Debunking popular myths about Hong Kong's constitutional design and separation of powers

Regina Ip says the two Beijing officials who raised heckles with their contentious remarks on Hong Kong's political system were addressing what they saw as popular misconceptions

PUBLISHED : Saturday, 17 October, 2015, 9:30am
UPDATED : Monday, 19 October, 2015, 11:25am

In the run-up to elections, Beijing and Hong Kong officials have learned to steer clear of controversial issues which stoke emotions. Why, then, with the district council elections looming, did two influential Beijing officials - Zhang Xiaoming, head of the central government's liaison office in Hong Kong, and Chen Zuoer, former deputy minister of the Hong Kong and Macau Affairs Office - recently run the gauntlet of local opinion by arguing against the separation of powers in Hong Kong and urging de-colonisation?

READ MORE: Transcendent: the word at the heart of a battle to define Hong Kong's political system

Their speeches in fact provide plenty of telltale signs of the underlying causes of their angst. Chen lamented Hong Kong's declining economic performance, which not only lagged behind that of Singapore's, but also compared poorly with Macau in the efforts put into reform and restructuring.

Hong Kong seemed to have lost its vibrancy, self-confidence and positive energies, Chen bemoaned. Above all, Hong Kong has failed to find its place in the nation's grand scheme of development.

It is indeed true that separation of powers has never been practised here, not now, or before 1997

On the political front, Zhang made clear in his speech commemorating the 25th anniversary of the enactment of the Basic Law that he would not shun controversy in his exposition of the principles underlying the design of Hong Kong's political system. "Separation of powers" as practised in some Western countries is not part of Hong Kong's constitutional design, Zhang argued. The chief executive lies at the core of Hong Kong's governance. As head of the special administrative region and accountable to Beijing as well as the people of Hong Kong, the chief executive is the linchpin and "rises above the executive, legislative and judicial branches of the government".

Does it mean that the chief executive enjoys absolute power and is above the law? The recent charges laid against former chief executive Donald Tsang Yam-kuen for "misconduct in public office" put paid to such misconceptions.

Zhang's elaboration of the chief executive's "transcendent" position speaks volumes about the central authorities' concerns over persistent inadequate public understanding of Hong Kong's constitutional design under the Basic Law.

There are certainly a number of popular myths about Hong Kong's political system which need to be rebutted. First, it is indeed true that separation of powers has never been practised here, not now, or before 1997.

Before 1997, Hong Kong was truly "executive-led", in that after the Executive Council "advised" and the governor "ordered", as the minutes of Executive Council meetings would testify, government business would be put to the legislature for rubber-stamping. Until 1995, when all official members were withdrawn from the legislature, elected legislators were in the minority and had no real power to provide checks on the government.

READ MORE: Hong Kong chief executive is not above the executive, judicial and legislative powers - according to the Basic Law

That should surprise no one familiar with the English system. As Walter Bagehot pointed out in his classic work The English Constitution, the executive branch is the great centre of power and sets the legislative agenda. If the legislature fights the executive branch, the executive branch could dissolve it. "The English system, therefore, is not an absorption of the executive power by the legislative power; it is a fusion of the two," he wrote. Under the English system, Parliament functions to assist the executive branch in governing the country.

Nor is the separation of executive and judicial powers in the UK as neat and tidy as commonly believed. Until 2005, the Lord Chancellor was not only the cabinet minister responsible for the efficient and independent running of the courts, but also a member of the House of Lords, and the top judge.

The truth is, all drafters of a constitution have to work with the historical materials at their disposal. The Basic Law drafters worked with the realities of Hong Kong in the 1980s - a classic, executive-led colonial government with an independent judiciary but a fusion of executive and legislative powers.

The introduction of elections to the legislature created stress in the relationship between the executive and legislative branches, as all elected politicians, by nature, are covetous of publicity and public approval, and compete with the executive branch for popularity and recognition.

READ MORE: Hongkongers' trust in CY Leung and Beijing at a lower point now than during Occupy Central

Successive administrations since 1997 have tried to build a "semi-connection" between the two branches by incorporating political party leaders into the Executive Council. The management of that tricky relationship requires considerable skills.

As if this scenario were not complicated enough, Hong Kong's reunification with China added another all-important element - the sovereignty of China. Hence Zhang's key message: courts may be independent and the legislature may "check and balance" the executive branch, but all powers are, ultimately, subject to the overriding authority of the sovereign power, of which the chief executive is the agent.

As Bagehot said, a constitution needs to "gain authority" as well as to "use authority". That's why Zhang's work to explain and promote the Basic Law is never done, and Hong Kong's chief executive's task in implementing it is always challenging.

Regina Ip Lau Suk-yee is a legislator and chair of the New People's Party