17 October 2018
Rita Fan said the Basic Law only provides that judicial power is independent from that of the SAR government. Photos: HKEJ, TVB
Rita Fan said the Basic Law only provides that judicial power is independent from that of the SAR government. Photos: HKEJ, TVB

Separation of powers not specified in Basic Law: Rita Fan

The Basic Law does not specify “separation of powers” of the executive and legislative branches of the government, National People’s Congress (NPC) Standing Committee member Rita Fan Hsu Lai-tai says, adding that the phrase is only being used by pan-democrats and some people in legal circles.

Fan said even former NPC chairman Wu Bangguo had told a Hong Kong delegation several years ago that there is no separation of powers in Hong Kong’s mini constitution.

She said the Basic Law only provides that the power of the judiciary is independent from the SAR government, the Hong Kong Economic Journal reports.

Her comments were apparentely meant to defend Chief Executive Leung Chun-ying and Secretary for Justice Rimsky Yuen Kwok-keung, who have been criticized for allegedly trying to use executive power to interfere in the affairs of the Legislative Council.

Leung and Yuen jointly filed a petition for judicial review of a decision by Legco president Andrew Leung Kwan-yuen to allow two legislators-elect, Youngspiration’s Yau Wai-ching and Sixtus “Baggio” Leung, to retake their oaths.

During their oath-taking last week, the two young localists mispronounced the word “China” as “Shina”, obviously deliberately as an insult to the central government, prompting the Legco secretary-general Kenneth Chen Wei-on to invalidate their oaths.

Critics said Leung and Yuen’s move violates the spirit of a tripartite system of government that provides for the separation of executive, legislative and judicial powers with checks and balances.

Justice Thomas Au Hing-cheung has decided against an injunction that would have prevented the Youngspiration duo from reciting the oath again and officially assuming their Legco seats.

Global Times, an English-language Chinese newspaper under the official People’s Daily, suggested in an editorial on Thursday that the Hong Kong government might as well submit a request to the NPC for an interpretation of the law to resolve the dispute.

The two legislators-elect failed to be sworn in again on Wednesday in view of a lack of quorum at Legco, which resulted from a walkout staged by pro-establishment lawmakers.

Commenting on the suggestion that the NPC interpret the Basic Law with regard to the oath-taking controversy, Fan said she does not know which clause in the document needs to be interpreted.

She stressed it is the chief executive’s duty to implement the Basic Law and therefore Leung’s request to the court is understandable.

Fan said Yau and Baggio Leung should take full responsibility for the current chaos in Legco, adding that the legislature and the court have been trying to find a solution.

Agreeing with Fan’s view, Shiu Sin-por, head the Central Policy Unit that provides advice on policy matters to the chief executive, said in a newspaper article that the governance system in Hong Kong has never been and will never be built on separation of powers.

Shiu said there are only two powers in government, the judicial power and another that is between the executive and the legislative.

As such, he said, the application for judicial review did not hurt the so-called independence of legislature.

But Civic Party lawmaker Dennis Kwok Wing-hang, who is a barrister, said that past court rulings had made it clear that separation of powers is the foundation of the Hong Kong system.

He said Fan’s remarks would only mislead the public.

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