TNAG-1722-FCO40-2415-Future-of-Hong-Kong-Basic-Law-1988 — Page 171

HONG KONG LEGISLATIVE COUNCIL

14 July 1988

1889

examples of the matters which are excluded from the jurisdiction of the Hong Kong courts today:

(a) Prerogative powers-The courts may not review on its merits the exercise of an admitted prerogative power, that is, a power which can be exercised by the sovereign and is theoretically subject to no restrictions. Examples are the dissolution of the legislature, the appointment of the Governor and other public officers, the control of the armed forces, the power to enter a nolle prosequi (which puts an end to the prosecution of a particular criminal case) and the power to pardon or remit sentences. But even in relation to these prerogative powers, the courts may still determine whether a prerogative power exists, or whether a particular public authority of official may exercise the prerogative power on behalf of the Crown; or whether the exercise of the prerogative power imposes a duty on the Crown to compensate the citizen.

(b) External affairs-The conduct of foreign relations is an exercise of the prerogative power. And in the field of foreign affairs, certain prerogative acts of policy performed by the Crown in the cause of its relationship with other states or its subjects are called 'acts of state' and they cannot be challenged, controlled or interfered with by the courts. Some examples are: the making and performance of treaties and declarations of war. However, as with other acts of the prerogative, it is still open to the courts to decide whether a particular act is or is not an act of state, or whether particular authority or official has power to exercise the prerogative power. And when an act of state has caused damage to the citizens of a state, compensation is payable; but not if the aggrieved party is an alien outside the jurisdiction of the state.

Then there are a number of matters which have been conveniently called 'facts of state', for example, whether a particular country was at war with another country on a particular date. And in relation to facts of state, there is a prescribed method of proving them, namely, by way of certificates issued by the executive which are binding on the courts.

Sir, the above is not intended to be exhaustive, for there are other prerogative powers and matters which are not justiciable in the Hong Kong courts today, and they are clearly prescribed by the common law. And the common law is constantly developing. It is therefore both difficult and undesirable to codify these common law rules.

From the above analysis, it is clear that although some of the matters which are not justiciable in the courts do fall within the description of defence and foreign affairs, not every case relating to defence or foreign affairs is outside the jurisdiction of the Hong Kong courts today. In other words, the limits of jurisdiction sought to be imposed on the courts of the HKSAR by the present article represent a departure from the present situation. And this is contrary to