HK solution

PUBLISHED : Wednesday, 31 August, 2011, 12:00am
UPDATED : Wednesday, 31 August, 2011, 12:00am


The ruling in the Congo case by the National People's Congress Standing Committee, which is binding on local courts, is a step backwards, given that pre-1997 Hong Kong had adopted a policy of restrictive rather than absolute immunity, and this is clearly the way the world is going.

In the debt dispute, the Democratic Republic of Congo government had agreed to be bound by arbitration, but subsequently reneged. When the American company FG Hemisphere Associates - a so-called vulture fund - took the case to the Hong Kong courts, Congo insisted it had absolute immunity.

The Standing Committee's decision seems to be at odds with the fact that China in 2005 signed the UN Convention on Jurisdictional Immunities of States and Their Properties, under which states will not enjoy immunity in commercial matters.

However, China has not ratified the convention, which has yet to come into force. Presumably, if the convention does come into effect one day and is ratified by Beijing, it will extend the agreement to Hong Kong as well, reversing the latest decision. But that situation may be years down the road.

The latest interpretation is the fourth by the Standing Committee, with each sparking political disputes in Hong Kong with charges that the special administrative region's autonomy is being eroded. This time, because the interpretation was requested by the Court of Final Appeal, there is an even stronger sense that the judiciary's independence is being eroded.

Each time there is such a controversy, Beijing is asked to intervene and, each time, relations between Hong Kong and the central government suffer. It would be far better if Hong Kong could, on its own, resolve legal issues without running to Beijing.

A major problem at present is that, under the common law system, the courts interpret the law by examining its wording while, on the mainland, where there is legislative rather than judicial interpretation, reference is made to discussion during the drafting process to understand the original intent of legislators.

It would be useful if the Court of Final Appeal could, in matters involving the Basic Law, widen the traditional approach by taking into consideration factors that are relevant to mainland legislators. Thus, records of discussion during the drafting of the Basic Law could be made available to the court for consideration. If necessary, drafters could be called on to provide testimony regarding the original intent of the law. Naturally, such a move would require prior consultation with Beijing.

This should not be seen as a move to circumvent the Standing Committee's authority. Rather, it should be seen as an attempt by Hong Kong to resolve its own legal problems and not burden the mainland with them.

The reduction of cases requiring Standing Committee decisions should result in greater harmony between Hong Kong and the mainland, and that would surely be welcomed, both in Beijing and Hong Kong.

Frank Ching is a Hong Kong-based writer and commentator. Follow him on Twitter: @FrankChing1