22 October 2016
Rao Geping (inset) says the executive, legislative and judicial branches of the Hong Kong government "must work together".Photo: HKEJ
Rao Geping (inset) says the executive, legislative and judicial branches of the Hong Kong government "must work together".Photo: HKEJ

This is the real reason Leung’s ‘superior’ status is scary

Expect the controversy over separation of powers to tangle up cross-border politics like no other.

The simple reason is what’s at issue.

It’s not whether Hong Kong has such a political structure but whether its judiciary is about to lose its independence.

When Zhang Xiaoming (張曉明) raised the issue at an official reception on Saturday, he left his audience and the rest of us to ponder exactly what he meant.

Which is why there has been a flurry of interpretations from Chief Executive Leung Chun-ying to Secretary for Justice Rimsky Yuen and Basic Law Committee member Rao Geping (饒戈平).

Zhang, Beijing’s top official in Hong Kong, had an opportunity to elaborate on Monday when he was asked by reporters but didn’t take it.

What we understand from his controversial comments is what little insight there has been from the media.

But there’s enough of it to keep us up at night.

The gist of Zhang’s comments is that the Beijing-appointed Hong Kong leader has a constitutional status that transcends all three branches of government — executive, legislative and judicial.

In addition, he said separation of powers in Hong Kong is merely a reference, not a real political structure, because Hong Kong is not a sovereign state.

Zhang used the words “superior” and “special power” to describe the status of the chief executive but none had the same numbing blow as the suggestion that he has “overriding” authority over the judiciary.

Leung tried to manage the confused aftermath by citing the Basic Law, saying it does not give Hong Kong real separation of powers as this legal principle exists in sovereign states.

And Yuen played down the controversy by echoing Leung, adding Zhang’s comments had been taken out of proportion.

That did not stop the Hong Kong Bar Association from seeking a clarification from Zhang, which had not come at this writing.

Now we’re hearing a more worrying version from Rao, a law professor in Beijing University.

He took the official line that Hong Kong does not have true separation of powers but added the three branches of government “must work together”.

Heaven forbid that’s the real message Zhang was trying to send.

The first thing that strikes us about it is the implication that the judiciary exists for the government, not to serve the ends of justice.

Hong Kong built its success on effective governance but mostly on an independent judiciary.

While the political landscape has changed beyond recognition from constant architecting by Beijing, the judiciary has remained a bastion of Hong Kong’s vaunted rule of law.

The notion that it’s being co-opted for political purposes is plainly terrifying.

But it’s increasingly clear that’s what Beijing prefers after a series of political setbacks in Hong Kong from the shelving of a national security law and national education to the crushing defeat of its election reform proposal.

Also, the central authorities are unhappy about the outcome of certain cases involving pro-democracy protesters.

The theory is that the government expects better treatment from justices who are appointed by the chief executive in the first place.

Perhaps the best argument on the subject came before the latest flap even emerged.

Last year, former chief justice Andrew Li wrote that rule of law with an independent judiciary is “universally recognised as a cornerstone of our society under ‘one country, two systems’.”

And by the same token, judicial independence is “integral to the rule of law”, he said.

We rest our case.

– Contact us at [email protected]


EJ Insight writer

EJI Weekly Newsletter