The draft Article 169 has a first paragraph which is identical with the present 158(1). Properly translated, it reads: 'The power of interpretation of this law belongs to the Standing Committee of the National People's Congress.' Then 169(2) and (3) followed: 'When the Standing Committee of the NPC makes an interpretation of a provision of this law, the courts of the HKSAR in applying that provision, shall follow the interpretation. However, judgments previously rendered shall not be affected.

'The courts of the HKSAR may interpret the provisions of this law in adjudicating cases before them. If a case involves an interpretation of the provisions of this law concerning defence, foreign affairs and other affairs which are the responsibility of the Central People's Government, the courts of the Region, before making their final judgment of the case, shall seek an interpretation of the relevant provisions from the NPCSC.' Under the language of this discarded draft, the exercise of the power of interpretation of the Standing Committee is unrestricted. It can do so at any time, and whenever it does so, the interpretation must be followed by Hong Kong courts. Further, whenever the Hong Kong courts come upon a provision which falls within the responsibility of the Central People's Government (CPG) or the SAR's relationship with the CPG, it must seek an interpretation by the Standing Committee.

The changes are significant. First, the present 158(2) contains an express authorisation: the NPC which promulgates the Basic Law, requires its Standing Committee to authorise Hong Kong courts to interpret 'on their own' provisions within Hong Kong's autonomy.

Secondly, the exercise of the power of interpretation by the Standing Committee is put within the framework of referral by the CFA in 158(3). Moreover, an extra, 'need to', condition is inserted. The result is that the CFA will refer only where a provision outside the SAR's autonomy needs to be interpreted, and the interpretation will affect the judgment. This referral mechanism is a pre-judgment referral, not for a re-interpretation after the CFA has decided that no referral is required for the adjudication of that case.

That this is the intended effect is supported in a textbook on the Basic Law of which Professor Xiao Weiyun was chief editor and one of the writers, published in 1990 - soon after the promulgation of the Basic Law, and long before any suggestion of the present CFA crisis.

The Hong Kong system is carefully analysed and contrasted with the mainland's system. It is pointed out that the court's power of adjudication is inseparable from its power of interpretation under the Hong Kong system.

Separating the two powers, it is acknowledged, would put in doubt the power of final adjudication. The author explains that although it cannot be right that the Standing Committee does not have the power of interpretation, unless Hong Kong's courts have the power of final interpretation, they cannot enjoy the power of final adjudication. If Hong Kong courts cannot interpret, then they will become, in effect, similar to regional courts on the mainland, and that means Hong Kong's existing judicial system will be changed.

As explained in Professor Xiao's book, Article 158 is meant to be the solution. As promulgated, it is expressly stated that the power of interpretation belongs to the Standing Committee. Then, by authorisation, the Hong Kong courts will have the power to interpret all provisions within Hong Kong's autonomy without interference. The power of final adjudication of Hong Kong courts is respected. There is only a mechanism for pre-judgment referral. The book states: 'There is no provision for the NPC Standing Committee, upon discovery after the event that a Hong Kong court's interpretation was incorrect, to invalidate it or to order a retrial.' Some mainland legal scholars consider that the exercise of the power of interpretation by the Standing Committee was wrong also from the viewpoint of the Chinese constitution law. The Standing Committee's reference to its power under Article 67(4) of the Chinese constitution is inappropriate. Once a Basic Law is promulgated, the Standing Committee must only exercise its power under the provisions of the Basic Law. The appropriate understanding of 'interpretation' in Article 158 must be its common law meaning - that is, construing the meaning and legal effect of a provision as it stands. The word should not be given the meaning of an 'interpretation' under the Chinese constitution, which can refer to either a clarification of the law as it stands, or supplemental legislation. This is particularly clear from the 1981 resolution of the Standing Committee, 'concerning the strengthening the task of interpreting the law.' It may be the Standing Committee of the NPC, a legislative body, which interprets the Basic Law, but even then, the act of interpretation authorised is limited to giving the true meaning of the law. The power cannot be exercised to enact supplemental legislation.

What the Standing Committee appears to have done, as Professor Albert Chen stated in a forum organised by the Foreign Correspondence Club on June 28, was unequivocally create supplemental legislation. If so, the Standing Committee was exercising a power under a provision of the Chinese Constitution which should have no application in the Hong Kong SAR.

This is not quibbling, or making a political statement. This has legal implications. Under the common law, an interpretation of the court gives the true meaning which the law has always had. Whereas an amendment by the legislature takes effect prospectively.

By shifting the meaning of 'interpretation' under Article 158 to the 'legislative interpretation' of the mainland constitution, the SAR Government is creating an illusion that the Standing Committee's 'interpretation' - which is supplemental legislation - nevertheless takes effect retrospectively. This will affect rights directly if not pointed out.

The 'interpretation' is all the more clearly supplemental legislation if the Standing Committee is taken to have not only 'interpreted' Articles 22(4) and 24(2)(3) but also, as if by a side wind, incorporated the whole of the Preparatory Committee's 'views' on all the categories of Article 24(2). Indeed, it would be a major exercise of supplemental legislation because of the very wide scope and comprehensive details contained in the 'views' on the acquisition and loss of the right of abode.

Of course, one cannot stop at suggesting that the Standing Committee's 'interpretation' is wrong. The 'interpretation' is already being applied. Moreover, it is bound to feature in one or more of the right-of-abode cases to go before the various levels of courts. One must try to explore such application.

For example, the Government is relying on the 'interpretation' to restore parts of the Immigration Ordinance struck off by the CFA. Numerous people ruled by the CFA to qualify for right of abode are now regarded by the Government not to have the right. Linking the Certification of Entitlement to the one-way permit which the CFA has ruled unconstitutional is being reinstated. The Government assures the public it has proper and sufficient basis in law to do so, but is the Government right this time? Professor Albert Chen said at the Justice forum that the Standing Committee had been deliberately ambiguous in certain areas in the 'interpretation' so as to leave room for interpretation by the Hong Kong courts. For example, only the first sentence of Article 22(4) is interpreted. The rest, including the part about the quota system, has not been subject to the Standing Committee's interpretation. His view is that the Government will have difficulty about the legal basis of relinking.

He also suggested that there is an ambiguity about whether Article 24(2)(3) is reinterpreted on the basis that the provision is really outside Hong Kong's autonomy in spite of SAR Government's former position before the CFA, or on the basis that it is within the SAR's autonomy, but that the Standing Committee can reinterpret it anyway. The 'interpretation' as gazetted comprises four paragraphs: a preamble, Clause 1 reinterpreting Article 22(4), Clause 2 reinterpreting Article 24(2)(3), and a concluding paragraph apparently on the effective date and application of the 'interpretation'.

One legal view, including that of the Bar Association, is that only Clauses 1 and 2, which interpret provisions of the Basic Law, have legal effect. In going on to say how or when the 'interpretation' will take effect, the Standing Committee is no longer interpreting any provision, and therefore, goes outside Article 158. It is for the Hong Kong courts to decide how the 'interpretation' applies to the SAR by interpreting the 'interpretation'.

This is directly relevant to the question of whether the Government can rely on using January 29, 1999, as the 'cut off' date to process applications for verification, as it is now doing. On general principles it is certainly wrong.

Let us consider an example of someone who was born on the mainland before either of his parents qualified for right of abode and, before January 29, believes himself not to qualify because the Immigration Ordinance says he does not. It would not be unnatural for him not to make a claim before the CFA decision. Nor would his claim be considered if he did. However, after the CFA decision, his position has of course changed, and so now, he makes a claim. How can it be fair or just that his claim would not be considered by reason of its being made after the 'cut off' date? Yet another serious area of ambiguity is the status and contents of the 'views' of the Preparatory Committee. The courts had been unanimous in rejecting this as a document which they can properly take into consideration in construing the Basic Law. Now, in Clause 2 of the 'interpretation', the Standing Committee says: 'The legislative intent as stated in this interpretation, together with the legislative intent of all other categories of Article 24(2) of the Basic Law . . . have been reflected' in the PC's 'views'. Has the Standing Committee thereby conferred legal authority on it retrospectively in this way? Can it do so? So far, even Professor Chen and the Government's legal officers seem to be doubtful. Before a Legco panel meeting, Professor Chen gave as his view that the legal authority of the 'views' was uncertain before the 'interpretation'. After the 'interpretation', it has great legal authority but is still short of having the force of law. Thus, he was dubious of a Government amendment to Schedule 1 (categories of people with right of abode) of the Immigration Ordinance, because it does not conform to the 'views'.

This question has to be addressed. Otherwise the SAR will not only have a new source of law through Standing Committee interpretation or reinterpretation, but documents as yet unsuspected may suddenly acquire legal authority retrospectively through incorporation, and this cannot be the purpose of the Basic Law.

Anyone who has studied the Basic Law closely will not fail to notice how the autonomy of the SAR and the integrity and separateness of its legal system are safeguarded. National laws, even the mainland constitution, do not automatically apply to Hong Kong. Those which do have to be either implemented through local legislation or by incorporation in Annex III. If the analysis of the earlier part of this column is correct, an interpretation of the Standing Committee arises from SAR court referral and is applied through SAR court decision.

The test process is due to begin. In fact, it would be surprising if those affected by the relinking do not bring proceedings to challenge it in court. It will be deja vu in the CFA. This time round, what is the outcome going to be? It seems the SAR's legal system has swallowed (or is being induced to swallow) an elephant. Is it going to digest this elephant - and if so, how; or is it going to die of indigestion?