BASIC LAW
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Hong Kong Basic Law

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

PUBLISHED : Wednesday, 16 September, 2015, 7:00am
UPDATED : Wednesday, 16 September, 2015, 10:30am

Editor’s note: On September 12, the Joint Committee for the Promotion of the Basic Law held a seminar on the 25th anniversary of the promulgation of the Basic Law. Zhang Xiaoming, director of the central government’s liaison office in Hong Kong, delivered a speech entitled “A Correct Understanding of the Characteristics of the Political System of the Hong Kong Special Administrative Region”. Read the Chinese version of the speech here.

 

Since the Basic Law was promulgated 25 years ago, and especially since Hong Kong was returned to China 18 years ago, people have developed a deeper understanding of “One Country, Two Systems” and the Basic Law. Today, although there are still people who do not give up on such ideas as “public nomination” and “party nomination”, it is undeniable that fewer and fewer people are holding the view that these ideas are in line with the Basic Law. From this perspective, although the goal of political reform at the time, that is, universal suffrage for the chief executive – was not achieved, yet achievements have been significant for the promotion of the “One Country, Two Systems” principle and the Basic Law.

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For a correct understanding and implementation of the Basic Law, we also need the courage to clarify some erroneous or ambiguous points of view. On this occasion, I would like to talk about problems regarding the political system of the HKSAR.

What are the characteristics of the HKSAR’s political system? For a long time, there have been many different views about this issue.

First, it should be clear that Hong Kong has not been implementing the political system characterised by the “separation of powers”, neither before nor after its return to China.  Mr Deng Xiaoping made this very clear during his meeting with the Hong Kong Basic Law Drafting Committee on April 16, 1987. He said: “Hong Kong’s system of government should not be completely westernised. For a century and a half Hong Kong has been operating under a system different from that of Britain and of the United States. I am afraid it would not be appropriate for the Hong Kong system to copy that of Britain or the United States with, for example, separation of the three powers and a British or American parliamentary system. Nor would it be appropriate for people to judge whether Hong Kong’s system is democratic on the basis of whether it has those features ... We must be realistic and determine our system and our method of administration in light of our own specific conditions.” Here, we can see that the non-implementation of the “separation of powers” was an important guiding principle in the drafting of relevant provisions of the Basic Law. Another misunderstanding that we need to clarify is: we cannot simply presume that Hong Kong is implementing the “separation of powers” system simply because there are executive, legislature and the judiciary and that they exercise check and balance. If the system is understood in this way, we would find that there are very few countries or regions in the world which are implementing system of the separation of powers.

What kind of political system was eventually established under the Basic Law? On June 6, 2007, then National People’s Congress chairman Wu Bangguo gave a succinct exposition on the issue during a seminar marking the tenth anniversary of the implementation of the Basic Law. Wu stressed: “The most important feature of the HKSAR’s political system is that it is executive-led.” I think that we can consider fully describing the HKSAR’s political structure as follows: under the direct  jurisdiction of the central government, Hong Kong exercises an executive-led political structure with the chief executive at the core, where there are both checks and balances of power and cooperation between the legislative and executive branches, as well as an independent judiciary. This description can be succinctly summarised as an executive-led system with the chief executive at the core. Now, I would like to describe the characteristics of the HKSAR’s political system in four aspects:

Firstly, the political system of the HKSAR is a local political system. It is a completely new political system under a “One Country, Two Systems” principle which is equivalent to a local administrative region or a local regime with a high degree of autonomy under a unitary state. The high degree of autonomy of the HKSAR is subject to the authority of the central government, which has the power to decide the setting up of government institutions and their inter-relationships, as well as the development of the political system, including a universal suffrage system. There exists an inseparable relationship between the political system of the HKSAR and that of the nation. The former is not only a governance system within the HKSAR, but also an integral part of the governance system of the HKSAR as led by the Central Government. Given the positioning and attributes of this local political system, as well as the powers of the central government which transcends the executive, legislative and judicial organs of the SAR government, it has been determined that the separation of powers political system, which is normally based on a sovereign state with complete authority, is at best a point of reference for the HKSAR and cannot be applied to the HKSAR in its entirety.

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Secondly, the chief executive of the HKSAR holds the core position of the entire political system. This is the salient feature of the executive-led system of the HKSAR. Under the “One Country, Two Systems” principle, the central government does not directly manage affairs that are within the scope of autonomy of the HKSAR, nor get involved in the daily operations of the SAR government. So, the central government governs the HKSAR via the Chief Executive. Matters between the Central Government and the HKSAR, including foreign affairs and defence related to the HKSAR, the appointment and dismissal of principal officials and the interpretation of the Basic Law, are carried out through the chief executive. In accordance with the Basic Law, the chief executive has a double identity. He is not only the head of the HKSAR government but also of the special administrative region itself, and is accountable to both the HKSAR and the central government. The chief executive is appointed by the central government, and so he is accountable to the central government on behalf of the HKSAR when exercising his responsibilities including implementing the Basic Law and carrying out directives from the central government in regard of affairs as stipulated under the Basic Law. On the other hand, the chief executive is the head of the executive authorities of the HKSAR and is vested with wide-ranging powers of decision-making, the appointment and dismissal of senior officials.

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Not only that, the chief executive also has the responsibility of linking up with the legislature, and has the power of consent as to how the Legislative Council is formed. The chief executive has the exclusive right to present bills concerning special policy proposals related to public expenditure, the political structure and government operations. The chief executive has the right to reject bills passed by the Legislative Council which are not in the overall interest of the HKSAR. He or she also has the right to dissolve the Legislative Council if such refuses to pass a government budget or any other important bill introduced by the government. The chief executive is also responsible for linking up with the judiciary, and has the right to appoint some of the people on the independent committee that recommends judges  as well as judges of courts at all levels, and the right to pardon persons convicted of criminal offences or commute their sentences. Therefore, the chief executive is more than just a member of the administration, and his powers are not limited to guiding the SAR government. His or her identity as a “double chief” and the “dual responsibilities” gives him or her a special legal status that transcends the executive, legislature and judiciary. The chief executive is situated at the core position in the operation of the powers of the HKSAR while performing a pivotal role as a link between the central government, which transcends him or her, and the executive, legislature and the judiciary. This role is essential both for the chief executive to fulfil his or her duties for the gentral Government, and for the Central Government’s effective governing of the HKSAR.

Thirdly, executive power is in a predominant position compared with legislative power. The executive power of the HKSAR is seen in many different aspects such as political, economic, cultural and livelihood matters in Hong Kong society, and is directly related to the daily life of the general public. Compared with legislative power, the coverage of executive power is wider, the impact is more direct and the role is more active. The active role and predominant position of executive power is also reflected in its two aspects. Firstly, the government enjoys the overwhelming majority of the rights to introduce legislation. The SAR government drafts and proposes bills and proposals and submits them to the Legislative Council after discussions by the Executive Council. Secondly, legislative councillors cannot propose bills and make proposals related to public expenditure, the political structure or government operations, which can only be put forward by the government. Thirdly, bills and proposals put forward by the government should first be included in the agenda of the Legislative Council. Fourthly, legislative councillors must first obtain a written consent from the chief executive before they put forward bills and proposals related to government policies. Fifthly, bills proposed by the government are passed with half of the legislators’ votes, whereas bills and proposals raised by individual legislative councillors and their proposed amendments to government bills shall be voted under a separate vote count procedure. Sixthly, the chief executive has the “veto power in legislation”. This means any bills passed by the Legislative Council shall be signed and promulgated by the chief executive before taking effect, and that the chief executive can refuse to sign such bills and return them to the Legislative Council for re-discussion, and that a bill returned to the Legislative Council for re-discussion should be passed by at least two thirds of the votes in the council. Even if the bill has been passed by the Legislative Council again, the chief executive may dissolve the Legislative Council one time during his or her tenure if he or she again refuses to endorse the bill. Seventhly, although the government is responsible to the Legislative Council, this is limited to his regular reports to the Legislative Council and responses to queries from legislative councillors. The Legislative Council is not empowered to raise motions of non-confidence against the government in attempts to force the chief executive or any high-ranking official to resign. If the chief executive is suspected of committing a serious breach of law or dereliction of duty, impeachments by the Legislative Council can only be made by reporting it to the central government for decision. Eighthly, the chief executive has the power to decide whether officials or other personnel on official duty should testify before or give evidence to the Legislative Council. All this shows that the executive power is proactive in nature and has a predominant effect in the configuration of the three powers of the HKSAR.

Fourthly, executive and legislative powers restrict and cooperate with each other and the judiciary is independent. When we are talking about the executive-led nature of the HKSAR, it does not mean the executive power will be overwhelmingly large. Nor does it mean that the Legislative Council should give up on its role in monitoring the executive, nor that the exercise of legislative and judicial powers will be restricted.    

The executive branch enjoys bigger decision-making powers and is subject to checks and supervision by the Legislative Council. The Legislative Council enjoys legislative powers, but it is not a legislative-led system. Many provisions of the Basic Law are reflected in the executive-legislature relationship, where there is cooperation in checks and balances and there are checks and balances in cooperation.

Article 19 of the Basic Law specifies that the HKSAR shall be vested with independent judicial power, including that of final adjudication. This has established the principle of judicial independence.  To ensure the implementation of this principle, Article 85 stipulates that courts of HKSAR shall exercise judicial power independently, free from any interference. Members of the judiciary shall be immune from legal action in the performance of their judicial functions.

There have been hiccups during the actual operations of the political system of the HKSAR, particularly the occasional contradictions and frictions during the exercise of powers within the HKSAR. For instance, excessive filibustering in the Legislative Council has affected the effective operations of the executive-led system. There are many reasons for ineffectiveness and lack of smoothness in the operations of the executive-led system.  From a historical perspective, such problems are inevitable in the early stages of operation of a newborn political system. Objectively speaking, a period of adjustment is needed and many problems can only be solved when they are seen to arise. Most importantly, the leading principle and direction based on the executive-led HKSAR political system is to stay on course, because this is in line with not only the “One Country, Two Systems” principle and regulations in the Basic Law, but also in accordance with the actual circumstances of the HKSAR. This is also favourable for the SAR government to make decisions and implement policies effectively, for Hong Kong, as an industrial and commercial metropolitan city, to maintain its competitiveness in the face of intensifying competition at the international level. This is also advantageous to the interests of all sectors of society and to the prosperity and stability of Hong Kong. In the long run, this kind of political system with Hong Kong characteristics shall be perfected in practice and will demonstrate its vitality and superiority.

Although this is a controversial topic and my viewpoints might well spark controversy, I would like to take this opportunity to express my position; there is no need to avoid controversies that arise in promoting the Basic Law.