By Lo Fung

Propelled by Beijing’s full-fledged effort, the entire SAR government, including important figures from the pro-Beijing camp, continued to escort the “no separation of powers” theory. That Secretary for Justice, surnamed Cheng, penned a long article arguing that entangling with the several words “separation of powers” is unnecessary, and stressed that the concept of the separation of powers is not applicable to Hong Kong, and arbitrarily using it causes misunderstanding. The obsequious yes-Chairman of the Legislative Council, Andrew Leung, also cooperated with his high-profile statement that Hong Kong has never had the separation of powers, be it before or after the Handover, and that the SAR government and the central authorities in charge of Hong Kong and Macao affairs needed to clarify to avoid confusion.

The number one person who spared the least effort to deny the existence of the “separation of powers” in Hong Kong has to be Carrie Lam. A few days ago, she once again publicly denied the theory of the separation of powers, and added that the multi-day debate has revealed the truth of the non-existence of the separation of powers to be more apparent. It is no surprise that Carrie Lam has fought so hard to deny the separation of powers. After all, she is the biggest beneficiary of the abolition of the constitutional arrangements. After this, Carrie Lam can justify herself as the core of the Hong Kong Special Administrative Region. Power overrides the legislative system and the judicial system, she can demand all Hongkongers to listen to her and follow her instructions at any moment.

However, how Carrie Lam and her senior SAR government officials' repeated denial of the separation of powers is nothing more than “calling a stag a horse”, nothing but the Nazi propaganda that “a lie told a thousand times becomes the truth” to confound black and white. In reality, it changes nothing, and does nothing to twist people’s understanding and thoughts.

Hong Kong is not a sovereign region, nor is it an independent political entity; but the constitutional framework for the separation of powers is not limited to sovereign countries or regions, any implementation of the rule of law rather than dictatorship is essentially based on the basic principle (some legal scholars also regard the news media as the fourth power to check and balance other authorities) of the separation of the three powers (separation of multiple powers). In fact, each power organ has its own responsibility, the essence of the separation of powers being that they are non-subordinate to, while checking and balancing each other. When the power of individual officials or administrative organs are placed above other structures and to demand their cooperation is basically the centralization of power towards an authoritarian system. This not only contradicts the diverse, open Hong Kong society, but also completely betrays the provisions of the Basic Law and the original intent of the legislation.

Many considerations were taken into the formulation of the Basic Law as the mini-constitution of Hong Kong, the most important being the principle of “Hong Kong ruled of Hong Kong law”, proposed by Mr. Ann Tse-kai, former Vice-Chairman of the National Committees of the Chinese People’s Political Consultative Conference and the Vice-Chairman of the Committee for Drafting the Hong Kong Basic Law. The so-called “Hong Kong ruled of Hong Kong law” is to avoid the mainland-style rule of man, and to preserve the British legal system and principles, including the separation of powers and mutual checks and balances, before the Handover as the basis of Hong Kong’s constitutional order. Once this historical reason is understood, it explains why the separation of powers, the independence of the judiciary, and not allowing individual officials to override the law and legal system are the guiding ideologies for drafting Hong Kong’s mini-constitution. When Carrie Lam and others unanimously deny the principle of the three powers or the separation of powers, it is either that they are completely ignorant, or aim to expand their personal power by disregarding history and reality.

Looking at the substantive provisions of the Basic Law and how they are laid out, different power organs, including the administrative organ, legislative organ, judicial organ, and even regional organizations have been dedicated special chapters to explain their compositions, functions, powers, and responsibilities. There is neither confusion nor ambiguity. When drafting the provisions, the Drafting Committee carefully defined the different powers and responsibilities of each authority. For example, the legislature can move to impeach the Chief Executive under certain conditions; or that the judiciary has the right to interpret the Basic Law during specific trials and evoke the right to review unconstitutionality…The powers and responsibilities of other sub-level authorities, such as the National Audit Office, is also dedicated specific provisions, such that their powers will not be confusing or ambiguous.

From this layout, although the Basic Law did not directly pen the words “separation of the three powers” as provisions in the draft, the power organs check and balance each other, so that no particular officials or institutions will have the ability to override others, a consideration that was clearly thought about and cannot be denied. As for the so-called coordination of the three powers, there is absolutely no mention in either the provisions of the Basic Law or its original legislative intent, because what the relevant provisions emphasize is that each performs its own duties, the proper exercise of their respective exclusive powers, and forms a balanced mechanism that not unifies, but checks and balances each other. Is this not a manifestation of the separation of powers? Why did Carrie Lam and the senior SAR officials insist on calling black as white, and to disregard the provisions of the Basic Law and the original intent of the legislation?

Perhaps, the likeliest explanation is that Carrie Lam and her gang wish to pave the way for power expansion by denying the “separation of powers”, such that she and the government can monopolize their powers, to do as they please to carry out the grand schemes in hers and Beijing’s minds. However, within three years, Carrie Lam has caused such turmoil, anger, and chaos in Hong Kong; if more power goes into her hands, it will only bring about greater harm and deeper public grievances. In order to prevent Carrie Lam intensifying her man-made disasters, not only must we uphold the principle of the separation of powers, but must talk about it day after day, year after year!

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