In the past two weeks, all the government senior officials seemed to have turned into constitution experts and talked about whether Hong Kong has separation of powers. Frankly, I find this discussion a bit meaningless. Considering the economic challenge Hong Kong is now facing and the difficult situation the Chinese government is in internationally, stirring up this argument is not doing anyone any good. The only interpretation could be, as political loyalty has become the top priority, those Chinese and Hong Kong officials have already lost their minds.

Much can of course be written when discussing, academically, whether Hong Kong has separation of powers, like in the Basic Law, we can easily find many clauses related to administrative power, legislative power and judicial power being mutually checked and balanced. We can find clauses in Article 48, 49, 50, 52 and 76 mentioning the check and balance of administrative power and legislative power. For example, if an important bill has not been passed by the Legislative Council (LegCo), the Chief Executive can disband the council; but if the newly elected LegCo still refuses to pass the bill, then the Chief Executive must resign. You can imagine, the chance of such a constitutional crisis happening under the current political reality is minimal, but since the Basic Law has such clauses, it shows that legislative power was not designed to just be an ornament alongside administrative power.

In terms of judicial power, Article 35 of the Basic Law clearly states “Hong Kong residents shall have the right to institute legal proceedings in the courts against the acts of the executive authorities and their personnel.” In real practice, that means numerous judicial reviews, and since HKSAR was established, there are indeed many cases in which citizens have successfully won against government officials. It is evident that within Hong Kong’s political system, power has been divided among different departments to ensure mutual check and balance function, which Hong Kong citizens have long taken for granted, and the government officials have repeatedly emphasized this in the past.

So why have the senior officials suddenly provoked a dispute? Theoretically, all the above clauses would not just disappear because of such a dispute, it is pointless trying to reinterpret the wordings. But in reality, there is another set of logic existing within Hong Kong’s political system: Beijing’s logic. From the outside, it looks as if they are just bickering, but it could be them preparing for more Beijing interference in the future.

There are many clauses in the Basic Law mentioning mutual check and balance among the three powers, but at the same time, a lot of room was left for Beijing to get involved in Hong Kong’s politics when it feels the need to. Article 17 states the Standing Committee of the National People’s Congress (NPCSC) can return the law that has been passed by LegCo; Article 45 states Beijing has the right not to appoint the Chief Executive elected in Hong Kong; and (the being severely distorted) Article 158, the power of interpretation of the Basic Law, whether it is the administrative, legislative or judicial power, Beijing still has the right to override its decision; in other words, the separation of powers in Hong Kong is just empty words.

In recent years, both Chinese and Hong Kong officials have been highlighting time and time again that all powers from HKSAR come from Beijing and that was it. In this perspective, separation of powers is seen as “a misunderstanding” that cannot show the decisive position of Beijing. In fact, we can see Beijing being more and more willing to directly get involved in Hong Kong’s affairs or exploit various mechanism within the Basic Law that allows Beijing to interfere with Hong Kong. For example, the legislation of Hong Kong national security law is, on paper, in accordance of Article 18 of the Basic Law to be listed in Annex III, but its clauses are obviously contradicting the Basic Law itself. It means in reality, no one in Hong Kong can stop Beijing from violating the Basic Law in order to interfere with Hong Kong.

It seems to me this discussion of whether Hong Kong has separation of powers is a bit similar to people’s argument on the “rule of law is dead” earlier. In theory, we could discuss this topic in terms of severity: whether it is half dead, completely dead, or has become a vampire; but more importantly, it is how we should face the current situation politically: should we use that remaining bit of principle to continue to argue, or simply declare the reality is now different.

For foreign governments and businesses, they could in the past still pretend that Hong Kong has a sound separation of powers. Although the legislative power is dominated by the pro-Beijing camp, it still looks like a structure that has the power to mutually supervise. Now that all the Chinese and Hong Kong officials have become the wolf warriors, destroyed this illusion themselves and told the world “we do not have separation of powers.” Foreign governments and businesses can no longer turn a blind eye but to adjust their Hong Kong policy, whether they want to or not. Why would these officials think it is a good idea now to further damage Hong Kong’s international image? Ordinary people like me will never understand how their genius minds work.

Hong Kong Public Opinion Research Institute (PORI) has last Friday issued a poll about the separation of powers, with 63% of respondents against the saying of “Hong Kong does not have separation of powers.” Hong Kong government should actually be happy about that. Imagine how would Hong Kong be affected internationally if a vast majority of Hong Kong citizens agree that, Hong Kong really does not have the separation of powers?

(Leung Kai Chi, current affairs commentator)

Click here for Chinese version

---------------------------------

Apple Daily’s all-new English Edition is now available on the mobile app: bit.ly/2yMMfQE

To download the latest version,

iOS: bit.ly/AD_iOS

Android: bit.ly/AD_android

Or search Appledaily in App Store or Google Play