CONFIDENTIAL
FM HONG KONG
TO IMMEDIATE FCO
TELNO 1390
OF 030815Z MAY 89
CONFIDENTIAL
HKB 012/1
TOP COPY Q DIST ?
INFO PRIORITY PEKING, UKREP JLG HONG KONG
95
98
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032056
MDHIAN 3060
See (100, 162
OUR TELNOS 1331 AND 1366: DRAFT BASIC LAW: ARTICLE 19
103
WE REPORTED IN PARA 7 OF FIRST TUR THE REFERENCE BY MAINLAND DRAFTERS TO THE NEW PRC LAW ON ADMINISTRATIVE LITIGATION PROCEDURES WHEN WE WERE DISCUSSING WITH THEM ARTICLE 19 OF THE BL AND THE USE OF THE TERM ''ACTS OF STATE''.
12.
2. SUBSEQUENTLY WE HAVE CHECKED THE TEXT OF THIS LAW WHICH WAS PASSED BY NPC ON 4 APRIL 1989 AND WILL COME INTO EFFECT ON 1 OCTOBER
1990. ARTICLE 12 STATES (OUR TRANSLATION):
''THE PEOPLE'S COURT SHALL NOT ACCEPT PROCEEDINGS FILED BY CITIZENS, LEGAL PERSONS OR OTHER ORGANISATIONS ON THE FOLLOWING MATTERS:
(1) ACTS OF STATE SUCH AS DEFENCE, FOREIGN AFFAIRS, ETC
(2)
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(3) ADOPTION OF THE TERM 'ACTS OF STATE IN A CHINESE DOMESTIC LAW MEANS THAT THE CONCEPT IS NO LONGER AS ALIEN TO THEM AS ONCE SEEMED THE CASE. BUT THIS APPARENT ADVANCE CONTAINS ITS OWN DISADVANTAGES. IT IS CLEAR FROM THE WORDING OF 2(1) ABOVE THAT THE WAY THE CHINESE ARE USING THE TERM DIFFERS SUBSTATIALLY FROM THE MEANING WE WOULD WISH TO BE ATTRIBUTED TO IT IF IT IS INCLUDED IN ARTICLE 19. IF THE TEXT OF ARTICLE 19 REMAINS AS AT PRESENT, IT WOULD APPEAR THAT IT COULD BE INTERPRETED BY THE CHINESE TO COVER ALL ACTS RELATING TO FOREIGN AFFAIRS OR DEFENCE.
4. THE CHINESE HAVE SAID ON MANY OCCASIONS THAT THEY SIMPLY WISH ARTICLE 19 TO REFLECT THE PRESENT PRACTICE OF HONG KONG COURTS. THAT BEING THE CASE IT IS NOW DOUBLY IMPORTANT THAT WE SHOULD MAKE SURE THAT THE WORDING IS CORRECT AND NOT LIABLE TO MISINTERPRETATION.
5. OUR PREFERENCE REMAINS TO CONTINUE TO PRESS OUR PRESENT FORMULAT-
ION IE TO REVISE THE FIRST SENTENCE OF PARAGRAPH 3 OF ARTICLE 19 TO READ 'COURTS OF THE HKSAR SHALL NOT QUESTION THE VALIDITY OF
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