TNAG-2103-FCO40-2995-Future-of-Hong-Kong-exchanges-with-the-Chinese-on-the-Basic--1990 — Page 74

CONFIDENTIAL

2

機密

Article 19 para,3

Issue

: The Feb 1989 text provides that

"Courts of the HK SAR should have no jurisdiction over cases relating to the acts of state. Courts of the region should obtain a statement from the CE on questions concerning the facts of state whenever such questions arise in any legal proceedings. This statement shall be binding on the courts."

Our concerns at that time were that the first sentence was too wide and might be construed as prohibiting the courts from considering any case in which a question of acts of state arises; this would go beyond the present practice. Further, the common law concepts of "acts/facts of state" were not defined.

We drew these points to Chinese attention in the note attached to S of S's letter of 6/12/89, and proposed alternative texts.

The latest text adopted by the Chinese reads

:

shall

have no

"Courts of the HK SAR jurisdiction over acts of state such as defence and foreign affairs.

on

of questions

defence

and

Courts facts concerning acts of state such as foreign affairs whenever such questions arises

11

This meets our concerns in that the wording "cases relating to" and reference to "acts of

have been state"

is still in

that

unsatisfactory,

removed. however,

It

qualification of the term "acts of state" by "such as defence and foreign affairs" widens without limiting the scope of the term.

Public Line: Taken together with the rest of this article, the jurisdiction of the courts should not be

further restrictions. improvement

narrowed

than

the

of

existing But there is still room for

definition concerning the "acts of state" and hope Chinese will look at this again.

CONFIDENTIAL

機密