Beijing's concept of 'state immunity' applies equally in Hong Kong, the central government says in a draft interpretation of the Basic Law, requested by the special administrative region's highest court.
It is the first time Hong Kong's Court of Final Appeal has gone to the national legislature to decide on the city's mini-constitution, although Beijing has performed three interpretations in the past at the request of the Hong Kong government.
The question concerns whether Congo is immune from the court's jurisdiction in a commercial case. Is the court bound to follow Beijing's position, where states are immune in all types of case, or may the SAR follow the position of 'restricted immunity' - where states are not immune in commercial deals? 'Restricted immunity' applied in Hong Kong before the handover. The court thinks the Basic Law is ambiguous in its mention of 'acts of state such as defence and foreign affairs'.
But the answer is clear, according to the draft response. Li Fei, a senior state legal official, said yesterday in his presentation of the draft that Hong Kong must follow the central government's position because the question concerned foreign affairs. '[State immunity] directly impacts on a country's relations with foreign countries,' he wrote.
As vice-chairman of the legal affairs commission of the National People's Congress Standing Committee, Li was addressing committee members, who will vote tomorrow on its interpretation of two articles of Hong Kong's Basic Law.
In the case, the United States-based fund FG Hemisphere Associates is trying to reclaim over US$100 million from the Democratic Republic of Congo. The debts are held in Hong Kong. Congo says the repayment is not enforceable as the country is immune from jurisdiction.
Li said Beijing did not recognise itself being sued overseas. 'Our country does not accept that foreign courts have jurisdiction over cases where our country is a defendant or cases which target our property.'
The final interpretation will be unlikely to deviate from the draft, although a bill theoretically allows for deliberation before voting. 'Normally there won't be any deliberation and you can expect the vote will likely be unanimous,' said Eric Cheung Tat-ming, assistant law professor at the University of Hong Kong.
Cheung said that although the Basic Law Committee, which has six Hong Kong members, was consulted, there was no mention of any of its views in the release. 'This is not surprising, because we all know that the Basic Law Committee is just a rubber stamp,' he said.
Elsie Leung Oi-sie, vice-chairwoman of the Basic Law Committee and former Hong Kong justice secretary, said the Basic Law Committee had already reviewed and agreed with the draft response.
'While we have self-governance under 'one country, two systems', when it comes to sovereignty and foreign relations it is not possible to have two positions,' she said.