Article
Art. 19(3)
Problem
CONFIDENTIAL
11
Suggested Solution
wishes to the detriment of the SAR's own interest, the consultation referred to in this para. should be with the SAR legislature.
laws in Annex III after consulting its Committee for the Basic Law of the HKSAR and the Legislative Council of the Region."
H
The first sentence of para. 3 is too wide : it may be construed as prohibiting the SAR courts from considering all cases in which the question of acts of state arises. This would go beyond the existing practice. Further, the common law concepts of "acts/facts of state" are not defined in the current draft. The concept of "acts of state" has now found its way, but with its own mainland meaning, into the PRC's new Administration Litigation Law. There is consequently a risk of confusion in the interpretation of those
(i)
A preferable approach is to avoid the references to "acts of state" and "facts of state". A redraft of paras. 3 and 4 of Art. 19 could be as follows:
"The CE shall obtain a certificate from the CPG before issuing to the courts of the HKSAR any statement which relates to defence and foreign affairs and which, in accordance with HK's previous legal system, is binding on the courts."
CONFIDENTIAL
Remarks
i
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