Hong Kong Chief Executive Carrie Lam said at a press conference on Tuesday that the city no longer has any meaningful separation of powers between the executive branch, legislature, and judiciary.
She insisted Hong Kong’s limited autonomy remains alive, but much more limited, saying “any power we enjoy here in Hong Kong is granted to us by the central leadership.”
“There is no separation of powers in Hong Kong,” she added. “Our high degree of autonomy doesn’t mean we have total autonomy,” said Lam.
“Our executive, legislative, and judicial arms of government aren’t separate as they would be … in a constitutional political system. The executive, legislative, and judicial branches … balance each other and cooperate with each other, but the ultimate authority lies with the appointed representative of the Central People’s Government, namely, the chief executive,” she elaborated, as reported by Radio Free Asia (RFA).
RFA described Lam’s press conference as “the starkest admission since China imposed a draconian national security regime on Hong Kong that the city is no longer regarded as a separate jurisdiction, and that the ruling Chinese Communist Party is now treating it like anywhere else in China.”
The outlet also noticed that right about the time Lam was making these comments, the much more expansive description of separated powers that has been sitting on the Hong Kong government’s website since 2011 was quietly deleted.
Pro-democracy lawmaker Dennis Kwok pointed out that educational materials pertaining to separated government have also been erased. In fact, Lam made her comments in support of Education Secretary Kevin Yeung’s decision to edit the material out of school textbooks.
Yeung said this was done because the so-called “Liberal Studies” curriculum was supposedly radicalizing students by filling their heads with subversive Western ideas about limited government. Another subversive idea purged from the textbooks was the bloody Tiananmen Square anti-democracy crackdown in July 1989, an event the Chinese Communist Party has been trying to erase from history. An online petition from teachers’ groups demanding restoration of the deleted textbook material has accumulated over 10,000 signatures.
“Every so often someone will make this a topic — whether there is separation of powers in Hong Kong — they will cite some well-known persons or judges but there is nothing clearer than the Basic Law,” Lam said, referring to the set of rules that were intended to preserve Hong Kong’s autonomy.
Lam’s comments sparked a great deal of controversy from pro-democracy legislators, who argued this new definition of the Hong Kong government reduced its legislature and judiciary into mere rubber stamps for the Politburo in Beijing.
“I think this was a political move, in accordance with orders they have received,” Kwok speculated.
Evidently not everyone got the orders, because even pro-Beijing legislators like Junius Ho — among the fieriest of partisans for the Chinese central government — seemed taken aback by Lam’s comments.
Radio Television Hong Kong (RTHK) asked Ho for his take on the new non-constitutional order and was served quite the word salad in return:
“I believe that there is still separation of powers in Hong Kong”, lawyer and pro-establishment lawmaker Junius Ho told RTHK, in an apparent departure from Lam’s position.
But he immediately qualified his statement, saying while he thinks “there is a division of the obligations and also the responsibility [between the three arms of government]… it doesn’t mean that each facet itself can really be… independent in the sense that they can just do whatever they like without due regard, [or] having regard to the overall circumstances.”
Ho stressed that the overarching principle is that the executive, legislative and judicial arms of government must all work together for the good of Hong Kong.
“So we all believe that the big G — the big government itself — must include three divisions — namely the executive, the legislature, and also the judiciary — so all these three are interlinked, and interwoven with each other. Although they each have their own terms of reference and also the responsibility, at the end of the day, all these three divisions are responsible for the Hong Kong SAR, generally.”
Some of Lam’s other political allies, such as lawmaker Priscilla Leung, were arguing that Hong Kong has not enjoyed constitutional government since China took control back from the United Kingdom in 1997, and anyone who thought otherwise was fooling themselves. They said a few “checks and balances” were the most Hongkongers could hope for.
The chief of the Legislative Council, Andrew Leung, seemed to want no part of the controversy ignited by Lam’s remarks, saying on Tuesday that Hong Kong’s system includes abundant “checks and balances” and refusing to agree with Lam that the executive branch has supreme authority as the voice of Beijing on the island.
Legal scholar Johannes Chan of the University of Hong Kong countered that the Hong Kong Special Administrative Region (SAR) does have a “mini-constitution,” and it laid out a legal system that was much closer to the Western concept of divided government than Lam seems to think.
Chan argued that Lam’s brief for absolute dominion over Hong Kong’s legal system is “precisely contrary to the rule of law.”
“Beijing is under, I think, a sort of misunderstanding that the separation of powers means that Hong Kong enjoys powers which can ignore Beijing and so on,” he said.
Lam’s critics also cited a major 2014 address from Hong Kong Chief Justice Geoffrey Maw, who contended that Basic Law “sets out clearly the principle of the separation of powers between the legislature, the executive and the judiciary.”
Another strong legal brief in favor of separated powers was made in 2011 by Judge Patrick Chan of the Court of Final Appeal. RTHK reported on Tuesday that Chan’s presentation has been deleted from the Education Bureau website, purportedly as part of a “regular update of material.”
The Hong Kong Bar Association (HKBA) came out strongly against Lam on Wednesday afternoon, dismissing her assertions as “unfounded and inconsistent with Basic Law.”
The HKBA defended its position by citing the individual articles of Basic Law that laid out the separate and opposed powers of the executive, legislative, and judicial branches.
“The SAR, through the chief executive, is accountable to the central government, speaks to the SAR’s place within the constitutional order of China. It does not detract in any way from the clear provisions of the Basic Law setting out how local governance is to be conducted,” the association wrote.
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