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

By Jiang, Patrick; Puig, Gonzalo Villalta | Chicago Journal of International Law, Summer 2018 | Go to article overview

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


Jiang, Patrick, Puig, Gonzalo Villalta, Chicago Journal of International Law


Table of Contents

I. Introduction............3

II. Origins and Development of Article 158(3) of the Basic Law........4

A. Case Law.............6

1. Classification....................7

2. Predominant Provision.................8

3. Necessity......................9

4. Arguability.................10

B. Confusion and Controversy...................10

1. Order of Operations.....................10

2. Predominant Provision..........................11

III. A Comparative Approach............13

A. Similarities between Article 158(3) of the Basic Law and Article 267 of the TFEU....................13

B. Preliminary Reference Procedure of the E.U...............17

1. Irrelevant Question............. 17

2. Acte Éclairé..........18

3. Acte Clair...................18

IV. Lessons for Hong Kong from the E.U.................19

A. No Order of Operations..............19

B. Judicial Economy................20

1. Distinguish Legal Acts from Political Acts.................22

2. Expand the Concept of Hong Kong Law..............23

V. Doctrine of Sincere Cooperation.........................25

VI. Responsibilities of the Court of Final Appeal...............28

VII. Conclusion....................28

I. Introduction

The year 2015 marked the twenty-fifth anniversary of the promulgation of the Basic Law of the Hong Kong Special Administrative Region of the People's Republic of China (Basic Law), while 2017 marked twenty years since the return of Hong Kong to the People's Republic of China (PRC or China). These are major milestones for a unique constitutional experiment in which the Hong Kong Special Administrative Region of the PRC (Hong Kong) and the rest of China (mainland China) co-exist as the same sovereign country but under completely different political, legal, and economic systems. The principle of this co-existence-"One Country, Two Systems"-is fundamental to the Basic Law.

Both mainland China and Hong Kong have gained experience while living under this unique constitutional system. Yet, many areas of constitutional law remain underdeveloped. This is pardy due to the unprecedented nature of the Basic Law, meaning that Hong Kong has to budd up a constitutional jurisprudence from scratch. It is also partly due to political sensitivities, which inhibit a vigorous and constructive judicial dialogue.

This Article focuses on Article 158(3) of the Basic Law, which has proved to be one of its most controversial provisions. It defines a preliminary reference procedure, through which the National People's Congress Standing Committee (NPCSC)-the legislator of the central government in Beijing-is to be the ultimate interpreter of the Basic Law. Under Article 158(3), Hong Kong courts must refer questions of law to the NPCSC when judicial decisions require interpretations of certain Basic Law provisions and such judicial decisions cannot be appealed. This situation is openly opposed by many lawyers and judges in Hong Kong. The Hong Kong Court of Final Appeal (CFA), the highest regional court in Hong Kong, has seldom dealt with Article 158(3), and, when it has, it has decided cases in confusing, even absurd, ways to avoid making references to the NPCSC.

The jurisprudential development of Basic Law Article 158(3) remains primitive. The judicial and political elites do not agree on when a preliminary reference must be made. The people of Hong Kong have a poor understanding about the procedure's role in the constitutional order. Politics and law are often conflated, and when that happens, legal clarity is rarely the victor.

This Article argues that it is time to recall the European Union (E.U.) origins of Article 158(3). Article 158(3) was explicitly modelled upon the preliminary reference procedure in Article 267 of the Treaty on the Functioning of the European Union (TFEU).1 The E.U., unlike Hong Kong, has developed a workable and reputable jurisprudence to govern its preliminar)' references. …

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