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Hong Kong does not have separation of powers, only judicial independence, says pro-Beijing heavyweight

Pro-Beijing heavyweight Rita Fan Hsu Lai-tai has said that Hong Kong does not have separation of powers as it is not written in the territory’s mini-constitution.

Fan made her comment in response to the government’s unprecedented decision on Tuesday to file a judicial review and injunction in an effort to block two independence-leaning lawmakers from retaking their oaths in the Legislative Council on Wednesday. The government has been criticised for interfering in the internal affairs of the legislature and disregarding the principle of separation of powers.

Rita Fan

Rita Fan. File Photo: Apple Daily.

‘Only judicial independence’

Fan, a former president of the Legislative Council, said on Thursday: “I think it is understandable for the chief executive to file [a judicial review] to the court if he thinks he has such a duty after thinking it through.”

A member of China’s top legislative body, the Standing Committee of the National People’s Congress (NPCSC), Fan said that the NPCSC previously had a group discussion on Hong Kong, and “clearly explained” that the Basic Law does not mention separation of powers.

“The idea of separation of powers is only something brought up by some members of Hong Kong’s legal sector,” said Fan.

See also: Explainer: Separation of powers, judicial reviews and the legal bid to stop localist lawmakers

Fan said that the Basic Law only safeguards judicial independence, “meaning that judicial decisions should not be affected by the government or any influential people in Hong Kong.”

“I think it may not be completely correct to say that separation of powers is part of the framework of the Basic Law,” Fan concluded.

‘Completely wrong’

Lawyer Alan Wong of the Progressive Lawyers Group slammed Fan for “completely misinterpreting” Hong Kong’s mini-constitution.

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Photo: GovHK.

“I believe many lawyers and judges would disagree with Mrs. Fan’s interpretation of the Basic Law,” Wong told HKFP. “The idea of separation of powers is that the executive branch, the judiciary and the legislature keep each other in check to prevent abuse of power by any one branch.”

“Fan herself agreed that there is judicial independence. But if there is no separation of powers, how can there be judicial independence?” Wong said.

Progressive Lawyers Group member and lawyer Kevin Yam told HKFP that although Hong Kong’s political structure can be described as “executive-led,” it does not mean that there is no separation of powers.

“The chief executive and the government are answerable to the Legislative Council, and the courts also keep the chief executive in check,” said Yam. “There are also court cases affirming the principle of separation of powers.”

NPCSC interpretations

Wong said: “The courts have in the past made decisions based on the principle of separation of powers. If Fan is saying that there is no separation of powers, is she also saying that many past judgments were wrong?”

“If that’s the case, does she dare to ask the NPCSC to interpret the Basic Law?” Wong added.

NPCSC beijing

An NPCSC meeting. Photo: Gov.cn.

Article 158 of the Basic Law confers the power of interpreting the territory’s mini-constitution on the NPCSC. In other words, the NPCSC’s opinions are final and legally enforceable.

An NPCSC interpretation – which has happened on four occasions since the 1997 handover – is always controversial due to the public perception that Beijing is undermining Hong Kong’s judicial independence.

Fan said earlier that an NPCSC interpretation is not necessary at this stage.

Timing

Shiu Sin-por, the government’s top advisor and a member of the Chinese People’s Political Consultative Conference, also wrote in Ming Pao on Thursday that Hong Kong’s political system is not based on the principle of separation of powers. “It is not now, and will never be,” said Shiu.

Wong said that Fan’s and Shiu’s comments were meant to justify the government’s decision against criticisms that it is using the court to interfere in the internal affairs of the legislature.

“The government also didn’t argue in court that there is no separation of powers,” said Wong. “It just couldn’t justify its action.”

Baggio Leung Yau Wai-ching

Baggio Leung and Yau Wai-ching. Photo: Stanley Leung/HKFP.

In a speech in 2014, Chief Justice Geoffrey Ma said: “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.”

The High Court held in a judicial review in 2007: “The Basic Law enshrines the separation of powers. A reading of the [Basic] Law makes it evident that the executive, the administration and the legislature are each to perform their constitutionally designated roles in a co-ordinated and co-operative manner for the good governance of Hong Kong.”

Former president of the Legislative Council Andrew Wong Wang-fat has said that it is unwise of the government to challenge the ruling of the legislature’s president.

On Tuesday, the government lost in its legal bid for an interim injunction against pro-independence lawmakers Yau Wai-ching and Sixtus Leung Chung-hang of Youngspiration to block them from retaking their oaths, but the court granted leave for judicial review to the government. A hearing is scheduled for November 3.

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How is the government trying to prevent elected Youngspiration politicians from retaking their oaths as lawmakers?

Text adapted from AFP:  Hong Kong‘s leader sparked fury after he launched a court bid against two pro-independence lawmakers which could block them from taking up their parliamentary seats.

Baggio Leung Yau Wai-ching

Baggio Leung and Yau Wai-ching. Photo: Stanley Leung/HKFP.

Hong Kong was handed back by Britain to China in 1997 under an agreement protecting its freedoms for 50 years, but there are concerns those liberties are being eroded. Rising tensions have sparked calls for Hong Kong to break completely from Beijing and a new wave of legislators who were voted in last month support independence and self-determination.

Chief executive Leung Chun-ying’s late-night court bid on October 19 came after new pro-independence lawmakers Yau Wai-ching and Baggio Leung draped themselves with “Hong Kong is not China” banners while taking their oath of office on October 12 in the Legislative Council (Legco)Hong Kong‘s lawmaking body.

The oath specifies Hong Kong is a special administrative region of China.

The pair’s pledges were rejected after both refused to pronounce China properly. Yau was heard to replace the words “the People’s Republic of China” with “the People’s refucking of Zeena”.

Newly-elected Legco president Andrew Leung – a pro-Beijing lawmaker – had indicated he was prepared to give them a second chance and both were expected to take the oath again Wednesday morning.

But at the eleventh-hour the justice department, acting for the chief executive and the justice secretary, sought a review of that decision, arguing they should be disqualified based on their first oath.

The Legco president opposed the application.

In a hearing Tuesday night at the High Court, Baggio’s lawyer Hectar Pun said his client “does not accept that the chief executive has any standing to mount any legal proceedings”.

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Hectar Pun. Photo: Stanley Leung/HKFP

But department of justice counsel Johnny Mok said the lawmakers had brought the trouble upon themselves.

Judge Thomas Au refused to grant an application for an interim injunction against the oaths being retaken Wednesday.

But he agreed to allow the requested judicial review into the decision to give them a second chance, which will go ahead on November 3.

It is unclear how the judicial review will affect their future as lawmakers if they are successfully sworn in on Wednesday.

Baggio described the legal bid as a “political decision”, and accused the chief executive of ambush.

What is a judicial review?

Judicial review is a formal mechanism of evaluating the decision-making process of public bodies. It mainly reviews administrative decisions they make, and looks at whether a law or administrative decision is compatible with the Basic Law, Hong Kong’s mini-constitution.

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Photo: HKFP.

An example of judicial review of an administrative decision is Choi Hoi-dick v. Secretary for Home Affairs in 2007, when lawmaker Eddie Chu unsuccessfully challenged the legality of the government’s refusal to declare the Queen’s Pier a “monument.”

For a judicial review of the constitutionality of a law, an example would be Leung TC William Roy v. Secretary for Justice in 2006, in which the Court of Appeal held that the law prohibiting consensual male homosexual sex under age 21 was discriminatory based on sexual orientation and hence unconstitutional.

What is the separation of powers?

separation of powersSeparation of powers refers to the division of government into distinct branches – the executive, legislature, and judiciary – to prevent any one branch from overstepping their constitutional roles and abusing concentrated power.

The executive is generally referred to as the “government,” which oversees the daily administration of the territory’s bureaucracy. The Legislative Council is the legislature or parliament of Hong Kong, while the judiciary includes all levels of courts.

However, the constitutional powers of the three branches in Hong Kong are not equal. For example, under Article 74 of the Basic Law, lawmakers can only introduce bills relating to government policies with the consent of the chief executive, and cannot introduce bills relating to public expenditure, political structure and the operation of the government. This limits the lawmaking power of the legislature.

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Court of Final Appeal. Photo: GovHK.

That said, the judiciary is generally reluctant to interfere in the internal affairs of the legislature. In Leung Kwok Hung v. President of the Legislative Council in 2007, lawmaker Leung Kwok-hung unsuccessfully challenged the rule that prevents legislators from amending bills that have an impact on public expenditure. Leung also raised the issue of whether the court has jurisdiction over the legislature.

In holding that the court does have jurisdiction over the legislature, the Court of First Instance gave a word of caution that such jurisdiction, “having regard to the sovereignty of LegCo under the Basic Law, should only be exercised in a restrictive manner.”

Could Beijing interpret the Basic Law in the case of the Youngspiration politicians?

Possibly. Whether the Court of First Instance rules in favour of the government or not, the parties can appeal to the Court of Appeal or the Court of Final Appeal, Hong Kong’s top appellate court.

In the event that the Court of Final Appeal agrees to hear the appeal, the court may decide to refer the case to China’s top legislative body, the Standing Committee of the National People’s Congress (NPCSC). It has only done it once, in Democratic Republic of the Congo v. FG Hemisphere, a case in 2011 concerning the principles of state immunity.

Article 158 of the Basic Law confers the power of interpreting the territory’s mini-constitution on the NPCSC. In other words, the NPCSC’s interpretations of the Basic Law are final and legally enforceable.

Hong Kong’s judiciary has debated the scope of the NPCSC’s interpretative power. In Ng Ka Ling v. Director of Immigration in 1999, the Court of Final Appeal took a strong stance in defending judicial autonomy. But about a year later, in Lau Kong Yung v. Director of Immigration, the Court held that the NPCSC’s power is “plenary” in that it can interpret all of the provisions of the Basic Law at anytime.

The Court of Final Appeal and the National Emblem.

The Court of Final Appeal and the National Emblem. Photo: Stand news and Wikimedia Commons.

Is there any precedent for Beijing interpreting Hong Kong's Basic Law?

The NPCSC has interpreted the Basic Law on its own initiative once, in a case relating to the election method for choosing the chief executive in 2004.

In turn, the Hong Kong government has asked the NPCSC to interpret the Basic Law twice: first in Ng Ka Ling in 1999, when the government disagreed with the Court of Final Appeal’s decision entitling all Chinese citizens with Hong Kong parents to the right of abode. Secondly, in the case of former chief executive Donald Tsang, when he asked the NPCSC in 2005 to interpret the law related to the term of office of chief executives when replacing predecessors who vacated office before their terms expire.

Such interpretations are always controversial due to the public perception that Beijing is undermining Hong Kong’s judicial independence.

What legal basis does the government have for this judicial review?

The government has argued that the oaths of Youngspiration’s incoming lawmakers Yau Wai-ching and “Baggio” Leung Chung-hang contravened Article 104 of the Basic Law, and the Oaths and Declarations Ordinance (Cap. 11).

Article 104 of the city’s mini-constitution stipulates: “When assuming office, the Chief Executive, principal officials, members of the Executive Council and of the Legislative Council, judges of the courts at all levels and other members of the judiciary in the Hong Kong Special Administrative Region must, in accordance with law, swear to uphold the Basic Law of the Hong Kong Special Administrative Region of the People’s Republic of China and swear allegiance to the Hong Kong Special Administrative Region of the People’s Republic of China.

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Photo: StandNews.

Section 21 of the Oaths and Declarations Ordinance lays down the consequence of non-compliance. It says: “Any person who declines or neglects to take an oath duly requested which he is required to take by this Part, shall – (a) if he has already entered on his office, vacate it; and (b) if he has not entered on his office, be disqualified from entering on it.

Are there past cases of lawmakers being allowed to retake their oaths?

In 2012, former lawmaker Raymond Wong Yuk-man replaced words such as “Republic” and “Special Administrative Region” with coughs in his first swearing-in attempt. Wong’s oath was only rejected after former Legislative Council president Jaspser Tsang was elected and revoked his oath.

In his second swearing-in, Wong read the full names of China and Hong Kong at an unusual pace, and shouted “Overthrow the Chinese Communist regime, down with CY Leung” immediately after his pledge.

Despite protests by pro-Beijing politicians, Tsang accepted Wong’s second oath.

Hong Kong does not have separation of powers, only judicial independence, says pro-Beijing heavyweight