HKB 012/1
CONFIDENTIAL
Discussed with Mr Edwards.
Agreed not to
put forward his
para 3 at this late stage,
sive norme
has dijeted
Mr Cannon to "facts of state".
HKD
Exter
FROM D M Edwards
Legal Advisers K159 270 3058
DATE 10 May 1989
Ела термал
HONG KONG BASIC LAW: "ACTS OF STATE"
1.
100
Please refer to your minute of 3 May and the three relevant telegrams from Hong Kong. The doctrine of act of State is not a straight forward one. Put simply, the classical view, which is widely but by no means universally accepted, is that sovereign States are bound to respect the independence of every other sovereign and the courts of one State will not sit in judgment on the acts of another State or Government done within its own territory. As a matter of UK law one authority described an act of State as "an act of the Executive as a matter of policy performed in the course of its relations with another State, including its relations with the subjects of that State, unless they are temporarily within the allegiance of the Crown". It has also been described as an exercise of sovereign power which "cannot be challenged, controlled or interfered with by municipal courts. Its sanction is not that of law, but that of sovereign power, and, whatever it be, municipal courts must accept it, as it is, without question".
2. It is clear that the Chinese position on this (according to Article 12 of their 1989 law) is quite different from our own and that we should try to ensure that the existing jurisdiction and practice of Hong Kong's courts is preserved. I agree that the current text of Article 19 of the Basic Law is not, in these circumstances, satisfactory. I also agree with Hong Kong's preference for the formula "courts of the HKSAR shall not question the validity of acts of State" and I could accept their alternative (A), "courts of the HKSAR shall have no jurisdiction to challenge acts of State" (which has the same basic effect). However, I do not think that alternative (B) "courts of the HKSAR shall have no jurisdiction over acts of State" is, in substance, much better than the existing formula in Article 19 and I would not recommend that Hong Kong put it forward.
CONFIDENTIAL
/ 3.
102