Open to abuse
Hong Kong's recent decision in a court case on state immunity has drawn little discussion of its implications for human rights protection. The implications were not obvious, as the case involved an American vulture fund suing the Democratic Republic of Congo to collect a sovereign debt. Legally, however, the case governs all claims of immunity made in Hong Kong courts, including those made by a serving or former head of state.
Holding that our immunity law must align with mainland China's, the decision sends a message to the world that deposed dictators and their assets can find sanctuary in Hong Kong, free from the accountability mechanisms of international justice. It is no coincidence that the word 'immunity' is but a letter shy of the word 'impunity'.
The idea of Hong Kong harbouring past and present leaders wanted for international crimes is by no means fanciful. Less than a month after the Congo judgment, President Hu Jintao welcomed Sudan's president, Omar al-Bashir, in Beijing, notwithstanding the warrants for the latter's arrest issued by the International Criminal Court (ICC) and international criticism of the visit.
Bashir is wanted by the ICC for alleged war crimes relating to atrocities in Darfur. China, however, is not a signatory to the Rome Statute that established the international court.
Zimbabwe's president, Robert Mugabe, and his family are regular visitors to Hong Kong, partly because his daughter was a student in a local university. The widely reported alleged assaults on journalists by Mugabe's wife and security guards in 2009, and the subsequent controversy over the non-prosecution of these individuals owing to diplomatic immunity and other reasons, did not deter the Mugabes from returning. If regime change were to occur in Zimbabwe some day, international attention would certainly turn to Hong Kong.
There has been increased public attention to politically exposed people and their financial dealings, especially with the coming into force of the United Nations Convention Against Corruption. Parties to the convention are bound not only to take steps to prevent corruption but also to provide assistance and co-operation in the recovery of stolen assets.
When corrupt regimes and leaders fall, the trend is to see the incoming authority take legal action to recover the ill-gotten gains of the old regime. Most recently, the fall of the Tunisian and Egyptian leaders was followed almost immediately by asset freezes of property owned by them and their families.
Hong Kong's Congo decision tells us how differently its court would have ruled in the 1999 immunity case of former Chilean military dictator Augusto Pinochet. Pinochet, while in London for medical treatment, was the subject of an arrest and later extradition request issued by a Spanish magistrate. The Spanish request alleged that Pinochet commanded a criminal organisation that carried out illegal detentions, kidnapping, torture followed by death, and forced disappearances of thousands of people.
Pinochet claimed immunity and challenged the extradition request in the British courts. The Law Lords held that Pinochet was not entitled to immunity, because torture is an international crime for which states can exercise universal jurisdiction. If a similar case arose now in Hong Kong, its court would handle it quite differently.
In the Congo case, Hong Kong's Court of Final Appeal found in a 3-2 decision that, as on the mainland, foreign states cannot be sued in Hong Kong.
The majority's approach holds that Hong Kong courts and Beijing must speak with one voice on immunity law and policy. Hence, Hong Kong's task is to ascertain the relevant Chinese policy and apply it as local law to the circumstances of the case. The relevant position is to be established either by the Basic Law's Article 19 act of state certificate procedure, or via the less formal procedure endorsed in Congo - an official letter from the Chinese foreign ministry setting out the relevant position. In practice, once the Chinese policy of upholding the immunity is determined, the matter will not even reach the courts, because the executive will decline to take action.
The two dissenting judges would approach the issue more like the House of Lords did in the Pinochet case, by determining Hong Kong's immunity law for former heads of state without need to consult the mainland.
In Pinochet, Lord Browne-Wilkinson held that at common law a former head of state loses personal immunity on leaving office and enjoys only subject-matter immunity, meaning immunity covering only official acts done while head of state. As the commission of an international crime such as torture (or even grand corruption) cannot conceivably be regarded as an official function of a head of state, the immunity will be pierced. In this light, the minority's approach in the Congo case allows for a richer, more cosmopolitan legal debate that draws on comparative developments in common law and international law.
There is no reason to believe that the Chinese policy will be anything less than full personal immunity for former heads of state. Chinese concerns with the ICC and the exorbitant exercise of universal jurisdiction by some countries are well documented. No doubt lawsuits brought in the United States and Spain against former president Jiang Zemin have heightened concerns.
The Congo case exposes an irony of 'one country, two systems': while it entrenches strong human rights protections within Hong Kong, it unfurls the welcome mat to individuals who may have committed some of the world's most egregious human rights violations.
Simon N. M. Young is director of the Centre for Comparative and Public Law, Faculty of Law, University of Hong Kong. The full version of this article will appear in an upcoming special issue of the Hong Kong Law Journal on the Congo case