4.38.
4.39.
certain circumstances seek an interpretation of the relevant provisions from the Standing Committee of the National People's Congress." This raises the following issue: The latter (b) is an addition to the former (a) and seems therefore to raise the question of whether there is a separate breach of the Joint Declaration in this regard, at least if the English words quoted at the head of paragraph 4.34 are to have any meaning, for the Joint Declaration does not provide for any area of law beyond foreign and defence affairs to be excluded from the full and final jurisdiction of the Hong Kong courts, certainly not matters "concerning the relationship between the central authority and the Region". Whether this is reasonable or otherwise in principle is not my point. My point is whether it goes against the wording of the Joint Declaration. And the practical problem is simply stated too: The NPC will have untramelled power to say that any particular matter involves the relationship in question. There are subsidiary issues arising as well: How would the CPG ensure transfer of the case to Beijing? By appearing through counsel in court, or through direct instryst
tion to the judge? Specific rules or conventions would be useful here. I intend to study this issue in greater depth. This is a preliminary note.
82
Legislative Autonomy?
Article 17 of the Basic Law gives the NPC power to return, and thereby to have invalidated, laws enacted by the HKSAR legislature which it considers:
"are not in conformity with the provisions of the [Basic Law]
regarding [a] affairs within the responsibility of the Central Authorities or [b] regarding the relationship between the Central Authorities and the Region".
OMELCO objected to this provision, pointing out that the Joint Declaration provided that:-
"The legislative power of the Hong Kong Special Administration
Region shall be vested in the legislature of the Hong Kong Special Administrative Region. The legislature may on its own authority enact laws in accordance with the provisions of the Basic Law and legal procedures, and report them to the Standing Committee of the National People's Congress for the record. Laws enacted by the legislature which are in accordance with the Basic Law and legal procedures shall be regarded as valid."
I am uncertain whether there is reason here to be concerned. Might it depend on the meaning of the word "or" in article 17? If the "or" is to be read conjunctively, it may follow that the power to return applies to the provisions of the Basic Law concerning both (a) and (b); but if it is to be read disjunctively, it follows that the power to