex III of the Basic Law. These laws are related to foreign affairs, national defence, or matters outside the autonomy of the HKSAR.
The Basic Law of a country, therefore, serves as the foundational framework that outlines the relationship between the central government and its special administrative regions, while also guaranteeing certain rights and autonomy to those regions. National laws, on the other hand, are the specific enactments that govern various aspects of the country, which may or may not apply to the special administrative regions depending on the provisions outlined in the Basic Law.
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Frequently asked questions
A basic law is either a codified constitution or, in countries with uncodified constitutions, a law designed to have the effect of a constitution.
The Basic Law is the constitution of the Federal Republic of Germany. It was adopted in 1949 and contains fundamental rights, which protect the personal freedoms of the individual.
The Basic Law of Hong Kong is a national law of China that serves as the organic law for the Hong Kong Special Administrative Region (HKSAR). It was enacted under the Constitution of China and came into effect on 1 July 1997. The Basic Law lays out the "'one country, two systems' principle, guaranteeing Hong Kong a high degree of autonomy under Chinese rule.
The term "basic law" is sometimes used as an alternative to "constitution" and may be intended as a temporary measure until the formal enactment of a constitution. Basic laws can be used to avoid the implication that a document is "the highest law", as constitutions are often considered to be.
