Speaking to national legislators on the tabling of the Basic Law for approval in 1990, former chairman of the Drafting Committee Ji Pengfei said it was 'a very special exception' for courts in a district to be given the final power of adjudication.
'In light of the fact the social and legal systems in Hong Kong are different from the mainland's, this requirement is necessary [for Hong Kong],' he said.
Mr Ji was explaining that under Article 158 of the Basic Law, the NPC Standing Committee has the power of interpretation. But SAR courts have been given power to interpret the Basic Law when adjudicating cases.
Only when courts are dealing with cases which are the responsibility of the Central Government, or concerning the relationship between the Central Authorities and the SAR - and if such interpretation will affect the judgment in the cases - then the courts should seek a prior interpretation from the NPC Standing Committee through the Court of Final Appeal.
The Standing Committee shall consult the Basic Law Committee before giving an interpretation.
The idea is that restraint is imposed on the Standing Committee in line with the spirit of Article 158, which intends that the Committee will not initiate interpretation of matters within the SAR's jurisdiction even though it has the power to do so.
But now uncertainty about the mechanism, which was one of the most difficult points to draft, has surfaced less than two years after its implementation. Not only that, but this mechanism, which has been crucial in the maintenance of the rule of law and autonomy and was understood to be necessary by mainland experts, faces its most severe challenge - and not from the central authorities, but the Government.
