HOUSE OF LORDS
central government after China assumes authority, since, as a sovereign state, the PRC is free to do whatever it chooses to do. Although the joint declaration might be considered a type of formal agreement, it contains no mechanism for settling disputes that might arise, and since the PRC would never agree to have Hong Kong related matters adjudicated by the World Court, there is in fact no sanction should that country decide to contravene the Declaration.
The relation between SAR legislation and that of the central government is also a delicate matter. Local laws formulated by an SAR can be invalidated by the Standing Committee of the NPC if they are found to conflict with the laws of the central government. According to paragraph 4, Article 67, of the Constitution, the Standing Committee has the power and function 'to interpret statutes, and paragraph 8 of the same article says that it has the power:
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'to annul those local regulations or decisions of the organs of state power of provinces, autonomous regions and municipalities directly under the Central government that contravene the constitution, the statutes or the administrative rules and regulations.. . . . . Similarly the State Council, according to Article 89 of the Constitution, has the power 'to alter or annul inappropriate decisions and orders issued by local organs of state administrative structures at different levels.' Morover, a chart of the administrative structure of the government recently published by the PRC placed SARS on the same level as provinces, autonomous regions, and special municipalities with the status of provinces. This shows that an SAR is considered to be a unit of local government. And since China is a centralized and unitary state rather than a federation, local government organs have very little power.'
I note that the HK courts will not be relying on the PRC criminal code after 1997 because HK will retain its seperate legal system. My understanding is that the framework of that system will be the Basic Law, the laws previously in force in Hong Kong and laws enacted by the HK SAR legislature. I refer to a speech by Attorney General of Hong Kong, Mr Michael Thomas QC., at The School for Oriental and African Studies on 29 May 1986 when he stated:
'The Terms of the Basic Law will be the law of PRC enacted under provisions of the Chinese Constitution and will derive their authority and legitimacy from the law of the new sovereign power.
The laws previously enforced shall be maintained save for any that contravene the Basic Law and subject to any amendment by the HK SAR legislature,'