TNAG-2103-FCO40-2995-Future-of-Hong-Kong-exchanges-with-the-Chinese-on-the-Basic--1990 — Page 164

that the courts will, if not constrained, disregard the statements of the Central authorities as to what they have done, taking some such line as it is said the CPG has done such and such, but how do we know that is so? we must make our own enquiries and decide if they have done what it is said they have done'. Such a fear could be allayed by ensuring that the law of the SAR has a sufficiently effective provision for proving the acts of the CPG. The Documentary Evidence Act, 1868, which extends to Hong Kong, provides such a provision, but in replacing it by a local law it would be as well to consider whether the provision making certain documents prima facie evidence should not be replaced in some cases by a provision making them conclusive evidence.

10. That, however, may not be enough to start persuading the Chinese to modify the text in HK telno 4105. A possible alternative would be to write such a provision into Article 19 itself. This is not such a departure from the existing text as it sounds. The third paragraph of Article 19, in both the 1989 and HK telno 4105 texts, deals with both a substantive and an evidential point. The first sentence is substantive, the second evidential. It would be possible to divide the paragraph into two, the first new paragraph consisting only of the first sentence with the ommission of the words "such as defence and foreign affairs". The remainder would form a new fourth paragraph devoted soley to evidential questions, applicable to the more general second paragraph as well as to the more particular new third paragraph. Such a new fourth paragraph could run:

"Courts of the Region shall obtain a statement

from the Chief Executive on questions of facts concerning acts of state or concerning an act of the Central People's Government [or the National People's Congress] whenever such questions arise in any legal proceedings. This statement shall be binding on the courts.

This

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11. To summarise, the problem of Article 19 is by no means easy to deal with. It would obviously be best if it could be resolved in the manner proposed in the December Notes (which were written before the BLDC meeting which redrafted the article ), but now that the draft has gone back to the ideas of the 1988 text, it would be extremely optimistic to hope that that proposal will succeed. paper suggests an alternative approach which takes account of the kind of thinking which probably inspired the redraft. But it is by no means simple to put across and is not really suitable for the kind of talks that the Governor will be having. If the ideas in this paper are agreeable to the Hong Kong Government, however, and if the Governor gets no response to the December Notes solution, he may think it worth making the suggestions in paragraphs 8 and 10 above. I do not have any confidence that the significance of the proposals in those paragraphs will be appreciated without an oral or lengthy written explanation and the time for the

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