My Take

In Hong Kong, separation of powers is an illusion

With smoke and mirrors, you can interpret the provisions in the Basic Law any which way; in the end, law is politics by other means

PUBLISHED : Saturday, 22 October, 2016, 1:23am
UPDATED : Saturday, 22 October, 2016, 1:25am

Who would have thought the use of a few derogatory terms and swear words by two political upstarts in their oath-taking as legislators could trigger a far-reaching debate about the constitutional foundation of Hong Kong?

Or so the pan-democrats have claimed. Their argument is that the Basic Law envisions a separation of powers between the three branches of government.

But does it? You don’t need to be a constitutional scholar, just a concerned resident, to ask the question. Right off, you know those people are making too clear-cut a case when it’s actually murky as hell.

Hong Kong is not a sovereign state; China is. The central government has all along denied such a political structure as the separation of powers even exists in Hong Kong.

This started with Deng Xiaoping (鄧小平) himself. In the late 1980s when Hong Kong and mainland representatives were drafting the Basic Law, Deng intervened directly against inserting any such “Western” doctrine into the mini-constitution.

In this, he was keeping with tradition. Marxists have always been against any such separation. Then as now, the central government instead propounded the doctrine of a unitary state, which has power and precedence over the legislature and the judiciary. A mini-version of the unitary state doctrine is Hong Kong’s so-called “executive-led” government, that is, at least as Beijing sees it.

No need for Beijing to intervene over Hong Kong’s oath saga, Basic Law Committee chairman says

Mainland legal scholars have followed Deng ever since in their interpretations of the Basic Law. But it’s not as clear-cut as they claim, either.

Our mini-constitution does have echoes of that “Western” doctrine in chapter four on political structure. It has separate lists of powers specific to the Legislative Council, the courts and the executive branch. That is clearly a model of some kind of separation of powers. Was Deng fooled into it or did he tolerate it? So pan-dems, some legal scholars and judges do have textual support for their case.

But then, Hong Kong is not an independent state or part of a federal system; rather, it is a city with some features of an autonomous state entity. Also, our system resembles a parliamentary rather than a presidential one with explicit separation of powers like the United States. So even by Western standards, any separation of powers in our case is necessarily weakened.

In the end, law is politics by other means. Who you think is right depends on who you side with politically.