26 October 2016
Chief Justice Geoffrey Ma has made it clear that under the Basic Law, the independence of Hong Kong's judiciary is fully guaranteed, and that everyone, including the CE, is equal before the law. Photo: HKEJ
Chief Justice Geoffrey Ma has made it clear that under the Basic Law, the independence of Hong Kong's judiciary is fully guaranteed, and that everyone, including the CE, is equal before the law. Photo: HKEJ

Why there can be no compromise on judicial independence

Remarks made by Zhang Xiaoming, director of Beijing’s Liaison Office in Hong Kong, that the chief executive has “superior status” over all branches of government have created a firestorm of controversy in the city.

Zhang’s words not only sparked immediate backlash from the pan-democrats, they also drew sharp criticism from the Bar Association, which issued a public statement expressing deep concern at his comments.

To be fair, Zhang actually didn’t use the word “override” when he said the CE enjoys a special legal status that “transcends the institutions of the three branches”.

However, his interpretation is obviously against the general opinion that Hong Kong has always been following the principle of “the separation of powers”.

Some members of the public are even worried that Zhang’s words might signal another political onslaught mounted by Beijing to undermine judicial independence in the city.

Over the past week, pro-Beijing newspapers Wen Wei Po and Ta Kung Pao, and a number of pro-establishment heavyweights — such as deputy director of the Basic Law Committee Elsie Leung Oi-sie, her committee colleague Maria Tam Wai-chu, member of the NPC Standing Committee Rita Fan Hsu Lai-tai, and Secretary for Justice Rimsky Yuen Kwok-keung — have rallied to the defense of Zhang.

They urged the public not to read too much into his words, and clarified that although Hong Kong is not a sovereign state, independence of the local legislature and the judiciary is guaranteed under the Basic Law.

Apparently, Zhang was deliberately trying to stir up controversy with his provocative words, and his move has already caused grave public concern. Now it’s time for the government to step forward and set the record straight.

Intriguingly, however, Chief Secretary Carrie Lam Cheng Yuet-ngor, who, as the second-in-command of the HKSAR, was supposed to offer reassurance to the public over the issue, openly echoed Zhang’s remarks in a high-profile manner immediately after she returned from an official visit to Australia.

Claiming that Zhang hadn’t said anything new, Lam accused the mainland official’s critics of taking issue with him just “for the sake of criticizing”. She added that anyone with even the slightest common sense would never jump to conclusions about Zhang’s remarks like that.

So who is actually being ignorant here? Despite the fact that there isn’t any clause in the Basic Law specifying that Hong Kong must practice “the separation of powers”, there are numerous clauses and provisions in the law guaranteeing oversight by the Legco on the government and stipulating that the executive branch is responsible to the legislature.

For example, Articles 47, 52 and 64 have laid down clear restrictions on the power of the CE and his administration. Article 73 even offers the Legco the power to impeach the CE, while Article 2 guarantees that Hong Kong enjoys judicial independence and the power of final appeal.

Therefore, to the majority of the public in Hong Kong, it is a commonly known fact that “the separation of powers” always exists in our system, and it doesn’t take a legal or constitutional expert to identify this basic fact.

Recently, rumors circulated that Zhang might be removed from office after President Xi Jinping returns from his trip to the US, and that Leung Chun-ying could also be ousted.

Some suspect that the reason why Lam is becoming increasingly aggressive and hard-line lately is because she might just buy into such rumors and believe that she might be able to succeed Leung in the short run under Article 53 of the Basic Law.

With only two years remaining in the current term of the CE office, it is quite unlikely that any CE hopeful would be willing to run for it, and therefore it is quite possible that Carrie Lam would be handpicked to serve out the term of CE until 2017.

I guess she might have been getting a bit carried away by this possibility and let it go to her head, which could probably explain why she suddenly became a hardliner last week.

The fact that Lam has taken “executive dominance” for granted suggests that she is completely ignorant about the Basic Law, as there is not a single word in the law specifying that doctrine.

Besides, what is being practiced right now in Hong Kong is more like the “Chief Executive’s dominance” rather than “executive dominance” as the Executive Council itself, to the dismay of the public, has deteriorated into a rubber stamp under Leung Chun-ying.

Also ignorant are people like Rao Geping, a mainland member of the Basic Law Committee, who even had the nerve to slam our judges for having poor understanding of the Basic Law. What he was talking was utter nonsense.

The controversy ignited by Zhang would have continued to snowball if it had not been for Geoffrey Ma, the Chief Justice of the Court of Final Appeal, who spoke publicly last Wednesday dismissing Zhang’s theory.

In rare comments to the media, Ma refuted Zhang and Rao once and for all by pointing out in no uncertain terms that under Articles 2, 19, 25, and 85 of the Basic Law, the independence of the city’s judiciary is fully guaranteed, and that everyone, including the CE, is equal before the law.

Ma’s words not only carried unparalleled weight, they also underlined the fact that respect for the rule of law and judicial independence are among the city’s most important core values, without which our economic prosperity and individual rights would vanish instantly.

This article appeared in the Hong Kong Economic Journal on Sept. 18.

Translation by Alan Lee

[Chinese version 中文版]

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Former radio talk show host; Columnist at the Hong Kong Economic Journal

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