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

Jiang, Patrick; Villalta Puig, Gonzalo

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.

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

• Journal Article Type: Article
• Acceptance Date: Jun 1, 2018
• Online Publication Date: Aug 1, 2018
• Publication Date: Aug 1, 2018
• Deposit Date: Aug 28, 2018
• Publicly Available Date: Aug 28, 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
• Public URL: https://hull-repository.worktribe.com/output/1002005
• Publisher URL: https://chicagounbound.uchicago.edu/cjil/vol19/iss1/1/
• Contract Date: Aug 28, 2018