By Lo Fung

Beijing’s effort in taking control of Hong Kong’s governance is getting bigger and uglier. With the full cooperation of Carrie Lam and her officials, the executive organ has taken on the likeness of a local government in China. Their mouthfuls of quick accusations towards opponents and experts of conspiracies breathe the air of Beijing’s arrogance. At the joint ’attack” of the National People’s Congress Standing Committee and Carrie Lam’s government, the legislative organ will soon become a “provisional parliament”, with its credibility greatly questioned, and its function of monitoring the government greatly doubted.

After subduing the executive and legislative organs, the judicial organ is the obvious next target of rectification. The pressure on the judiciary and judges by Beijing, the SAR government, and the pro-Beijing camp is increasing by the day. The repeated blows in the last week are foreshadowing the onset of a storm.

One of the most powerful moves is the removal of the foundation of judicial independence through education and ideology, which included the public denial of the “separation of powers” as an important constitutional pillar. The Secretary for Education, Kevin Yeung, known for being a yes-man, is suddenly “valiant”. Not only is he vigorously reviewing the educational materials, particularly the narratives of the “separation of powers” in liberal studies textbooks, but has also publicly stated that Hong Kong never had a “separation of power”, neither during the British-Hong Kong era, nor after the Handover. As such, textbooks should not use that to describe Hong Kong’s constitutional system.

After Secretary Yeung fired the shot, Carrie Lam immediately backed him publicly and emphasized that there is no “separation of powers”, while indirectly slamming the previous SAR governments for failing to clarify the constitutional facts, such that she must correct it with every effort. After Carrie Lam said the final word, other secretaries, including the Secretary for Justice, joined in to back her, by saying something along the lines of not needing to dwell on a few words, but that the executive, legislative, and judicial organs will perform their duties.

This change reminds one of two things: one is that the Chinese government adopts the one-party, or even one-person dictatorship, and requires the whole party and country to follow Xi Jinping alone. It not only does not recognize the rationality of the separation of powers, but regards it as a “poisonous weed” from the West that must be eradicated completely in China; two is that long before becoming the core, Xi Jinping had proposed that Hong Kong should implement a “cooperation of three powers” system, believing that this is the only way “one country, two systems” can be met. Under such circumstances and vying to show their loyalty, Carrie Lam and the officials naturally did not think twice about smashing to pieces the separation of powers, an important constitutional principle in Hong Kong, that has been effective for many years.

It is obvious that the independence of the judiciary, the common law system, including the interpretation of the law by judges, and the protection of basic rights and freedom of citizens are the essence of the principle of separation of powers. Beijing and the SAR government vigorously deny the separation of powers by placing the Chief Executive above the system, which means that not only is the principle of equality for all before the law hugely discounted, but that judiciary and judges can no longer check and balance the executive and legislature in accordance with laws and cases, and instead, have to consider whether to cooperate with the government, the policies, and political decisions. When the judges have to deliberate and second guess the opinions of the Chief Executive and the government, how does one talk about judicial independence anymore? And down goes the last barrier to civil freedom and rights. Therefore, although the denial of the separation of powers begins in the textbooks this time, the actual target is the courts and judges, and the independence of the judiciary.

Apart from the highest level of the government, John Letablere Litton, a veteran of the legal profession and a former judge of the Court of Final Appeal, has also joined forces. John Litton has always been conservative, and has a good relationship with Beijing. He had joined the official consulting structure as early as when the Basic Law was being drafted. Originally, it is absolutely common for judges or members of the legal profession to have different political stances. Foreign judges, such as the justices of the Supreme Court of the United States, have always had justices from both the Democratic and Republican parties. However, what Litton raised last week was not a political debate, but an infusion of a culture of “what he’s thinking”, particularly Xi Jinping’s will, into Hong Kong’s legal system. He asked the judges to be “brainwashed”, for this would be the only way out for the judicial system under “one country, two systems”. Litton condemned the local judges for putting too much emphasis on individual rights and freedoms, and underestimating collective security and rights.

However, the beauty and value of Hong Kong’s independent judicial system are that it allows judges to handle cases in accordance with the law and evidence, and will not cater to the government or dignitaries, nor give up legal principles and protection of personal rights in order to meet government policies or needs. In fact, the proper protection of individual rights and freedoms is the core value of the rule of law, and is the largest and most lasting public interest. If individual freedom is damaged for a momentary, short-term policy or personal will of the government or leader, the damage to the constitution would be irreparable. A large number of talents and capital will flee.

John Litton, such a veteran of the legal profession has actually asked the judges to learn to “know what to do”, to learn to gauge “political climate”; coupled with Carrie Lam’s government is using every effort to deny the “separation of powers”; not to mention crooks like Holden Chow and Elizabeth Quat repeatedly using “fake news” to attack the judiciary and judges, the Hong Kong judicial system is truly facing unprecedented assaults, and whether judicial independence and the rule of law will hold up is highly doubtful. When Hong Kong adopts the mainland-style “ruling by law”, the government’s power will not be checked and balanced. What is the value of such a Hong Kong? What is attractive about this place anymore?

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