Further reaction to Zhang Xiaoming’s speech on Saturday when he stated that Hong Kong’s Chief Executive enjoys a special legal position that puts him above the legislature and judiciary. The Hong Kong Bar Association said in an eight-page statement in both Chinese and English that the role of Hong Kong’s chief executive was clearly defined in the city’s mini-constitution and could not be said to be above the law.
Here is the Press Statement of HKBA – English – 14 September, 2015 in full.
Not that the ‘Rule of Law’ means anything in China where a ‘contract’ is often worth less than the paper it’s written on, but according to the Progressive Lawyers Group, Zhang Xiaoming’s recent statement has no legal basis under the Basic Law.
The Director of the Central Government’s Liaison Office, Zhang Xiaoming, said on the 12 September that the Chief Executive’s (CE) position transcends that of the executive, legislative and judicial branches of government, and that separation of powers between these three branches of government can only be applied at the level of a sovereign.
The Progressive Lawyers Group considers such views to be devoid of legal basis for the following reasons.
(1) The CE’s position stems from the Basic Law, with no “special legal status”
The Basic Law has constitutional status in Hong Kong SAR, and is the source which sets out the CE’s powers. The SAR’s affairs, including the CE’s roles and limits on his powers, are provided for under the Basic Law, and cannot be altered simply by some apparatchik claiming that the CE is the means by which the Central Government rules Hong Kong:
– Article 2 of the Basic Law clearly states that Hong Kong enjoys executive, legislative, and independent judicial (including the power of final adjudication) powers.
– Article 11 of the Basic Law requires that Hong Kong’s systems in respect of executive, legislature and judiciary shall be based on the Basic Law itself.
– Article 59 of the Basic Law stipulates that the SAR Government is the executive branch of government in Hong Kong, and that the CE is the head of the SAR Government. Thus, the CE is clearly and merely part of the executive branch, and does not in any way enjoy a status which transcends the executive branch.
– Article 64 of the Basic Law also states that the SAR Government must abide by the law. Thus, as the head of the SAR Government, the CR must abide by and cannot transcend the law, including the Basic Law.
As can be seen, under the Basic Law, there does not exist any so-called special legal position when it comes to the CE’s role in Hong Kong’s political system. Thus, Zhang Xiaoming’s statements are devoid of legal basis.
(2) Separation of powers between the three branches of government is not only applicable at the sovereign level, the CE is subject to legislative and judicial checks
The separation of powers between the executive, legislative and judicial branches, where they operate independently but also subject to checks on each other’s powers, is something that is currently applicable to the national, state and even local governments of many democratic jurisdictions. Zhang Xiaoming’s assertion that this concept is applicable only at the level of the sovereign clearly shows his ignorance in this regard.
As to Hong Kong, looking at the provisions of the Basic Law as a whole, the existence of such separation of powers is relatively clear, and was affirmed by the Court of Final Appeal (see Leung Kwok Hung v The President of the Legislative Council of the Hong Kong Special Administrative Region (2014), paragraph 27). The Basic Law clearly delineates Hong Kong’s executive, legislative and judicial branches of government, and in a various parts set out provisions which create checks on each other’s powers. For example:
– Article 64 of the Basic Law states that the SAR Government must abide by the law and be accountable to the Legislative Council.
– Articles 49, 50, 51 and 76 states that the CE’s checks on the Legislative Council, such as the special circumstances when he can dissolve the Legislative Council.
– As regards the judiciary, Article 80 of the Basic Law states that the various courts of Hong Kong constitute the Hong Kong’s judiciary, which exercises the Hong Kong SAR’s judicial power, and the independence of the judiciary is protected by Article 85: “The courts of the Hong Kong Special Administrative Region shall exercise judicial power independently, free from any interference”.
(3) Zhang Xiaoming should seek to familiarise himself with the Basic Law
Zhang Xiaoming graduated with law degrees from Southwest University of Political Science and Law and Renmin University of China, both of which are apparently colleges of renown within Mainland China. However, his remarks on Saturday demonstrated his twisting and ignorance of the law, which is a disservice to his alma mater’s reputation. Rather than yet again sowing trouble and discord in Hong Kong, Zhang Xiaoming the apparatchik should seek first to familiarise himself with the Basic Law before saying anything further on these topics. In short, Zhang’s comments are so patently absurd that those seeking to defend him should be careful of being seen as sailing too close to the wind, lest they end up also appearing as buffoons themselves.
Progressive Lawyers Group
14 September 2015
https://www.facebook.com/proglawgroup
Originally published in The Stand News
The Progressive Lawyers Group are a group of Hong Kong lawyers dedicated to promoting core values of rule of law, judicial independence, democracy, human rights, freedom, and justice.
