Issues for Beijing offered in Congo case

The government has put forward the questions it would like to see the Court of Final Appeal ask Beijing when deciding on Hong Kong's foreign immunity position - but stopped short of requesting the interpretation.

Benjamin Yu SC, for Secretary for Justice Wong Yan-lung, said yesterday that Article 13 of the city's Basic Law concerns issues of interest to the central government. Article 13 states that the mainland is responsible for the city's foreign affairs.

According to the Basic Law, this means that the court 'shall ... seek an interpretation of the relevant provisions from the Standing Committee of the National People's Congress'.

Expanding on themes he introduced in court on Tuesday, Yu said: 'The correct approach must be to interpret and follow our own constitution'. The court has never asked Beijing to interpret the Basic Law.

Yu offered four matters for interpretation he said would be 'proper questions for referral': Beijing should be asked whether Hong Kong's position on immunity automatically followed the mainland's position, whether the judiciary would have to put that position into effect, whether Beijing could discharge its responsibility for managing Hong Kong's foreign affairs, and whether the pre-1997 immunity laws in Hong Kong could still have any effect.

Yu has maintained that the Basic Law requires Hong Kong to defer to the Beijing view of immunity rights, which holds that commercial deals cannot be prosecuted. Immunity was bound up with foreign policy, which was a decision for the government, not the courts, he said.

If Hong Kong were to maintain a different position from the mainland, 'there cannot be any doubt that it will substantially undermine the state in its international rights and obligations', he said. Yu said while the Basic Law allowed Hong Kong latitude in some external affairs such as trade, it 'does not confer the status of state'.