Skip to main content

Article 158(3) of the Hong Kong Basic Law and the Preliminary Reference Procedure of the European Union

Jiang, Patrick; Villalta Puig, Gonzalo

Authors

Patrick Jiang

Professor Gonzalo Villalta Puig G.Villalta.Puig@hull.ac.uk
Professor of Law and The University of Hull Chair in the Law of Economic Integration/ Head of School



Abstract

This Article analyses the preliminary reference procedure under Article 158(3) of the Hong Kong Basic Law and its transplantation from Article 267 of the Treaty on the Functioning of the European Union. Preliminary reference procedures require courts of final
appeal to refer certain questions of law to a higher legal authority for determination before they can give judgement. This Article argues that this area of Hong Kong constitutional law is underdeveloped, due in large part to the unwillingness of the Hong Kong judiciary to respect the interests of the national legislature. An examination of the preliminary reference procedure, as practiced in the E.U., makes clear that the constitutional order in Hong Kong must do more to
balance regional and national interests. To that end, this Article recommends several reforms: 1) to eliminate the existing jurisprudence regarding Article 158(3) of the Basic Law; 2) to adopt E.U.-style doctrines of judicial economy, including irrelevant question, acte éclairé, and acte clair; 3) to adopt a doctrine of sincere cooperation, so as to increase the quality and quantity of judicial references; and 4) to modernize the concept of Hong Kong law to a hybrid system of common law and Chinese law.

Journal Article Type Article
Publication Date Aug 1, 2018
Journal Chicago Journal of International Law
Electronic ISSN 1529-0816
Publisher University of Chicago Law School
Peer Reviewed Peer Reviewed
Volume 19
Issue 1
Article Number 1
Pages 1-29
Series Title Chicago Journal of International Law
Series ISSN 1529-0816
APA6 Citation Jiang, P., & Villalta Puig, G. (2018). Article 158(3) of the Hong Kong Basic Law and the Preliminary Reference Procedure of the European Union. Chicago journal of international law, 19(1), 1-29
Publisher URL https://chicagounbound.uchicago.edu/cjil/vol19/iss1/1/

Files





You might also like



Downloadable Citations

;