Hong Kong must reject all pressure on judiciary to do the government’s bidding

Although separation of powers is not mentioned in the Basic Law, it is the de facto principle that underlies the independence of the city’s judiciary. The pro-Beijing camp must stop its attacks on the courts’ credibility

Albert Cheng

Published: 9:15am, 18 Sep 2020

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The removal of the phrase “separation of powers” from liberal studies textbooks in Hong Kong has played out in a similar way to last year’s extradition bill saga. The move was supported by Secretary for Education Kevin Yeung Yun-hung, then endorsed by Chief Executive Carrie Lam Cheng Yuet-ngor and Secretary for Justice Teresa Cheng Yeuk-wah. In separate statements, the central government’s liaison office and Hong Kong and Macau Affairs Office chimed in and gave the final word.

The political intent – to ensure “cooperation of the three powers” – is clear.

Separation of powers is the cornerstone of Hong Kong’s “one country, two systems” framework. Hong Kong people’s confidence about the 1997 handover is rooted in this core principle. It is true that “separation of powers” is not spelt out in the Basic Law; the same can also be said for the so-called “executive-led system” touted by the government.

The phrase “separation of powers” was not inserted in the Basic Law, the city’s mini-constitution, because Deng Xiaoping opposed the idea. Deng believed that this principle from Western democratic countries was not entirely applicable to Hong Kong.

However, the spirit of it is embodied in the Basic Law – the division of powers between the administration, the judiciary and the legislature are clearly mapped out with checks and balances among them.

In fact, the two chief justices since the handover, Andrew Li Kwok-nang and Geoffrey Ma Tao-li, as well as the former Chief Judge of the High Court, Patrick Chan Siu-oi, have on different occasions affirmed the independence of the judiciary and spoken about the separation of powers.

However, ever since the 2003 mass protests that led to the shelving of the Article 23 national security bill, the scene has changed. The Chinese Communist Party has slowly tightened its control over Hong Kong and the central government’s liaison office has been granted more power, operating at times almost as a de facto “second government” in Hong Kong.

The executive-led governing model was first seen when then chief executive Tung Chee-hwa sought an interpretation of the Basic Law from Beijing over a Court of Final Appeal verdict on a right-of-abode case. It became more entrenched during Leung Chun-ying’s time in office. In the oath-taking saga, the president of the Legislative Council, Andrew Leung Kwan-yuen, invalidated the oaths of five new lawmakers during the swearing-in ceremony, triggering a chain of events that led to the disqualification of six.

Yau Wai-ching (left) and Sixtus Baggio Leung Chung-hang, seen here during an interview in August 2017, were among six lawmakers elected in 2016 who were eventually disqualified for improper oath-taking. Photo: Felix Wong

Under Carrie Lam, it has become normal practice to bypass Legco on major policy decisions, such as the regulation to ban the wearing of masks at protests, introduced last year.

Now, the judiciary is in the eye of the storm. Pro-Beijing media and lawmakers have openly criticised so-called “yellow judges” who are accused of favouring protesters. Lawmakers Holden Chow Ho-ding and Elizabeth Quat have even suggested setting up a committee to issue sentencing guidelines to judges on selected cases. Is that not seeking to undermine judicial independence?

Hong Kong’s judiciary treading an increasingly fine political line

The duo put further pressure on the judiciary by demanding it clarify remarks supposedly made by High Court judge Albert Wong Sung-Hau at a legal briefing in July for all magistrates. Wong’s remarks for judges to be impartial were seen by some as a warning to “blue judges” to be careful about letting their political opinions seep into judgments.

All this seems like a well-organised effort to exert pressure on the judiciary. Is the aim to force all judicial professionals to yield and ensure that the law serves the Communist Party’s political purposes? Chow and Quat’s accusations insult the courts and attack the judiciary’s credibility. All concerned should be held to account.

Hong Kong is undergoing its most difficult period since the handover. If the government insists on drifting away from the spirit of separation of powers and one country, two systems, Hong Kong will soon lose its status as a renowned international financial centre. The price to pay for that scenario would be huge.

Albert Cheng King-hon is a political commentator

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