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The death of Hong Kong’s separation of powers|Lee Yee

蘋果日報 2020/09/03 08:26


Education Secretary Kevin Yeung recently said there was no separation of powers in Hong Kong. In a way, his statement is not wrong, nor is Carrie Lam’s remark that there was no separation of powers from her administration onwards. The education authority’s move to delete the phrase “separation of powers” from coming editions of liberal studies textbooks is in line with reality, and students should understand that Hong Kong is no longer a society with separation of powers between the executive, legislative and judicial branches.
Nevertheless, the absence of separation of powers is not stipulated in the Basic Law, nor is it a practice adopted after 1997. It actually started with Lam’s administration.
According to Lam, Hong Kong’s administrative, legislative and judicial powers are granted by the central government. However, there is no such statement in the Basic Law. Lam also said Hong Kong operated an executive-led system of governance. Yet, that is not mentioned in the Basic Law either. The mini-constitution says the Hong Kong Special Administrative Region (SAR) is directly under the central government, but this does not mean the city’s powers are directly granted by the central government. And just because the chief executive appoints judges does not mean the power of judges is granted by the chief executive. In the U.S., for example, the president appoints federal judges but that does not mean the judges’ power is granted by the president. Article 2 of the Basic Law states that it is the National People’s Congress that authorizes the Hong Kong SAR to exercise a high degree of autonomy in accordance with the provisions of the Basic Law. What that means is that Hong Kong’s various autonomous powers are granted by the Basic Law. If Hong Kong’s executive, legislative and judicial powers are granted by the central government, why would it be necessary to establish the Basic Law? The thing is, in theory, the central government can grant more power to Hong Kong today and less tomorrow. Following personnel changes within the central government at a given time, a new Chinese leader may have more or less power than his predecessor. It was for this reason that the Basic Law had to be drafted to set the scope of Hong Kong’s autonomy.
In democratic countries, leaders are elected by the people, but the oaths the leaders take concern how they will faithfully execute the rights and duties granted to them by the constitution. Their powers are granted by the constitution.
The gist of the separation of powers is that the three powers check and balance each other. For the checks and balances to be effective, independent operation of each power is the first precondition. The powers must not depend on each other. Independent operation means separation. Checks and balances are not merely “division of labor” as Lam said. The appointment of the chief executive and approval of funding by the Legislative Council have no impact on the independent operation of the three powers because each of the three powers does not depend on each other.
What is the core of separation of powers? In 2001, Andrew Li Kwok-nang, then first chief justice of the Court of Final Appeal, said: “Judicial independence is the core of separation of powers. Separation of powers refers to the separation of administrative, legislative and judicial powers, with checks and balances.” In other words, powers that can check and balance each other are powers independent of each other, and judicial power is the core of the separation of powers. Denying the separation of powers is tantamount to dismissing checks and balances of the three powers.
Lam claimed that despite the “executive, legislative, and judicial powers that Hong Kong enjoys”, the Basic Law and the Sino-British Joint Declaration only mentioned “independent judicial power and the power of final adjudication.” It should be pointed out that “independent judicial power” and “judicial independence” are two different concepts. The emphasis of “independent judicial power” is on Hong Kong’s judicial power not being under any influence from higher-level judicial or political authorities. This concept refers not only to the independent handling of individual judicial cases.
Beijing enacted the National Security Law in Hong Kong without following the procedures stipulated in the Basic Law. It is not a national law and therefore should not have been listed into Annex III of the Basic Law. The new legislation states that court cases involving the law have to be handled by judges appointed by the Hong Kong chief executive. In other words, there are no independent trials by the judiciary. Though enforced only in Hong Kong, the legislation can see offenders sent to mainland China. With that, there is no more independent judicial power in Hong Kong.
Without the core that is judicial independence, there are no checks and balances between the three powers and, therefore, the separation of powers has become a thing of the past.
As a matter of fact, since Leung Chun-ying took office as chief executive, Hong Kong’s political reality has become increasingly detached from the Basic Law. Article 22 of the mini-constitution states that no department of the central government can interfere in the affairs which Hong Kong administers on its own. But all leaders in Beijing and top government officials in Hong Kong have probably forgotten about this provision. None of them will remember that the late Deng Xiaoping had repeatedly vowed not to send cadres from mainland China to the Hong Kong government. With Beijing appointing its own cadre as the national security advisor in Hong Kong, we can see that from Lam’s administration onwards, there really is no more separation of powers. So she was right!
The Education Bureau’s move to delete the phrase of “separation of powers” from textbooks is, thus, a matter of course. Hong Kongers and the international community need to recognize that Hong Kong is no longer a place with independent judicial power or checks and balances.
(Lee Yee, a prominent political commentator in Hong Kong who embarked on a career of writing and sub-editing in 1956, has been contributing unremittingly political commentaries to the local press.)
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