Does Hong Kong’s government hold power over the legislative and judicial branches? Justice department’s court appeal on anti-mask law suggests so

Alvin Lum

Hong Kong’s justice department has told the courts that the city has always been “executive-led” on constitutional matters instead of being governed by the principle of a pure separation of powers, fuelling an ongoing legal debate over the validity of the anti-mask law.

The argument, presented in a 30-page paper by the Department of Justice (DOJ) and submitted to the Court of Appeal, suggested the administration had more power than commonly thought, with implications on judicial oversight and legislation.

The High Court had previously found the ban on masks – which was introduced to quell the anti-government movement roiling the city – unconstitutional, ruling that the chief executive had displaced the power of the legislature by invoking an emergency law.

The government then brought the case to the Court of Appeal in a bid to reinstate the ban, arguing the lower court should allow the executive branch a broader discretion over emergency laws.

The Department of Justice on Lower Albert Road in Central. Photo: Nora Tam

The court then suspended the pronouncement of unconstitutionality by the High Court until December 10, pending the substantive appeal by the government.

On Monday, arguing that the first instance court was wrong to find power only vested in the legislature, the DOJ said in its paper that Hong Kong’s system had always been executive-led.

“The learned judges [in the High Court] … have failed to appreciate that the system in the HKSAR does not embody the purest form of separation of power,” the department said in the paper.

“The Basic Law does not follow a rigid separation of powers ... Before July 1, 1997, neither the British system nor the Hong Kong system was based on a rigid separation of powers.”

The government continued to argue that the “leading role” of the chief executive under the Basic Law, the city’s mini-constitution, provided the executive branch broad powers to formulate policies and introduce laws, and to pass emergency legislation even without the Executive Council’s approval.

“Basic Law Article 56(2) clearly contemplates that the chief executive, as head of the [SAR] government, needs to adopt measures in emergencies,” it said.

The department added that the National People’s Congress Standing Committee (NPCSC) – China’s top legislative body – had never found that the emergency laws contravened the Basic Law, and therefore such a position should be “deemed to have continued”.

Hong Kong ‘separation of powers’: Why Beijing is laying down the law on who’s in charge

Beijing has long rejected the categorisation of “separation of powers” in Hong Kong, insisting on the view that the Basic Law always imposes an executive-led system.

In 2015, Beijing’s liaison office director Zhang Xiaoming said that the city’s chief executive was in a position that “transcends” the executive, legislative and judicial branches. He said the concept of separation of powers between the three branches was confined to sovereign states and could only serve as a reference for Hong Kong.

Chief justice Geoffrey Ma at the time said everyone was equal before the law, but did not offer any comment on the doctrine of separation of powers.

Hong Kong’s courts have traditionally observed the principle of separation of powers among the executive, legislative and judicial branches.

In a 2008 leading judgment delivered by now top court judge Andrew Cheung Kui-nang and seconded by then High Court judge Michael Hartmann, the pair said: “It is true that the principle of separation of powers is enshrined in the Basic Law.”

But they also called for a “flexible and realistic, as opposed to an idealistic, approach to the doctrine” that would not indiscriminately follow foreign jurisdictions.

Beijing’s best option is to wait for Hong Kong to appeal mask ban

Both former chief justice Andrew Li Kwok-nang and his successor Geoffrey Ma also publicly backed the principle of separation of powers being part of the Hong Kong system.

In his last address at the opening of the legal year in 2010, Li said: “The Hong Kong system involves checks and balances between the executive, legislative and judicial [branches].”

Ma also said in 2014: “The Basic Law sets out clearly the principle of the separation of powers between [the branches], and in quite specific terms.”

Hong Kong has been roiled by months of protests, with one of the most controversial measures implemented by the government being the anti-mask law. Photo: Winson Wong

Legal academic Eric Cheung Tat-ming from the University of Hong Kong said any ruling adopting an executive-led approach could pave the way for the government to wield more power.

“The government and the chief executive would then have broader legislative power. In the context of emergency laws, there would be no consultation and normal legislative scrutiny, which could deal a blow to business confidence,” Cheung said.

Ronny Tong Ka-wah SC, who also serves as an adviser to the chief executive, said it was disappointing that the legal battle turned into a debate on constitutional order.

“The Basic Law has never spelt out that we are executive-led, so how can we decide if we are one way or another?” Tong said. “There’s just no point engaging in this debate.”

Ruling that Hong Kong mask ban is invalid suspended until December 10

He said the better alternative was for the NPCSC to clarify its decision made before the 1997 return of Hong Kong to Chinese rule – that emergency laws were compliant with the Basic Law.

“This will avoid an interpretation of the Basic Law, and will create less shock to the legal system,” he said.

The Court of Appeal has set aside two days from January 9 for the appeal to be heard.

The procedural hearing will be presided over by two judges instead of one – acting chief judge of the High Court Jeremy Poon Shiu-chor and Court of Appeal vice-president Johnson Lam Man-hon. The High Court also previously arranged two leading judges on public laws to hear the case.

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