legal system", however, that restriction should be confined to the bringing of proceedings concerning such acts directly against the Central People's Government, and not, as was provided in the third paragraph of the 1988 text, extend to all "cases relating to the executive acts of" the CPG. It would not accord with the current legal system, and thus with JD 58, to exclude from the jurisdiction of the Hong Kong courts a case against a third person which related to an act of the sovereign power, not being an act of state in the international sense.
4. In the 1989 text, the draftsmen appeared to have adopted a more restrictive approach since paragraph three refers only to acts of state in the international sense. A common lawyer would read the 1989 text as confined to act of state in that sense, but it is by no means certain that the mainland draftsmen would have considered that their text was so limited. Further, even on a common lawyer's reading of the 1989 text, there is a very real case that the third paragraph of article 19 is not a comprehensive listing of all the restrictions referred to in the second paragraph of that article, but only deals with a special case to which a particular evidential procedure applies. The second paragraph is sufficient to comprise all previous restrictions and is, itself, authority (if only reinforcing authority) for the proposition that the courts in the SAR could not entertain proceedings against the Central People's Government. But that position is an improvement on the 1988 text, since it does not exclude jurisdiction in relation to the acts of the CPG as between other parties. This is a very important distinction since it would make the agent of the CPG in the SAR liable for the acts of the CPG which were unlawful in terms of the Basic Law even though the proceedings could not be brought directly against the CPG.
5. The change reported in HK telno 4105 indicates a return to the thinking which produced the 1988 text. It seems clear that the mainland draftsmen do wish to impose a restriction on the courts of the SAR in relation to the acts of the CPG ( which they characterise as acts of state, and, indeed, there is a sense in which such acts could also be described in a general, non-international, way as acts of state in English law ), but it is by no means clear what is the extent of the restriction that they have in mind. Taking the example cited by Shao Tianren in paragraph 4 of TUR, the Chinese want to exclude the SAR courts from jurisdiction over the appointment of the Chief Executive by the CPG. But does this mean that the courts have no jurisdiction :
-
a) to hear a claim against the CPG that the appointment is invalid;
b) to hear a claim against the Chief Executive
that his appointment is invalid;
c) to enquire into the validity of the actual act
of appointment by the CPG under Article 45;
2