d) to enquire whether the appointee had the necesssary qualifications for appointment, i.e. had been selected by election or through consultations held locally ?
Point a) would seem to be unnecessary because it is already excluded by paragraph 2 of Article 19; point c) is also unnecessary since the court could only decide that this is a function of the CPG and not a matter in which they should seek to interfere; (there is a connected evidential issue which is considered in paragraphs 9 and 10 below); points b) and d), however, do raise issues of substance and it would not be consistent with the present legal system to exclude them from the jurisdiction of the courts.
6. Assuming the Chinese wish to exclude issues such as points b) and d) from the jurisdiction of the SAR courts, and one can conceive of more areas where executive acts of the CPG could operate in a questionable manner, there are two questions to be considered:
purpose?
a) does the text in HK telno 4105 achieve this
b) is there any prospect of riding the Chinese off such an extensive exclusion of the jurisdiction of the courts?
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7. As a matter of construction for a common lawyer, do not think that the text does achieve this end. Although it is intended to go beyond act of state in the international sense, the scope of the exclusion is limited by the words "such as defence and foreign affairs". Whatever else is cognate to defence and foreign affairs, it would require a highly creative imagination to lump in the activities of the central authorities as regards part of its own country in such a phrase. Such a construction however is unlikely to commend itself to the Chinese, and if it were adopted by a court in a case which mattered to them, it must be likely that they would resort to the power of interpretation to give effect to their intentions.
8. Is it possible to ride them off the present text ? I think that that is very unlikely now that they have returned to the point. An attempt to persuade them to change their minds would have to start from a clearer idea than we have now of their precise intentions and discovering those would probably involve taking the sufficiently knowledgeable of them through issues such as those set out in paragraph 5 above to see if they could be brought to the position that, so long as the CPG were not directly impleaded, a position achieved by the second paragraph of Article 19, and that there were adequate evidential provisions, they do not need the words "such as defence and foreign affairs". We do not have the time or opportunity to do that.
9. One of the Chinese concerns may well be the fear
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