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The Chinese and Hong Kong flags are flown outside Hong Kong’s Court of Final Appeal. Judicial independence is stipulated in the Basic Law; and whichever way we interpret “separation of powers” does not detract from that constitutional fact. Photo: AFP
Opinion
Opinion
by Alice Wu
Opinion
by Alice Wu

In Hong Kong, separation of powers has been a non-issue since 1987

  • Beijing’s position has been consistent since Deng Xiaoping made it clear that Hong Kong would not follow the Western model: political power is granted by the central government and the political system is executive-led, as laid out in the Basic Law
Since the drafting of the Basic Law in the 1980s, the separation of powers has been a sensitive political point. The power structure of Hong Kong, with the inherent and different roles the executive, legislature and judiciary branches play, seemed to be modelled on the Western notion of separation of powers among the three branches. But Deng Xiaoping himself had made it clear in 1987 that Hong Kong’s political system would not follow the Western model.
Yet, on the 10th anniversary of the implementation of the Basic Law, in 2007, Wu Bangguo, then head of the National People’s Congress, caused quite a stir just by pretty much echoing Deng’s opinion, and saying it would not be appropriate for Hong Kong to simply copy the Western political construct of separation of powers.
That was 13 years ago, and this issue has re-emerged, oh, every few years. Notably, Zhang Xiaoming, then head of the central government’s liaison office in Hong Kong, spoke on the subject in 2015. Then it was the turn of Wu’s successor, Zhang Dejiang, in 2017.

The point of contention hasn’t changed much over the years. Beijing’s position on the separation of powers has always been absolute: all powers are granted by the central government and Hong Kong’s political system is executive-led, as clearly laid out in the Basic Law. There is no room for ifs and buts here. The granting of powers is a sovereign issue.

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Hongkongers see it more as a separation of duties and roles among different branches of government. And over the years, “separation of powers” has been equated with judicial independence, and therefore, whenever the topic is broached, threats to judicial independence are brought up.

Judicial independence is stipulated in the Basic Law; and whichever way we interpret “separation of powers” does not detract from that constitutional fact. What we perhaps dislike is having to accept that even our judiciary free from influence is granted by the central government.

I hate to burst anyone’s bubble but “separation of powers” is not inherent and Hong Kong does not get to inherit it from its former colonial masters either, because, well, they don’t have it either. What they have in Westminster is a “fusion of powers”.

Does Hong Kong have ‘separation of powers’? It depends who you ask

Recently, at least two publishers of Liberal Studies textbooks took out the phrase “separation of powers”, and Secretary for Education Kevin Yeung Yun-hung supported the move – as did Chief Executive Carrie Lam Cheng Yuet-ngor. She laid out quite an argument too last Tuesday, though unfortunately, with Lam, everything she touches most certainly does not turn into gold.

By definition – and under the Basic Law – there is no separation of powers in Hong Kong. But that doesn’t mean it’s the end of the world, or that there is no division of responsibilities among distinct branches of government. We see this manifested in the legislature. Lawmakers pass laws but the bills are introduced by the executive. (Members’ bills are allowed, but with so many restrictions, it’s almost a joke.)

The legislature and executive have different roles, and there is a certain degree of checks and balances, but ultimately, the chief executive is answerable to Beijing. The fact that the current leader, even after making a kamikaze move like the extradition bill that led to months of social unrest, remains in power is testament to that.

These recent discussions actually remind me of the need for “mutual toleration” – recognition of the legitimacy of political opponents – and “forbearance” – self-restraint in the exercise of power. These two norms were described by Steven Levitsky and Daniel Ziblatt, professors of government at Harvard University and authors of How Democracies Die, who wrote: “Without robust norms, constitutional checks and balances do not serve as the bulwarks of democracy we imagine them to be.”

Without mutual toleration and forbearance, American democracy would be run to the ground by political polarisation, the two professors argued. I like to think of mutual toleration and forbearance as the oil that makes a machine work.

What might we need to make our non-American machine work? Back in 2008, when President Xi Jinping was vice-president, he said there should be mutual understanding and support among the executive, the legislature and the judiciary.

While there are many political models we can study, reference or follow, ultimately, it’s about making our system work for us.

Alice Wu is a political consultant and a former associate director of the Asia Pacific Media Network at UCLA

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