Top legislature interprets HK law

Updated: 2011-08-27 07:54

By Zhao Yinan (China Daily)

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BEIJING - Sovereign countries cannot be sued in Hong Kong courts, China's top legislature ruled on Friday, a decision that brings the city's judicial system in line with the Chinese mainland's.

Lawmakers at the National People's Congress (NPC) Standing Committee unanimously agreed on an interpretation of two clauses in the Basic Law of the Hong Kong Special Administrative Region that say the absolute state immunity principle, a State policy on the Chinese mainland, also applies to Hong Kong.

"Since state immunity falls in the domain of a country's foreign affairs, it is up to the central government to make decisions about the policy, which should be applied universally within the territory of the People's Republic of China," the top legislature said in a written statement released at the close of its bimonthly meeting.

A country that upholds the principle of absolute state immunity will not recognize the validity of any state, including itself, being sued in overseas courts. Another approach, restricted state immunity - which applied in Hong Kong before the handover - does not protect states in commercial deals.

This is the first time Hong Kong's Court of Final Appeal has referred a question of Basic Law to the country's top legislature for interpretation, although the mainland has offered interpretations on three Basic Law issues in the past.

Following Friday's agreement, the Democratic Republic of Congo will not be liable for a $29 million debt in a lawsuit brought against it in a Hong Kong court by a US investment fund.

Maria Tam Wai-Chu, a deputy of the top legislature from Hong Kong and a lawyer, told China Daily she was invited to attend the Standing Committee's session to brief lawmakers on the details of the Congo case and the importance of their decision.

"I attended group discussions during the three-day meeting and explained to legislators why a constant and unified policy of state immunity is so important to keep Hong Kong an investment-friendly place," she said.

Li Fei, a senior legislator of the NPC Standing Committee, said it is in accordance with China's Constitution and Hong Kong's Basic Law for the top legislature to give the final interpretation of Hong Kong's mini-constitution, and the legislature's decision can facilitate the working of Basic Law and the independence of Hong Kong's judicial system.

That the top legislature interpreted the clauses arouses concern because it could serve as a precedent in another court case. In that case, three foreign domestic helpers in Hong Kong who have been living in the city for more than seven years - the minimum time to get Hong Kong permanent residency - sued the local government for not granting them residency.

The ruling in that case is likely to affect 290,000 maids in the city, most of them from Indonesia and the Philippines.

Regina Ip Lau Suk-yee, president of the Hong Kong-based New People's Party, suggested the National People's Congress interpret the articles in the Basic Law related to permanent residency, the Hong Kong-based newspaper Mingpao reported.

Li Fei, however, said on Friday that the top legislature will do so on its own initiative only if the issue remains divisive, if a ruling runs counter to the Basic Law or the city's Court of Final Appeal asks the top legislature to interpret an article because its meaning will influence the outcome of the case.

China Daily

(China Daily 08/27/2011 page2)