On Monday, Singapore's Defence Minister Ng Eng Hen rose in Parliament to respond to queries by MPs on the seizure of Singapore Armed Forces' (SAF) armoured vehicles in Hong Kong. He said the vehicles and other equipment are the property of the Singapore Government and protected by sovereign immunity under international law. He asked Hong Kong to return them immediately.
The principle of sovereign immunity is founded on equality between countries. When the actions of one sovereign country are brought to the courts in another, generally the relevant jurisdiction of the latter is not exercised. And such a concept exists in China, Britain, Singapore and Hong Kong.
Before Sept 8, 2011, when the Hong Kong Court of Final Appeal ruled on a court case involving the Democratic Republic of Congo and FG Hemisphere Associates, the Hong Kong Special Administrative Region had been applying relevant concepts of sovereign immunity from the British State Immunity Act 1978. That meant the commercial activities of a sovereign country could not invoke sovereign immunity and be exempt from prosecution. In Hong Kong, sovereign states also had to appear in court for legal action arising from commercial disputes or activities.
However, in the 2011 lawsuit involving a debt dispute between DR Congo and FG Hemisphere, the Hong Kong Court of Final Appeal requested that China's National People's Congress Standing Committee (NPCSC) give its interpretation of the relevant articles of the Basic Law, on the basis that the case concerned foreign relations. In its interpretation, the NPCSC pointed out that the British State Immunity Act 1978 no longer applied to Hong Kong, and that Hong Kong should adopt the same approach as China in exercising absolute immunity.
This means that any action by sovereign states in Hong Kong is not liable for prosecution. Following the ruling of the Court of Final Appeal on Sept 8, 2011, there are no longer exceptions on Hong Kong's position on sovereign immunity.
Since the NPCSC has established that the State Immunity Act no longer applies to Hong Kong when explaining the Basic Law, and that China's effecting of absolute sovereign immunity applies, Hong Kong has no legal basis to hold the SAF's armoured vehicles.
Hong Kong Customs should take reference from the DR Congo and FG Hemisphere case and immediately return the armoured vehicles to the Singapore Government, and not continue to hold them on the pretext of an investigation.
Hong Kong's Department of Justice (DOJ), as legal counsel to the Hong Kong government, wrote the grounds of judgment on the DR Congo and FG Hemisphere case. Veteran lawyer and Hong Kong's Secretary for Justice Rimsky Yuen should know that the seizure of Singapore's armoured vehicles cannot stand before the law.
The DOJ is duty-bound to give Hong Kong Customs its legal opinion and point out that under Hong Kong's current laws, there is no basis to hold the armoured vehicles, which were being commercially transported without any explosives on them. While these armoured vehicles are strategic assets legally, it is also clear that sovereign immunity comes above all else.
If China does not want the incident to hurt its relationship with Singapore, all it needs to do is to get the Hong Kong government to release the armoured vehicles based on NPCSC's interpretation of the Basic Law in 2011. Doing so can also be seen as China exercising its sovereignty over Hong Kong, which in fact is also face-saving for China without hurting Singapore-China relations and Hong Kong's status as a free port.
However, if China continues to get Hong Kong to hold these armoured vehicles, not only will it hurt Hong Kong's status as a free port and in turn China's economic interests, but the NPCSC's effectiveness in interpreting the Basic Law will also be called into question.
Since the NPCSC has stated in its interpretation that Hong Kong should exercise absolute sovereign immunity, how effective and logical is NPCSC's interpretation of the Basic Law if China insists on detaining the armoured vehicles?
While the legal interpretation of the DR Congo and FG Hemisphere case has come under criticism by many in the legal and business sectors in Hong Kong, at the very least, it was carried out according to the specific proceedings of the Basic Law, and indeed the NPCSC has the authority to interpret the Basic Law.
But if the same interpretation is not applied to the seizure of Singapore's armoured vehicles, the authority of the NPCSC in interpreting the Basic Law for Hong Kong will become more questionable, to the detriment of not just Singapore-China ties.
It remains to be seen if Beijing will resolve the seizure of the armoured vehicles with wisdom and in keeping with Hong Kong law. A swift return of the vehicles to the Singapore Government will minimise the negative impact of the issue and bring about a win-win outcome for Singapore, Hong Kong and China.
• The writer is a British current affairs commentator based in Hong Kong. This article was first published in Chinese in Lianhe Zaobao.