Hong Kong Politics & Protest

Hong Kong has separation of powers, says former ExCo convenor Chung Sze-yuen

Former Executive Council convenor Chung Sze-yuen has said that Hong Kong’s political system is based on the principle of separation of powers.

The 100-year-old politician rarely appears in public nowadays, but he regularly meets with veteran politician Allen Lee Peng-fei, one of his former pupils. Lee told local newspaper AM730 that Chung disagreed with recent comments by pro-Beijing figures such as Rita Fan that Hong Kong does not have separation of powers.

Chung Sze-yuen Allan Lee Pang-fei

Chung Sze-yuen (second left) attends a current affairs show hosted by Allan Lee Peng-fei (right). File Photo: Apple Daily.

The debate was ignited after the government filed a judicial review challenge against the legislature’s president over his decision to allow two localist lawmakers to retake their oaths.

Chung is of the view that Hong Kong is not an “executive-led” system as some argue, but is based on the doctrine of separation of powers, Lee said.

Chung gave the example of Article 79 of the Basic Law, which stipulates that lawmakers are disqualified if they accept a government appointment. “If this is not separation of powers, what is?” Lee cited Chung as saying.

What is the separation of powers?

<img class=”alignright” src=”http://i.imgur.com/8Ddwq1f.jpg” alt=”separation of powers” width=”200″ height=”199″ />Separation 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.

<img class=”size-full wp-image-88981″ src=”http://www.hongkongfp.com/wp-content/uploads/2016/10/court-of-final-appeal-2.jpg” alt=”court-of-final-appeal-2″ width=”810″ height=”539″ /> Court of Final Appeal. Photo: GovHK.

That said, the judiciary is generally reluctant to interfere in the internal affairs of the legislature. In <em>Leung Kwok Hung v. President of the Legislative Council </em>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 <strong>restrictive manner</strong>.”

Chung added that the territory’s mini-constitution states clearly that the courts shall “exercise judicial power independently.” The politician was quoted as saying: “There is separation of powers in Hong Kong. What’s more to argue?”

‘Flawed political system’

Chung said in disapproval that Hong Kong’s political situation is “chaotic,” according to Lee. Chung also criticised the ineffectiveness of the Principal Officials Accountability System, which was established in 2002 and designed to hold top officials personally accountable to the chief executive.

Chung Sze-yuen

Chung Sze-yuen. File Photo: Apple Daily.

Chung, who has for years been advocating a partisan political system, said the root of the problem is that government officials do not belong to any political parties.

“If Hong Kong political parties do not hold power, the chief executive will0 not have anyone’s support in the legislature,” Lee quoted Chung as saying. “It’s pointless even if there is a pro-establishment camp in Hong Kong [because] they also need to take care of themselves.”

Lee added: “It’s fine when the chief executive has good people and political skills, he may garner support in the legislature. But the problem remains. If [the chief executive] insists on his decisions in every matter, it would not work.”

Chung is known for his effort in presenting the Hongkongers’ opinions on the territory’s future to the British and Chinese governments in the lead up to the 1997 handover.

He was later appointed as the first convenor of the top advisory Executive Council of the newly established Hong Kong SAR government. Chief Executive Leung Chun-ying was also an Executive Council convenor.

Hong Kong has separation of powers, says former ExCo convenor Chung Sze-yuen