It is on that basis that I turn to Mr. Denis Chang Q.C.'s suggestion that there might be conventions regularising the relationship between,
#45 the centre and the region. He argues for "rules of self-restraint".
And he writes this: -
(a) "The first rule of self-restraint [could be] that the Standing
Committee will refrain from exercising any powers of
interpretation of the Basic Law in matters which pertain purely to the internal affairs of the SAR.'
This might already be the case under the Basic Law. It is not the case under the PRC constitution. 4Thus, I believe that the principle does
need to be further examined.
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(b) "The second rule [could be] that in respect of matters outside the scope of the high degree of autonomy (defence and foreign affairs as distinguished from those external affairs which are delegated to the SAR) the Standing Committee will refrain from exercising its powers of interpretation except when its jurisdiction has been invoked by specified organs or through specified channels and after reference to an organ of mediation such as the Committee for the Basic Law.
Procedures will be important, for predictability is the key.
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(c) "The third rule [could be] that disputes or difficulties over
classification of issues will be referred to the Committee for the Basic Law whose advice will by convention be accepted by the Standing Committee."
This is a particularly important idea.
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(d) "A separate set of rules in relation to the Standing Committee's
power of disallowance of SAR laws can be constitutionalised. Because the Joint Declaration merely stipulates that SAR laws should be reported to the Standing Committee for the record (no mention being made of any power of disallowance), the simplest rule is that the Standing Committee [would] refrain from exercising any disallowance powers it may have under the Chinese constitution. It [might] in any event not exercise any power of disallowance of any law that pertains purely to the internal affairs of the SAR. As for laws which are alleged to trespass on matters reserved to the central authorities a procedure [could] be devised whereby reference of the issue can be made by the Standing Committee,in the first instance to the Court of Final Appeal of the SAR. The Standing Committee should, pending the determination of the reference, refrain from exercising its power of review of the constitutionality or legality of the law in question. This [could be] in addition to the fundamental principle, already incorporated in the Basic Law, that no decision by the Standing Committee shall have retrospective effect."