Rethinking Judicial Reference

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.