jurisdiction over acts of state such as defence and foreign affairs", a formulation which implies that acts of state is to have a wider meaning than that currently ascribed to it in the common law system and which may well indicate that the Chinese have not abandoned their view, as stated in the April 1988 text of the draft Basic Law, that there are other executive acts of the Central People's Government which fall to be treated as acts of state and so excluded from the jurisdiction of the courts of the SAR. The present Crown Proceedings Ordinance of Hong Kong excludes the courts from exercising jurisdiction over acts of Her Majesty's Government in right of the United Kingdom, so that it might be argued that a comparable provision for the Central Authorities, as the successor to the United Kingdom, would be defensible.
But there could be a considerable difference in fact. The British Government exercise no executive powers in Hong Kong; the government is carried on by the Governor and the Hong Kong administration. There is no way of guessing whether or to what extent the CPG will seek to exercise executive powers under the PRC Constitution directly in the SAR. This problem would not go away if the words "such as" were omitted because, apart from Article 19, there is the issue of whether the Central Authorities and their staffs are amenable to the jurisdiction of the Hong Kong courts.
38.
The courts of the SAR will be the courts of a local
government. territorially.
Their jurisdiction will be limited Their arm will not stretch to Beijing and
39
No comments yet.
Private notes are available after approval.