Despite strong public opposition, the Provisional Legislative Council in Hong Kong passed a controversial government bill on 7 April that allows the Chinese central authorities and their subordinate organs be exempted from laws of the Hong Kong Special Administrative Region (SAR).

Legal experts, pro-democracy and human rights activists and academics challenge the government basis for justifying the transfer of privileges of the British Crown to the Chinese State under the Adaptation of Laws (Interpretative Provisions) Bill and criticise the haste introduction of the bill to the interim body.

There is also fear that the autonomy of Hong Kong under the principle of "one country, two systems" will be threatened as the law contravenes the Basic Law, which stipulates that State organs have to comply with SAR laws.

Under the controversial law, the previous privileges enjoyed by the Crown will now be transferred to Chinese bodies that qualify the definition of "State."

The Hong Kong Bar Association criticised that the government’s definition of the State was "highly controversial" and "gives rise to uncertainty."

"It is fundamental to the rule of law and the concept of ‘one country, two systems’ that State organs in Hong Kong should comply with the Hong Kong SAR laws save in the areas of foreign affairs and defence," the Bar Association said in a statement.

One consequence would be that Xinhua, Beijing’s watchdog in Hong Kong, would be exempt from the Personal Data (Privacy) Ordinance. The news agency’s failure to comply with that ordinance has already caused considerable controversy in the SAR. Earlier, Xinhua failed to answer a request of ousted legislator Emily Lau Wai-hing on her files under the Personal Data (Privacy) Ordinance. Ms Lau, a democrat, has taken legal action against Xinhua for refusing her access to the files on her, which she believed the agency held. The court hearing of the case is scheduled on 2 June.

A prominent constitutional expert, Professor Yash Ghai, meanwhile, points out that the reasoning of the amendment based on that the British government enjoyed a similiar privilege before the transfer of sovereignty is unjustified. He says the government has operated on the mistaken assumption that Hong Kong is a colony of China.

"The problem is the accommodation of the central government in the constitutional and legal system of the SAR. It arises in the adaptation of pre-transfer laws to Hong Kong’s new status. It has been highlighted recently by allegations that mainland institutions enjoy a privileged position under Hong Kong’s legal system," the professor said in a commentary to the Sunday Morning Post on 5 April.

Prof. Ghai writes: "The key themes underlying the Basic Law do not help in the search for definitive guidelines. On the one hand there is the emphasis on sovereignty and one country, and on the other of continuity, prosperity and stability. Yet another theme is regional autonomy.

"The themes of Chinese sovereignty and continuity have been advanced as tests of legal validity or political desirability. This approach was most clearly articulated in the Court of Appeal’s decision in the so-called Ma case concerning the legality of the Provisional Legislative Council (PLC).

"In this ruling, the court upheld the validity of the Preparatory Committee’s decision to establish the PLC, and denied itself the competence to question acts of the central authorities. Since, in the view of the Court of Appeal, the previous courts could not question Britain’s acts, they could not now question China’s.

"The same line of reasoning was apparent in the advice of some members of the Preparatory Committee that all previous laws should be adapted simply by replacing Britain with China.

"It is also clear in the rebuttal of criticism of the undemocratic nature of the Chief Executive’s appointment that he is more democratically appointed than was the governor. In this approach Hong Kong’s status as a colony does not change, merely its masters.

"The approach is incompatible with the Basic Law. The Basic Law makes Hong Kong an integral part of China. It has been delegated a high degree of autonomy and its economic, political and legal systems different from those of the mainland in history and philosophy - are preserved.

"There is limited scope for the application of mainland laws in Hong Kong. There are formal procedures for consultations between the central government and the SAR and for the interpretation of the Basic Law, particularly regarding relations between the SAR and the mainland. Even the National People’s Congress [the Chinese legislature] may not amend the Basic Law except after following certain procedures, and cannot amend key parts at all.

"These provisions may be contrasted with the rules that governed the relationship between Britain and Hong Kong. The British Parliament could make any laws for Hong Kong and could override the Letters Patent, which served as the colony’s constitution.

"The governor was appointed by Britain without having to consult local institutions or persons. He could be directed on the discharge of any of his functions by the British government. There was no legally secure provision for the autonomy of Hong Kong.

"The provisions of the Basic Law suggest that the proper way to analyse the SAR’s relationship with the central authorities is not by analogies with colonialism, but through an analysis of the constitutional law of China, an important element of which is the Basic Law itself.

"There are some areas where continuity provides a useful guide, as in the principles and safeguards of the legal system, the market economy and fiscal and tax policies. In other areas, change and adaptation are necessary in respect of many provisions which are clearly inconsistent with the colonial model.

"One of these is the gradual democratisation of Hong Kong’s political system, including the power of the legislature to impeach the chief executive. The other is the relationship between the SAR and the mainland, where analogies with Hong Kong’s relationship with its colonial master are not only inappropriate but strike at the root of Hong, Kong’s constitutional system.

"The Basic Law provides relatively reliable guidelines for dealing with the controversy about the exemption from SAR laws of bodies like Xinhua. Nothing in the Basic Law requires the exemption of the SAR or national government from the application of laws.

"On the contrary, the Basic Law is concerned to minimise the role of institutions of the central or provincial governments in the SAR.

"They are not to interfere in the internal affairs of the SAR; they need the SAR’s permission before they can be established here, and they have to abide by the laws of the SAR (Article 22). The SAR government itself is bound by the law (Article 64).

"The origins of the rule that the government is not bound by the law lie in feudalism, when the monarch was the government. It has no place in a modern State which is committed to the rule of law. Instead, the rule should be all laws bind the government (which needs to be defined narrowly) unless it is expressly and necessarily exempted from it."