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Hong Kong Basic Law

Hong Kong 'separation of powers': Why Beijing is laying down the law on who's in charge

Declaring that the chief executive has overriding legal status shows the central government wants to set the record straight on its authority

PUBLISHED : Wednesday, 16 September, 2015, 3:06am
UPDATED : Wednesday, 16 September, 2015, 4:03pm

When Beijing's liaison office director Zhang Xiaoming declared last weekend that Hong Kong's chief executive had a special legal status that transcended the executive, the legislature and the judiciary, he knew well his remarks would spark a fresh row.

"But we should state our positions while promoting the Basic Law. That's why I believe there is no need to avoid controversy," he said at a seminar marking the 25th anniversary of the promulgation of the city's constitution.

Emphasising Hong Kong's political system did not exercise the separation of powers, Beijing's top man in Hong Kong described the position of chief executive as being at the core of an "executive-led, judicially independent political system".

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

"The chief executive's power is not limited to leading the Hong Kong administration … What is being implemented is the system led by the chief executive."

As expected, Zhang's comments drew fire from the legal sector and pan-democrats. The Bar Association said it would be regrettable if Zhang's views were taken to mean that the chief executive was superior to the three government branches.

Civic Party leader and former Bar Association chairman Alan Leong Kah-kit said Zhang raised the status of chief executive onto a pedestal "like an emperor", while Martin Lee Chu-ming, a drafter of the Basic Law and founding chairman of the Democratic Party, said Zhang was trying to rewrite the Basic Law.

Secretary for Justice Rimsky Yuen Kwok-keung came to Zhang's defence, saying the chief executive would never be "an emperor" as the Basic Law stipulates legislative and judicial supervision of him.

Read more: No one is above the law, says Hong Kong’s top judge in surprise rebuke to leader CY Leung's defence of his 'transcendent' position

What prompted Zhang's statement and what was it meant to achieve?

Academics believe Zhang's move is part of Beijing's attempts to clear what the central government sees as the misunderstanding of some Hongkongers about the Basic Law and the relationship between the central government and Hong Kong.

It is seen as part of the same tenor that Beijing has adopted since the release of the State Council's white paper last year, which stresses the central government has "comprehensive jurisdiction" over Hong Kong.

They say Beijing is unhappy with the defiance over its authority shown by some Hongkongers in the debate on how to elect the chief executive in 2017, such as calling for public nomination of candidates.

Read more: Why did Beijing stir the pot and spook Hongkongers?

Professor Lau Siu-kai, vice-chairman of the Chinese Association of Hong Kong and Macau Studies, says: "Beijing realises in recent years some Hong Kong people have misunderstood 'one country, two systems' and assume that the central government's power over Hong Kong is confined to national defence and foreign affairs.

"The rise of nativism in Hong Kong further provokes the nerve of the central government, which fears some Hongkongers want to turn the city into an independent political entity. Beijing now takes it more seriously and is trying its best to recover the lost ground in public discourse."

No opposition

That Beijing is doing so after the feel-good atmosphere created by a meeting between its representatives and pan-democrats shows it will brook no opposition.

The statement by Zhang came barely two weeks after a meeting between Fei Wei, deputy director of the State Council's Hong Kong and Macau Affairs Office, and core members of the Democratic Party.

Zhang is not the first to stress that the status of the chief executive transcends that of the executive, legislature and the judiciary. In his book On Hong Kong Basic Law, published in 2003, Xiao Weiyun, a mainland drafter of the Basic Law, wrote that "the chief executive is the head of the Hong Kong special administrative region and his legal status is above the executive authorities, legislature and the judiciary.

"The political system adopted by the Basic Law is not the model of the separation of powers although there is an element of check and balance between the executive and legislative branches in Hong Kong's political structure. It is different from the separation of powers and what is being implemented is the system led by the chief executive," he wrote.

Xiao's views went largely unnoticed at the time. But Zhang's official capacity lends more weight to the argument for the chief executive to have a special status that transcends the three branches of government.

To be sure, the debate first began in the early days of the drafting of the Basic Law in the mid-1980s. In a report submitted to the Basic Law Drafting Committee in November 1986, the committee's political sub-group said members argued that in principle, the special administrative region should adopt the model of the separation of powers among three branches of government.

"There was no objection at our meetings to the principle of judicial independence, check and balance between the executive and legislative branches," the report said.

Deng Xiaoping's objections

A total of 59 members served on the drafting committee, 23 of them from Hong Kong.

But Deng Xiaoping, then paramount leader, rejected the idea of a separation of powers for Hong Kong's post-handover political structure. Speaking during a meeting with members of the committee in April 1987, Deng said it would be inappropriate for Hong Kong's political system to copy the mode of "separation of three powers".

Rao Geping, a mainland member of the Basic Law Committee, also noted there were calls to adopt the model of the separation of powers and that the idea was supported by some mainland drafters.

"The concept of the separation of powers is applicable only to sovereign states, but Hong Kong is just a special administrative region. Complete separation of powers among the three branches of government would contradict the central government's jurisdiction over Hong Kong," he said. "That's why Deng Xiaoping made his position clear in 1987."

Rao, a Peking University law professor who has studied the Basic Law for three decades, said the political structure adopted in the Basic Law was the executive-led system.

But he added: "The fact that the separation of powers is not practised in Hong Kong doesn't mean there is no check and balance among the three branches."

Neither the phrase "executive-led system" nor "the separation of powers" is stated in the Basic Law. But mainland officials and academics have argued that the "executive-led system" is embedded in various provisions in the city's mini-constitution.

Hardening stance of Beijing

In the first few years after the handover, Beijing officials often refrained from stating their positions on Hong Kong affairs to avoid controversy.

But that stance changed, observers say, after 500,000 people took to the streets to protest against proposed national security legislation on July 1, 2003.

The following year, Beijing asserted its power to be the final arbiter of Hong Kong's political system through the interpretation of the Basic Law. In June last year, Beijing went the extra mile to spell out its unquestioned authority over the city through the release of the white paper.

The document stresses the central government's "comprehensive jurisdiction" over Hong Kong, adding that some people in Hong Kong are "confused and lopsided" in their understanding of the "one country, two systems" policy. The white paper sparked fears the high degree of autonomy Hong Kong enjoys would be undermined.

Rao said some Hong Kong people did not have sufficient understanding of the Basic Law and he agreed there was a need to set the record straight.

Ray Yep Kin-man, a professor with City University's department of public policy, said the message behind Zhang's remarks was that challenges to the chief executive were not only targeting the executive authorities in Hong Kong.

"Beijing sees them as challenges to its authority as the chief executive is its representative in Hong Kong, It's really a dangerous sign," he said.

Moderate pan-democrat Ronny Tong Ka-wah is worried that efforts to improve ties between the central government and pan-democrats will be undermined, though the camp's response to Zhang's comments was milder than he expected.

"We were hoping we could put more effort into the relation between the central government and pan-democrats - why come out and make such remarks, knowing its effects?" he said.

Yep believes that Beijing is adopting a two-pronged approach - standing firm on matters it sees as crucial principles while maintaining a flexible stance on other issues, such as dialogue with pan-democrats.


Separation of powers or a free hand to rule?

"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 those of Britain and the United States. I am afraid it would not be appropriate for its system to copy those of Britain and the United States with, for example, separation of the three powers and a British or American parliamentary system."

Deng Xiaoping, April 16, 1987

"The executive authorities and the legislature should check and balance each other while co-ordinating their activities. To maintain Hong Kong's stability and administrative efficiency, the chief executive must have real power which, at the same time, should be subject to some restrictions."

Ji Pengfei, chairman of the Basic Law Drafting Committee, March 28, 1990

"The chief executive is the head of the Hong Kong special administrative region and his legal status is above the executive authorities, legislature and the judiciary. The political system adopted by the Basic Law is not the separation of powers although there is an element of check and balance between the executive and legislative branches in Hong Kong's political structure. It is different from the separation of powers and what is being implemented is the system led by the chief executive."

Xiao Weiyun, mainland drafter of the Basic Law, 2003

"The Hong Kong system involves checks and balances between the executive, the legislature and the judiciary."

Former chief justice Andrew Li Kwok-nang's speech at the opening of the 2010 legal year, January 11, 2010

"The Basic Law sets out clearly the principle of the separation of powers between the legislature, the executive and the judiciary, and in quite specific terms, the different roles of the three institutions."

Chief Justice Geoffrey Ma Tao-li's speech at the opening of the 2014 legal year, January 14, 2014

What it says in the Basic Law

Article 43 The Chief Executive shall be the head of the Hong Kong special administrative region and shall represent the region. The Chief Executive shall be accountable to the Central People's Government and the Hong Kong special administrative region.

Article 48 The Chief Executive's powers and functions include signing bills passed by the Legislative Council and promulgating laws, to appoint or remove judges of the courts at all levels in accordance with legal procedures, and to decide on government policies and to issue executive orders.

Article 64 The executive branch must abide by the law and be accountable to the Legislative Council of the region.

Article 73 Legco has the power to introduce bills, endorse the appointment and removal of judges in the Court of Final Appeal and the Chief Judge of the High Court, and to file a motion charging the Chief Executive with serious breach of law or dereliction of duty in a process that can lead to impeachment after an investigation by the judiciary

Article 85 Hong Kong's courts shall exercise judicial power independently, free from any interference.