Hong Kong Bar Assoc. says leader Carrie Lam's stance on separation of powers 'unfounded, inconsistent'

Hong Kong’s professional body of barristers has rejected the chief executive’s claim that the city has no separation of powers, saying that such a stance is as at odds with the existing constitutional order.

On Tuesday, Carrie Lam voiced support for comments made by the education secretary , who said there was no division of power between the executive, legislature and judiciary. Lam said the term often referred to the “distribution of labour” instead.

Hong Kong Bar Association Chairman Philip Dykes. Photo: Kris Cheng/HKFP.

Secretary for Education Kevin Yeung was responding to the removal of “separation of powers” phrasing from teaching materials after six publishers revised the content of eight sets of Liberal Studies textbooks during a voluntary screening by the Education Bureau.

‘Unfounded and inconsistent’

The Hong Kong Bar Association (HKBA) in a press release on Wednesday chimed in, saying it has – over the years – issued multiple statements rejecting the notion that the judiciary is part of a governance “team.”

“These remarks depart from the authoritative judicial decisions on the structure of the HKSAR [Hong Kong Special Administrative Region] government, which form part of the law of Hong Kong, as well as the considered public statements of two chief justices,” it read.

“They give rise to speculation amongst the public about how the government operates under the existing constitutional and legal framework.”

Chief Justices Andrew Li and Geoffrey Ma have both described, in 2001 and 2014 respectively, the separation of powers as a feature of Hong Kong’s common law system.

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.

The Association’s statement went on to argue that the independent operations of the three branches should create a system of checks and balances between them: “This arrangement serves to avoid excessive concentration of power, guards against abuse, and strengthens the rule of law.”

statue of justice — Photo: Court of Final Appeal/Lau Chi Chuen.

The city’s leader justified her stance on the issue on Tuesday as resulting from the unique constitutional order of the semi-autonomous territory. She said central authorities grant administrative, legislative and judicial power to Hong Kong; thus the three institutions are accountable to Beijing through the chief executive, in what she described as an “executive-led” system of governance.

The Association, however, rejected her point as “unfounded and inconsistent” with the “unambiguous” provisions of the city’s mini-constitution, the Basic Law.

“That the HKSAR, through the chief executive, is accountable to the CPG [Central People’s Government], speaks to the HKSAR’s place within the constitutional order of the PRC [People’s Republic of China],” it said. “It does not detract in any way from the clear provisions of the Basic Law setting out how local governance is to be conducted.”

Association Chairman Philip Dykes has repeatedly warned of curbs to judicial independence under the Beijing-drafted national security law for Hong Kong, imposed without local legislative oversight. It criminalises a host of broadly-defined activities deemed to be secessionist, seditious and constituting collusion with foreign forces.

The Association has released a string of statements since Beijing announced plans to draft the law in May, sounding the alarm over the threats to the city’s autonomy and fundamental liberties.