Abstract
The power of final adjudication of the Hong Kong Court of Final Appeal (CFA) is qualified by Article 158 of the Basic Law of the HKSAR,1 which on the one hand authorizes the HKSAR courts to interpret provisions of the Basic Law,2 and on the other hand requires the CFA to seek an interpretation from the Standing Committee of the National People’s Congress (NPCSC) of provisions of the Basic Law concerning affairs, which are the responsibility of the Central People’s Government, or concerning the relationship between the Central Authorities and the HKSAR, where such interpretation will affect the judgment on the case.3 The CFA has been asked on several occasions to make such a “judicial reference” of Basic Law provisions to the NPCSC for interpretation. An examination of the CFA’s judgments on these applications indicates that the CFA has taken an uncompromisingly autonomy oriented approach toward the question of judicial reference, trying, on the one hand, not to be placed in a position to countenance the question if possible, and tacitly resisting, on the other, the filling up of constitutional space by NPCSC interpretations, and the consequential snuffing out of its freedom to interpret the Basic Law.
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Notes
Kompetenz-Kompetenz refers to the jurisdiction to give a binding ruling on the extent of one’s own jurisdiction. See P. Y. Lo, “Master of One’s Own Court,” Hong Kong Law Journal 34 (2004): 47.
Denis Chang, “The Reference to the Standing Committee of the National People’s Congress under Article 158 of the Basic Law: The Question of Methodology,” in Hong Kong’s Constitutional Debate: Conflicts over Interpretation, ed. J. M. M. Chan, H. L. Fu, and Yash Ghai (Hong Kong: Hong Kong University Press, 2000), 144.
Albert H. Y. Chen, “The Court of Final Appeal’s Ruling in the ‘Illegal Migrant’ Children Case: A Critical Commentary on the Application of Article 158 of the Basic Law,” in Hong Kong’s Constitutional Debate, 124–25. For a similar approach, see Weiyun Xiao, Lun Xianggang Jiebenfa [On Hong Kong Basic Law] (Beijing: Peking University Press, 2003), 857.
Yash Ghai, “The Imperatives of Autonomy: Contradictions of the Basic Law,” in Hong Kong’s Constitutional Debates, ed. Johannes Chan and Lison Harris (Hong Kong: Hong Kong Law Journal, 2005), 37.
Roscoe Pound, The Spirit of the Common Law (New Brunswick, NJ: Transaction, 1999; repr. 1921 ed.), 171.
Albert H. Y. Chen, “Another Case of Conflict between the CFA and the NPC Standing Committee?” Hong Kong Law Journal 31 (2001):179 at 184.
See, however, P. Y. Lo, One Living Tree (Hong Kong: Ming Pao, 2005), 61–74.
Henry G. Schermers and Denis F. Waelbroeck, Judicial Protection in the European Union, 6th ed. (The Hague: Kluwer Law International, 2001), 218. The authors cite the German and Italian legal systems as examples, and also briefly mention the existence of a “certification” system in the United States; see
Jeffrey C. Cohen, “The European Preliminary Reference and US Supreme Court Review of State Court Judgments: A Study in Comparative Judicial Federalism” American Journal of Comparative Law 44 (1996): 421, 455–57. Contrast with Mainland China, where the Supreme People’s Court in Beijing ensures uniform interpretation and application of the laws through rule making by judicial interpretations and specific rulings by intercourt correspondence (qingshi-pifu). See, generally, Judicial Interpretation (New Edition) (Beijing: Law Press, China, 2004).
See Sionaidh Douglas-Scott, Constitutional Law of the European Union (Harlow: Pearson Education, 2002), 225–26.
See Alec Stone Sweet, “Integration and the Europeanization of the Law,” in Law and Administration in Europe: Essays in Honour of Carol Harlow, ed. Paul Craig and Richard Rawlings (Oxford: Oxford University Press, 2003), 219. See also
Karen J. Alter, Establishing the Supremacy of European Law (Oxford: Oxford University Press, 2001).
James Crawford, Rights in One Country: Hong Kong and China (Hong Kong: Faculty of Law, University of Hong Kong, 2005), 9.
Federico Mancini, “The Making of a Constitution for Europe” Common Market Law Rev 24 (1989): 595, 606.
Cf. Mark V. Tushnet, Taking the Constitution Away from the Courts (Princeton, NJ: Princeton University Press, 1999).
Charles Fried, Saying What the Law Is: The Constitution in the Supreme Court (Cambridge, MA: Harvard University Press, 2004), 14.
Michael Kirby, Judicial Activism (London: Thomson/Sweet & Maxwell, 2004), xv.
See, for example, Murray Hunt, “Sovereignty’s Blight: Why Contemporary Public Law Needs the Concept of ‘ Due Deference’,” in Public Law in a Multi-Layered Constitution, ed. Nicholas Bamforth and Peter Leyland (Oxford: Hart, 2003), 337–70;
Jeffrey Jowelland Jonathan Cooper, Introduction in Delivering Rights: How the Human Rights Act is Working ed. Jeffrey Jowell and Jonathan Cooper (Oxford: Hart, 2003), 3–4;
Anthony Lester and David Pannick, eds., Human Rights: Law and Practice, 2nd ed. (London: LexisNexis/Butterworths, 2004), 3.19–3.20.
For an account of the evolution of the American doctrine of “political questions,” see David M. O’Brien, Storm Center: The Supreme Court in American Politics (New York: W. W. Norton, 2000), 180–82. However, in the case of HC 910/86 Ressler v. Minister of Defence (1988) 42(2) PD 441, the Supreme Court of Israel developed the distinction between “normative justiciability” and “institutional justiciability” and held that all actions of the government were normatively justiciable, while a restricted number of categories of cases, such as the internal administration of the Knesset (the Israeli Parliament), were not institutionally justiciable; see
Itzhak Zamir and Allen Zysblat, Public Law in Israel (Oxford: Clarendon Press, 1996), 269–70.
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© 2007 Hualing Fu, Lison Harris, and Simon N. M. Young, eds.
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Lo, P.Y. (2007). Rethinking Judicial Reference. In: Fu, H., Harris, L., Young, S.N.M. (eds) Interpreting Hong Kong’s Basic Law: The Struggle for Coherence. Palgrave Macmillan, New York. https://doi.org/10.1057/9780230610361_9
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DOI: https://doi.org/10.1057/9780230610361_9
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