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Hong Kong Basic Law

Hong Kong in the grip of a power struggle over oath-taking saga

It remains to be seen if the city enjoys separation of powers in the Western sense, or whether Basic Law reigns supreme

PUBLISHED : Friday, 18 November, 2016, 12:37am
UPDATED : Wednesday, 30 November, 2016, 10:57am

In the end, a much-anticipated hearing to determine the fate of two pro-independence localists in trouble over their oath-taking lasted no more than 10 minutes.

The pair, who were disqualified as lawmakers by a High Court ruling on Tuesday, earned a small reprieve yesterday when the Court of Appeal said their seats would not be declared vacant yet. This status would be pending their appeal against the disbarment. Their case for this will be heard next Thursday.

Thus far, both yesterday and at the first hearing to defend their stance, a centrepiece of the argument by Sixtus Baggio Leung Chung-hung and Yau Wai-ching is that the courts have no right to decide their fate. The courts, they said, should not interfere in what is an internal Legislative Council matter.

They argued that the judiciary had overstepped its role and breached the separation of powers principle, or, as the pair’s lawyers put it, “ignored the non-intervention principle” between the judicial, legislative and executive branches of government.

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Mr Justice Thomas Au Hing-cheung certainly did not agree with the argument, as he explained in his 56-page ruling that he was “of the clear view that the non-intervention principle as applied in Hong Kong does not cover the matters under ... these proceedings”.

“Hong Kong is very different as we have a written constitution of the Basic Law and the legislature is not supreme. These are important material differences in determining the scope and extent of the non-intervention principle,” he wrote in his judgment.

The judge underscored the supremacy of the Basic Law when he said the principle of non-intervention “is necessarily subject to the constitutional requirements of the Basic Law”.

Several legal experts agreed that the ruling had not damaged the separation of powers.

Professor Simon Young Ngai-man, associate dean at the University of Hong Kong’s law faculty, said the supreme status of the Basic Law was well known among legal professionals, but less so among lay people. “This is what we teach our students,” he said.

“Every country’s separation of powers has to be understood in the particular legal constitutional arrangement of each country. One of the things highlighted in the judgment is the significance of having a written constitution that is the supreme law. Your constitution is the supreme law, it is the Basic Law.”

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Au’s affirmation of the supremacy of the Basic Law appears to lend credence to the argument that Hong Kong’s constitutional framework is different from those of some Western democracies which are underpinned by the concept of separation of powers.

In September last year, Beijing’s liaison office director Zhang Xiaoming (張曉明) declared that Hong Kong’s chief executive had a special legal status that transcended the executive, legislature and judiciary. Beijing’s top man in Hong Kong sparked a row when he described the position of the chief executive as being at the core of an “executive-led, judicially independent political system”.

Au agreed that under Article 48 of the Basic Law, the chief executive had a constitutional role and duty to implement the mini-constitution. This was why he had a right to seek the court’s ruling to disqualify the two, after they used derogatory language in their oath-taking and pledged allegiance to “the Hong Kong nation”.

“The chief executive has a proper locus to bring these proceedings to implement Article 104 of the Basic Law to ensure that they are compiled with,” Au said.

Article 104 sets out that when taking office, public officials must pledge allegiance to Hong Kong as a part of China.

The judge was responding to the lawyers representing the two localists who argued that the chief executive should not have mounted a legal challenge against the Legco president’s decision to allow them a second chance to take their oaths.

Albert Chen Hung-yee, law professor at the University of Hong Kong and a member of the Basic Law Committee, said the doctrine of separation of powers did not necessarily mean a legislature would be off-limits to the courts in Hong Kong.

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“Judicial non-intervention is not absolute,” Chen said.

He suggested the court, under certain circumstances such as when the constitutionality of a legislative process is concerned, could step in, citing a decision made by the Court of Final Appeal in 2014 concerning lawmaker Leung Kwok-hung’s challenge to the Legco president’s exercise of power to cut short filibustering in the legislature.

In another case in 2009 relating to the exercise of Legco’s investigative powers, the court was also required to interpret the functions of the legislature. The court should intervene in Legco’s internal workings only when it was needed, he said.

“The view that the separation of powers means they do not interfere with one another is more a layman’s view,” said ex-lawmaker Ronny Tong Ka-wah, a former chairman of the Bar Association.

“[Tuesday’s ruling] was not against the separation of the three powers, but rather, it was an example of the check and balance between the three powers.”

Tong cited further examples of check and balance among the powers, including the Basic Law provision that allows lawmakers to impeach the chief executive.

Whatever the label, Hong Kong’s political system is characterised by checks and balances and distinct roles among the executive, legislature and judiciary.

For HKU law professor Johannes Chan Man-mun, separation of powers is actually protected by the Basic Law. “Compared with the executive-led political framework in colonial Hong Kong, the Basic Law has put in place a system of checks and balances that ensures no institution in the city has absolute control over other branches,” Chan said.

But Professor Song Xiaozhuang, of Shenzhen University’s Centre for Basic Laws of Hong Kong and Macau, argued that the long-established doctrine of the separation of powers in Western societies did not apply here at all.

He cited the British political system as an example, arguing: “While the UK parliament enjoys supremacy over other government branches, Hong Kong’s Basic Law takes precedence over other institutions in the city.”

But Ronny Tong pointed to the right of both principles – the supremacy of the Basic Law and separation of powers – to co-exist: “The Basic Law has defined that the governing of Hong Kong is divided into three parts. If there is no Basic Law, there is no separation of powers.”

Song also questioned Thomas Au’s claim in his judgment that he was unaffected by the National People’s Congress Standing Committee interpretation of Article 104 of the Basic Law.