Carrie Lam, Chief Executive of Hong Kong SAR responded on Secretary of Education Bureau of Hong Kong SAR on Tuesday, 1st September 2020, that Hong Kong has no separation of powers (or commonly known as Trial Separation of Powers), and there has no mentions on such thing in Basic Law.
“There is no separation of powers in Hong Kong, so I fully support the remark made by Secretary for Education, and I fully support him in the textbook consultation services launched. In the process we’ll be able to better explain the constitutional order in Hong Kong”
“Every so often someone will make this a topic – whether there is separation of powers in Hong Kong – they will cite some well-known persons or judges but there is nothing clearer than the Basic Law.”- Carrie Lam, Chief Executive of Hong Kong SAR
Chief Executive Carrie Lam said on Tuesday that Hong Kong had no separation of powers and there is no mention of such a thing in the Basic Law.
Kevin Yeung, Secretary of Education Bureau of Hong Kong SAR, said it does not have separation of powers in Hong Kong on Monday, 31st august 2010. It would be wrong for school textbooks to suggest that it does.
Recently, Kevin Yeung made some changes to liberal studies textbooks, included to remove the division of powers between executive, legislative, and judiciary. Adding that SAR has no separation of powers, nor since the handed-over of Hong Kong.
“As a matter of fact, some of the concepts now included in the textbooks are much more accurate than before.” – Kevin Yeung, Secretary of Education Bureau of Hong Kong SAR
Kevin Yeung says Hong Kong didn't have a separation of powers before the handover, and it hasn't had since either. Photo: RTHK Education Secretary Kevin Yeung said on Monday that Hong Kong does not have a separation of powers and it would be wrong for school textbooks to suggest that it does.
However, many people had cited a speech made by Chief Justice, Geoffrey Ma in 2014, after Yeung made such comments.
“Basic Law sets out clearly the principle of the separation of powers between the legislature, the executive and the judiciary“.
Let’s see the news in 2014 and what Geoffrey Ma, the Chief of Justice said :
CJ's speech at Ceremonial Opening of the Legal Year 2014 (with photos) ********************************************************* The following is issued on behalf of the Judiciary: The following is the full text of the speech delivered by the Chief Justice of the Court of Final Appeal, Mr Geoffrey Ma Tao-li, at the Ceremonial Opening of the Legal Year 2014 today (January 13): Secretary for Justice, Mr Chairman, Mr President,distinguished guests, ladies and gentlemen, On behalf of the Hong Kong Judiciary, I extend a warm welcome to all of you to this year's Opening of the Legal Year.
According to the Article 48 of Basic Law, The Chief Executive of the Hong Kong Special Administrative Region shall exercise the following powers and functions:
( 1 ) To lead the government of the Region;
( 2 ) To be responsible for the implementation of this Law and other laws which, in accordance with this Law, apply in the Hong Kong Special Administrative Region;
( 3 ) To sign bills passed by the Legislative Council and to promulgate laws;
To sign budgets passed by the Legislative Council and report the budgets and final accounts to the Central People’s Government for the record;
( 4 ) To decide on government policies and to issue executive orders;
( 5 ) To nominate and to report to the Central People’s Government for appointment the following principal officials: Secretaries and Deputy Secretaries of Departments, Directors of Bureaux, Commissioner Against Corruption, Director of Audit, Commissioner of Police, Director of Immigration and Commissioner of Customs and Excise; and to recommend to the Central People’s Government the removal of the above-mentioned officials;
( 6 ) To appoint or remove judges of the courts at all levels in accordance with legal procedures;
( 7 ) To appoint or remove holders of public office in accordance with legal procedures;
( 8 ) To implement the directives issued by the Central People’s Government in respect of the relevant matters provided for in this Law;
( 9 ) To conduct, on behalf of the Government of the Hong Kong Special Administrative Region, external affairs and other affairs as authorized by the Central Authorities;
( 10 ) To approve the introduction of motions regarding revenues or expenditure to the Legislative Council;
( 11 ) To decide, in the light of security and vital public interests, whether government officials or other personnel in charge of government affairs should testify or give evidence before the Legislative Council or its committees;
( 12 ) To pardon persons convicted of criminal offences or commute their penalties; and
( 13 ) To handle petitions and complaints.
According to Article 59:
“The Government of the Hong Kong Special Administrative Region shall be the executive authorities of the Region“
According to the Article 64 :
“The Government of the Hong Kong Special Administrative Region must abide by the law and be accountable to the Legislative Council of the Region: it shall implement laws passed by the Council and already in force; it shall present regular policy addresses to the Council; it shall answer questions raised by members of the Council; and it shall obtain approval from the Council for taxation and public expenditure.”
According to the Article 80 :
“The courts of the Hong Kong Special Administrative Region at all levels shall be the judiciary of the Region, exercising the judicial power of the Region.”
And according to the Article 85 :
“The courts of the Hong Kong Special Administrative Region shall exercise judicial power independently, free from any interference. Members of the judiciary shall be immune from legal action in the performance of their judicial functions.”
In the legal procedures of court, especially in judicial review procedures, the government often bases on the different functions of the executive, legislative, and judicial as defenses for the legitimacy of administrative decisions and the constitutionality of laws enacted by the Legislative Council.
Let’s take a look on other PhD research of Danny Gittings in 2015 (University of Hong Kong, School of Professional and Continuing Education; The University of Hong Kong, Faculty of Law) :
“Although it is far from clear how far the drafters of the Hong Kong Basic Law ever intended a system of separation of powers to be practiced in Hong Kong, that is how the Hong Kong courts have interpreted the effect of the provisions in that constitutional document, the Hong Kong Basic Law. However this paper argues that the courts’ references to separation of powers have been brief and unhelpful, and offer little guidance on how best to characterize the system that exists under the Hong Kong Basic Law. As a result, it remains unclear what existing practices in Hong Kong may be vulnerable to legal challenge for violating a system of separation of powers.”
“This is a working paper written during the preliminary stage of the author’s PhD research into separation of powers at the Faculty of Law of the University of Hong Kong and will be subject to revision.”
The Chief Executive put forward a number of reasons at the press conference on September 1, 2020, stating that there is no separation of powers in the Hong Kong Special Administrative Region, including:
- (1) The power of the Hong Kong Special Administrative Region comes from the Central People’s Government, and the Chief Executive’s Office is directly accountable to the Central People’s Government, And
- (2) The courts deal with legal issues rather than political issues, the latter being the affairs of the executive or legislature.
Both of these points cannot support the claim that the Hong Kong Special Administrative Region does not have a separation of powers.
The Hong Kong Special Administrative Region is accountable to the Central People’s Government through the Chief Executive, which shows the status of the Hong Kong Special Administrative Region in the constitutional order of the People’s Republic of China. This does not affect the clear provisions of the Basic Law on how the Hong Kong Special Administrative Region conducts local governance.
The second point is far from contradicting the separation of powers, but is an indispensable part of the separation of powers. This view recognizes that certain functions have been entrusted to the executive or legislative departments, and unless otherwise provided by law, they must be performed without judicial intervention.
The Basic Law regulates the constitutional order of the Hong Kong Special Administrative Region, and provides effective checks and balances on the exercise of administrative power.