A Hong Kong cabinet adviser has argued against the controversial removal of the phrase “separation of powers” from descriptions of the city’s politics in textbooks, a day after the chief executive defended the change, if only so the public would better understand why it was “meaningless” to focus on the issue.
The professional body representing the city’s barristers also weighed in on the matter on Wednesday, rejecting the remarks by city leader Carrie Lam Cheng Yuet-ngor and the education minister who said there was no separation of powers in Hong Kong. The Bar Association said such statements were “unfounded” and “inconsistent” with the Basic Law, the city’s mini-constitution.
Ronny Tong Ka-wah, a member of Lam’s Executive Council, earlier told a radio show he disagreed with the Education Bureau’s support for publishers that deleted the phrase “separation of powers”, along with other politically sensitive concepts, from coming editions of liberal studies textbooks.
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“It is precisely because society has a lack of understanding [of this concept] … and many people might have the misconception that Hong Kong is a sovereign state and should therefore have separation of powers,” Tong said.
The debate over whether Hong Kong had true separation of powers was “meaningless”, Tong continued, stressing the discussion should focus on the separate functions of the legislative, executive and judicial branches of government, rather than if they had “independent power”.
“Hong Kong is not a political body, its power comes from the central government,” Tong said.
“In terms of constitutional arrangements, there is indeed no direct mention of separation of powers, but Hong Kong’s internal governance does have a certain degree of separation of powers as a concept of checks and balances. Yet, that cannot be extended to the national level.
There has always been a separation of three powers in Hong Kong’s system, as the city’s legislative, executive and judicial powers remain separate and independent
Legal sector lawmaker Dennis Kwok
“If these ideas are not corrected earlier, it could be problematic. If you hide the topic under the bed and don’t talk about it, it won’t help either,” Tong said, conceding the central government might find it inappropriate to discuss the concept in Hong Kong given the city’s politically sensitive climate.
Secretary for Education Kevin Yeung Yun-hung on Monday defended the removal of the phrase from at least two textbooks as a fact-based decision, dismissing criticisms that the change amounted to political censorship.
On Tuesday, Lam sided with the education minister, supporting the deletion. She said there was no separation of powers in the city’s executive-led political system, adding the three branches “cooperate among each other”, although there were also checks and balances among them.
But the Bar Association said the remarks were a departure from authoritative judicial decisions on the structure of the Hong Kong government, which formed part of the city’s law, as well as the considered public statements of two chief justices.
“They give rise to speculation amongst the public about how the government operates under the existing constitutional and legal framework,” it said.
The Basic Law “expressly delineates the respective powers and functions of the executive, legislative and judicial authorities in separate sections of Chapter IV”.
The association also disputed Lam’s argument that she was accountable to the central government from which Hong Kong derived its authority, saying the Basic Law only stated the city’s place within the constitutional order of the central government.
“The Basic Law provides for a constitutional order in the [HKSAR], where there are effective checks and balances on the exercise of executive power,” it said. “The [association] therefore considers that the suggestion by [Lam and Yeung] that no separation of powers principle operates in the HKSAR is unfounded and inconsistent with the unambiguous provisions of the Basic Law prescribing and delineating the functions of the three branches of government.”
Speaking on the same radio programme as Tong, legal sector lawmaker Dennis Kwok of the Civic Party accused Lam of using what he described as confusing wording to describe separation of powers.
“There has always been a separation of three powers in Hong Kong’s system, as the city’s legislative, executive and judicial powers remain separate and independent,” Kwok said.
Johannes Chan Man-mun, a constitutional law scholar at the University of Hong Kong, meanwhile, said Lam had confused the division of powers between the central government and the SAR with the question of separation of powers.
“The question of power distribution in a central-local relationship exists in many systems with or without a separation of powers. Separation of powers refers to the power distribution within a system, not between two systems,” he said.
“She also confuses accountability of the chief executive with the accountability of the three branches. The fact that the chief executive is accountable to the central people’s government [CPG] does not mean the three branches are accountable to the CPG.”
But Beijing loyalist Tam Yiu-chung, the city’s sole representative in the National People’s Congress Standing Committee, said the term “separation of powers” was inaccurate, as it gave people an impression that the three branches stood on their own and were not related.
Instead, he argued the executive authorities, the legislature and the judiciary should complement each other’s functions, even as they served as checks and balances to each other.
Without mentioning the separation of powers debate, the state-run People’s Daily said in an article late Tuesday night that Hong Kong’s education system needed to be “cured”.
Additional reporting by Chris Lau
More from South China Morning Post:
- Hong Kong education chief denies changes to Liberal Studies textbooks amount to political censorship
- Hong Kong leader Carrie Lam admits to being caught out by protests: ‘I’m an administrator that doesn’t understand politics’
- Hong Kong leader Carrie Lam dismisses veiled criticism from cabinet colleague that power causes negative impact on individuals
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