No separation of powers in Hong Kong says Chief Exec. Carrie Lam, despite previous comments from top judges

Hong Kong’s constitutional system has no separation of powers between the executive, legislature and judiciary, Chief Executive Carrie Lam said on Tuesday, throwing her weight behind her education secretary despite previous statements to the contrary from top judges.

Secretary for Education Kevin Yeung on Monday expressed support for the deletion of the “separation of powers” phrase from teaching materials after six publishers revised the content of Liberal Studies textbooks during a voluntary screening by the Education Bureau.

The move drew criticism from the city’s largest teaching union – the Hong Kong Professional Teachers’ Union – which decried what it called political censorship.

At a press conference on Tuesday, Lam expressed “full support” for the education secretary’s comment, saying there was “no room for ambiguity” over Hong Kong’s constitutional order.

“Many people misunderstand the role of the chief executive as merely the head of the government. This is incorrect,” she said, adding that she has the power to appoint judges and approve legislative budgets.

Lam said the central government [China] grants administrative, legislative and judicial power to the Hong Kong Special Administrative Region; ultimately, the three institutions are accountable to Beijing through an executive-led system of governance. “I hope the three institutions can work together and I agree they should be subject to checks and balances.”

statue of justice court — Photo: Court of Final Appeal.

“If we keep spreading erroneous statements, the real essence of the matter may be lost. In this case, it’s Hong Kong’s constitutional order.”

Judicial independence

In 2001, then-chief justice Andrew Li said judicial independence was the most basic feature of Hong Kong’s common law system and “lies at the heart of the separation of powers.”

In 2014, then-chief justice Geoffrey Ma said at the ceremonial opening of the legal year that the Basic Law, Hong Kong’s mini-constitution, “sets out clearly the principles of the separation of powers” between the three branches.

What is the ‘separation of powers’?

Separation of powers refers to the division of government into distinct branches – the executive, legislature and judiciary – to prevent any one branch from overstepping its constitutional role and abusing power.

The executive is generally referred to as the “government,” which oversees the daily administration of the territory’s bureaucracy. The Legislative Council is the legislature or parliament of Hong Kong, while the judiciary includes all levels of courts.

However, the constitutional powers of the three branches in Hong Kong are not equal. For example, under Article 74 of the Basic Law, lawmakers can only introduce bills relating to government policies with the consent of the chief executive, and cannot introduce bills relating to public spending, political structure and the operation of the government. This limits the lawmaking power of the legislature.

In a 2011 presentation, which was previously available on the Education Bureau’s website but was inaccessible at the time of publication, permanent judge of the Court of Final Appeal Patrick Chan said the separation of powers was a feature of Hong Kong’s legal system. He also said its purpose was to prevent a concentration and abuse of power.

Lam referenced the top judges’ remarks in saying she believed they meant freedom from interference: “This is about the division of labour with regards to their functions under the Basic Law.”

The Civic Party’s Dennis Kwok, a functional constituency legislator who represents the legal sector, blasted the chief executive’s comments. “It’s ludicrous and it’s an offence to the common sense of the Hong Kong people.”

Pro-Beijing politicians and central government officials have previously argued that the territory’s mini-constitution does not specify the separation of powers.

In 2015, then-president of the Legislative Council Jasper Tsang wrote in a column that the separation of powers was not a necessary condition for democracy. And in 2016, Rita Fan, a pro-Beijing heavyweight and member of China’s top legislative body – the Standing Committee of the National People’s Congress – said the Basic Law only safeguards judicial independence.

Additional reporting: Kelly Ho.