Unprecedented request aims to determine diplomatic immunity in SAR

Hong Kong's Court of Final Appeal (CFA) will, in an unprecedented move, turn to the National People's Congress Standing Committee (NPCSC) to seek interpretation of articles 13 and 19 of the Basic Law.

The NPCSC will be asked to determine whether the Democratic Republic of Congo (DR Congo) enjoys absolute diplomatic immunity in the SAR.

The vote favoring referral was 3-2.

In the meantime, the CFA will reserve judgment on litigation in which the US investment fund company FG Hemisphere Associates is pressing a suit involving HK$800 million paid to the African country by the State-funded China Railway Corporation.

If the NPCSC resolves that DR Congo enjoys absolute immunity, the case will be wiped out.

In Hong Kong, the Department of Justice welcomed the CFA's decision to seek interpretation from the NPCSC.

The request marks the first time the CFA has invoked the mechanism provided under Article 158 of the Basic Law.

The department hailed the CFA's request as affirming the court's constitutional duty to turn to higher authority.

Mainland and Hong Kong legal practitioners in general heralded the move as appropriate, prudent and all concurred, saying it will not affect the "one country, two systems" policy, nor will it affect the judicial independence of Hong Kong.

Article 13 stipulates that the central government is responsible for foreign affairs of Hong Kong.

Article 19 states that Hong Kong has independent judicial power except in matters of defense and diplomatic affairs.

The cases arose after DR Congo offered mining rights to China Railway in return for massive investments in infrastructure.

The US company moved in an attempt to seize the $102 million (HK$800 million) investment from China Railway, against money owed to the company by DR Congo.

DR Congo took resort to the Hong Kong courts in 2010. A lower court ruled in favor of the American company. The African republic ultimately took the case to the CFA, claiming absolute diplomatic immunity and stating that as a foreign government it cannot be sued.

Rita Fan, a Hong Kong-based NPCSC member, reckoned that there is no breach of judicial independence in the SAR since the CFA is acting in accordance with the Basic Law.

Diplomatic immunity is an issue of foreign affairs and does not fall within the SAR's high degree of autonomy, she added.

"The interpretation will help clarify the extent of diplomatic immunity in Hong Kong," she commented.

The NPCSC will first consult Hong Kong members of the Committee for the Basic Law, who will state their views once the CFA makes its formal request for interpretation. Those opinions, along with other relevant views, will be submitted to the NPCSC for perusal.

As time is short for the NPCSC meeting scheduled for June, Fan said she believed the August meeting is more realistic for the NPCSC to interpret the provisions.

Member of Committee for the Basic Law Maria Tam echoed the comments of Lian Sisheng, a professor from the China University of Political Science and Law, that the interpretation of Basic Law articles does not affect "one country, two systems" and judicial independence in Hong Kong.

In her opinion, foreign affairs and the definition of acts of the State are not within the purview of Hong Kong courts and the high degree of autonomy of Hong Kong, and so it is appropriate for the NPCSC to clarify the matter.

The central government, said Lian, authorizes the SAR to deal with external affairs pursuant to Article 13, but it is up to the NPCSC to clarify whether the case falls within the scope of external affairs matters that Hong Kong is mandated to handle independently.

Lawmaker Priscilla Leung, also an associate law professor at the City University of Hong Kong, said it is safe and prudent for the CFA to seek interpretation from the NPCSC because the litigation might involve the relation between two sovereign powers.

If the NPCSC rules that DR Congo enjoys absolute diplomatic immunity in Hong Kong, the CFA cannot adjudicate the case, she explained.

China Daily

(HK Edition 06/09/2011 page1)