Let me ask you a question. If a man has a pet, and you’re told it stands on four legs, barks, wags its tail, and responds to the name ‘Barkley’, then is my pet a dog, a goldfish, or a pony?

This is not a trick question, but rather it is the very type of question that appears to be tripping up the leaders of our government.

On Monday, September 1, Secretary for Education, Kevin Yeung, stated that school textbooks should not mention the separation of powers because it is not in the Basic Law and, therefore, the phrase should be expunged from textbooks. At a press conference, the Chief Executive was asked for her comments about this and she said she agreed with the Secretary for Education adding there was no room for ambiguity over Hong Kong’s constitutional order. She then went on to school us saying that as Chief Executive she was not just head of the government, but head of an “executive-led” system because she had the power to appoint judges and approve legislative budgets. For good measure, she noted that all these powers of the Government of the Hong Kong Special Administrative Region derive their authority from the Central People’s Government.

While it is correct to say that the Basic Law does not expressly use the term ‘separation of powers’, it is not correct to say that the Basic Law does not create a system of governance based on a separation of powers. Even a most cursory reading of Basic Law tells us that this is what is intended, from both its structure and its substance, as the Basic Law sets out that the executive, the legislature, and the courts have separate and different constitutionally designated powers of governance. You can see these distinct divisions laid out in each of different sections in Chapter 4 of the Basic Law – with a section dealing with each of the executive, legislative, and judicial powers. That the Basic Law enshrines a separation of powers has been consistently applied and followed by the courts in Hong Kong in judicial review cases, and has long been endorsed in extra judicial comments by the current and former Chief Justice of the Court of Final Appeal. That means there is very little doubt about that despite it not using the phrase ‘separation of powers’ that is exactly what the Basic Law has created.

This is important because history has shown that absolute power corrupts absolutely. So, by dividing and delineating the power of government into three different arms that operate independently of each other, each arm can act as a system of checks and balances on the other. In this way, the arrangement serves to avoid excessive concentration of power in any one organ of government or any one person, reducing the potential for abuse and strengthening the Rule of Law. Neither the fact that the Chief Executive has certain powers affecting the other two branches (such as to appoint judges or to approve budgets), nor the fact that ultimate authority is derived from a higher national government detracts from this system of separation. These are in fact relatively common features in other places where there is a separation of powers. Asserting that Hong Kong is an ‘executive-led’ government and that there is no separation of powers only leads one to wonder if this is to explain or to provide cover for current or future actions that will blatantly offend the separation of powers. Will the government now expect to turn the legislature into a rubber stamp, approving whatever the Chief Executive proposes without question? Will judges be loyal only to the Chief Executive, and will they be expected to rule in a ‘correct’ manner? If so, then not only is this yet another alarming attack on the legal system and the Rule of Law in Hong Kong, it will also mean our system starts to behave strikingly like the system of government that exists in the mainland. But that is exactly what the drafters of the Basic Law did not want to happen, which is why it is prohibited by Article 5 of the Basic Law.

So, while this controversy arises every few years, even Barkley knows that if something walks like a dog, barks like a dog, and wags its tail like a dog, then it is a dog. There is no ambiguity indeed as to what it is, unless you’re trying to tell me that it’s a horse.

(Davyd Wong is a practising solicitor, the founder of Pro Bono HK, and was recently elected to the Council of the Hong Kong Law Society. The opinions expressed here are his alone, and do not constitute professional advice of any kind.)

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