Ruling on state immunity nears

PUBLISHED : Friday, 19 August, 2011, 12:00am
UPDATED : Friday, 19 August, 2011, 12:00am


The Basic Law Committee will meet on Sunday to discuss Beijing's forthcoming interpretation of the clauses of the mini-constitution relating to state immunity.

The meeting will pave the way for an interpretation to be made by the National People's Congress Standing Committee when it meets from next Wednesday to the following Friday.

Committee member Lau Nai-keung said the advisory body would make a submission to the Standing Committee after considering four questions referred by the Court of Final Appeal. These questions arose from an attempt by US-based fund FG Hemisphere Associates to force Democratic Republic of Congo to repay a debt of more than US$100 million. The court ruled the debt was not enforceable, in part, because the doctrine of immunity had been incorporated into Hong Kong common law.

But the case raised questions about differing policies on sovereign state immunity in Hong Kong and on the mainland.

The 12-member Basic Law Committee advises the National People's Congress Standing Committee on Hong Kong's mini-constitution.

The Standing Committee will give its interpretation of Article 13 and 19 in the Basic Law at its meeting next week after consulting the committee's Legislative Affairs Commission and the Basic Law Committee.

'The Standing Committee will not seek the views of the Court of Final Appeal before making the interpretation. It will make a statement explaining its interpretation and pass on relevant documents to the Court of Final Appeal and the Hong Kong government,' a Hong Kong person familiar with the procedures of the interpretation said.

In an attempt to seek an explanation of the city's state immunity policy, the court asked the Standing Committee for the interpretation on June 8, the first time it had done so.

Secretary for Justice Wong Yan-lung forwarded the court's letter of referral last month to the Hong Kong and Macau Affairs Office of the State Council for transmission to the Standing Committee.

The Standing Committee's legislative process is well established but how an interpretation will be used by the courts in Hong Kong is uncharted territory.

Samuel Ngo Cheuk-sum, solicitor for the Democratic Republic of Congo, said that as the situation was unprecedented, 'none of the parties have a clue' how the court will handle the interpretation.

In its provisional judgment, the court said the case would be restored to the list, meaning a hearing would be held, after the interpretation.

But that may depend on how unexpected the decision from Beijing is, and whether it requires further argument.

If not, the court could just receive written submissions before handing down its final verdict.