A Comparative Study of the Preliminary Reference Procedure under the Hong Kong Basic Law and the Treaty on the Functioning of the European Union

This paper discusses 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 (EU). It argues that this part of Hong Kong constitutional law is woefully underdeveloped due in large part to the unwillingness of the Hong Kong judiciary to respect the interests of the national legislature. An examination of preliminary reference as practiced in and transplanted from the EU makes clear that the constitutional order in Hong Kong must do more to balance regional and national interests. To that end this paper recommends several reforms that would be beneficial in Hong Kong: 1) to eliminate the existing jurisprudence regarding Article 158(3) Basic Law; 2) to adopt EU-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 be a hybrid system of common law and Chinese law.