Is cooperation possible between Hong Kong's legislature and executive?

Simon Young cites several cases involving constitutional conflict that, once resolved, have enabled Legco and the executive to gain a mutual understanding that fosters stable progress

PUBLISHED : Monday, 05 October, 2015, 4:44pm
UPDATED : Monday, 05 October, 2015, 5:41pm

As the Legislative Council prepares for its last year before the 2016 election, it is timely to reflect on its relationship with the executive branch. In his speech last month, Zhang Xiaoming , director of the central government's liaison office in Hong Kong, spoke of the Basic Law ideal that there be "cooperation" between the two branches and "checks and balances of power". With glass throwing in the chamber, endless filibustering and the ongoing saga of approval for the innovation and technology bureau, cooperation seems far from reality.

Zhang also made this ambiguous statement about the relationship: "There is cooperation in checks and balances and there are checks and balances in cooperation." Was he simply trying to be clever or was there something more substantive to those words? If it was the latter, then let me try to flesh out what might have been intended.

Despite years of passing the buck, the two branches managed to put their heads together within the time limit to pass a new law that has provided much more transparency and oversight to the process

Let's start with "checks and balances in cooperation". I think this means that checks and balances should be exercised with mutual respect for the authority and powers of the other branches. It implies that each branch knows its own limits and does not overreach into another branch's sphere of authority. In a 2013 judgment of the Court of Final Appeal, non-permanent judge Sir Anthony Mason took note of the limits on courts in judicial review. He wrote: "The separation of powers may deny jurisdiction to the courts when the function involved is exclusively the province of the legislature or the executive". Courts back off "where a political rather than a legal solution may be called for" or when "courts are not institutionally equipped or competent to deal with the issues". The legislative and executive branches should follow this example of having a self-awareness of, and respect for, the limits of each branch's authority, so as to achieve better cooperation.

Does "cooperation in checks and balances" mean anything different? I offer this interpretation. Since 1997, we have had several constitutional conflicts where one branch oversteps into another's actual or perceived sphere of authority. When these conflicts are finally resolved, the respective branches gain a mutual understanding that enables stable progress. Out of conflict, cooperation becomes possible.

The best case study of this kind of cooperation is from the constitutional conflict in 1999, when the National People's Congress Standing Committee overrode the Court of Final Appeal's first constitutional rights decision, on the right of abode. Writing recently about this episode in this paper, former chief justice Andrew Li Kwok-nang said that the episode was "very controversial", but "provided a salutary experience" and "led to a consensus [that] the Standing Committee's power to interpret should only be exercised in the most exceptional circumstances", apart from judicial references.

In 2002, the High Court struck down the executive's discretionary power to decide when a young person convicted of murder could be released from prison. It was unconstitutional for the legislature to transfer from the judiciary to an executive body discretion to determine the severity of punishment. Rather than appealing against the decision, the government worked with the legislature to pass amendments, which gave the power to judges to impose minimum terms of imprisonment.

READ MORE: Zhang Xiaoming’s controversial speech on Hong Kong governance: The full text

Another constitutional conflict occurred in 2005 when the High Court struck down law enforcement's interception and covert surveillance powers on the grounds that they violated the right to privacy. The chief executive's executive order was only administrative in character and not a law capable of regulating covert surveillance. The court gave the two branches six months to come up with a proper statutory scheme. Despite years of passing the buck, the two branches managed to put their heads together within the time limit to pass a new law that has provided much more transparency and oversight to the process.

A less well-known conflict occurred between the executive and legislative branches from 2003 to 2008. It concerned the chief executive's power to make regulations to implement mandatory United Nations Security Council regulations, which normally contain coercive measures. Our sanctions law allows these regulations to be made without any legislative scrutiny. Averting what was going to become a court challenge, the two branches struck an interesting compromise. A permanent Legco subcommittee was created under the House Committee to scrutinise all draft implementing regulations. In practice, this cooperation allowed for legislative scrutiny even though, strictly speaking, the law did not require it.

READ MORE: No one is above the law: Hong Kong's former top judge Andrew Li hits back at Beijing official

Now, what about the recent conflict over political reform? It, too, was a constitutional conflict where a minority of legislators used the two-thirds voting mechanism as a check on what was perceived to be executive overreach on nomination conditions. Three-and-a-half months after the veto and a year on from Occupy Central, it is too soon to say whether mutual understanding and respect will prevail to enable progress to be made. When the first Legco veto took place in December 2005, it took more than 18 months and a chief executive election before a new round of public engagement was launched in the form of a green paper. That initiative led to the Standing Committee's 2007 decision, which laid down a timetable for democracy, representing some progress at that time.

I remain hopeful that we will once again achieve the ideal of realising cooperation out of conflict. But it is foolhardy to assume that the legislature will become more compliant in future. Constructive dialogue with mutual respect is ultimately needed to see through differences, get beyond conflict, and reach a new level of cooperation.

Professor Simon Young Ngai-man is associate dean (research) in the Faculty of Law at the University of Hong Kong