TNAG-2103-FCO40-2995-Future-of-Hong-Kong-exchanges-with-the-Chinese-on-the-Basic--1990 — Page 161

FAX TO

Mr

CONFIDENTIAL

Mr

Ho

HKC012 3

RECEIVED IN REGISTRY

-JFE 1990

BY BAG TO

Mr

Bradley DPA t

GDB

HK.

Pigott, Peking

3

Ex.

ms Majar

ARTICLE 19

ms Berret

DESK OFFICER

REGISTRY

INDLY

PA

Action Taken

Legal Advices

¿ po.

Am

1. The second paragraph of Article 19 provides that:

"Courts of the Hong Kong Special Administrative Region shall have jurisdiction over all cases in the Region, except that the restrictions on their jurisdiction imposed by Hong Kong's previous legal system shall be maintained."

2. The third paragraph of the article is apparently intended to supplement this by stating (existing)

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restrictions; but the text fluctuates between singling out the common law act of state exception (which we are told is not understood on the mainland) and a more comprehensive provision. In the 1988 text, it was provided that the courts should have no jurisdiction over cases "relating to defence and foreign affairs, which are the responsibility of the Central People's Government, and cases relating to the executive acts of the Central People's Government". The first limb of that passage, "defence and foreign affairs". is very loosely an indication of the scope of the common doctrine of act of state and, given that interpretation, can be construed as reflecting an existing restriction. However, the second limb, "executive acts", insofar as it refers to acts other than "acts of state", is not the subject of an existing restriction on the courts jurisdiction at common law; the courts have power to examine the lawfulness of the acts of the Executive other than those acts in the exercise of its external relations which fall within the doctrine of act of state. This is recognised by the second paragraph of Article 35 which provides that "Hong Kong residents shall have the right to institute legal proceedings in the courts against the actions of the executive organs or their personnel", a provision which it is probable is intended to relate only to the executive organs of the SAR though the expression "executive organs" does not, I think, appear elsewhere and it is capable of including the executive organs of the central authorities.

3. The position of the courts of Hong Kong is, however, not quite so uncomplicated. Under the Crown Proceedings Ordinance, the courts of Hong Kong cannot entertain suits against the Crown in right of the United Kingdom (though there is an argument that this restriction may not extend to applications for judicial review ); any such suit would have to be brought in the courts in England. Shao Tianren is aware of this. The existing restrictions on the jurisdiction of the courts of Hong Kong, therefore, as regards the sovereign power are more extensive than a restriction as regards acts of state, and if the Central People's Government is to be equated with the Crown in right of the United Kingdom, an argument can be made for a further restriction relating to proceedings concerning acts of the Central Authorities. To be consistent with the "previous

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