“Over My Dead Body!”: The Official Death of Hong Kong’s Separation of Powers

On the pre-existence of separation of powers and the true meaning of its demise


Just two months ago, the government ‘clarified’ that the concept of ‘separation of powers’ was a mere illusion, and that in fact, according to the Basic Law, “separation of powers has no place in Hong Kong’s political structure all along”, as claimed by Teresa Cheng, Hong Kong’s Secretary for Justice [1]. Separation of powers was widely known as a core value of Hong Kong’s legal system, and as expected, such a statement stirred up overwhelming controversy both within and outside Hong Kong, with some even claiming this as democracy’s demise in the city.


So, did such a principle actually exist in Hong Kong? What does it mean for the powers to not be separated? What are the potential consequences of the separation’s ‘official death’?


The Basic Law

Before discussing further, we must first dive into the boring and lengthy Basic Law, Hong Kong’s ‘mini-constitution’, which enshrines the most important “one country, two systems” principle. The full detail and history of the Basic Law is way beyond the scope of our discussion (and the knowledge of a mathphys student), we are here only for what is concealed within: the underlying foundations of Hong Kong’s separation of powers.


To begin with, yes, the exact words, “separation of powers”, have never appeared in the Basic Law. In fact, there is not a single phrase in the booklet which states that the well-familiar executive, legislative and judiciary powers are separated, or divided, or dissected, or segregated…… whatever synonym you can think of, it cannot be found. End of discussion, did I hear you say? Well, not quite the case.


In Hong Kong’s Basic Law, the roles of the executive, the legislature, and the judiciary are allocated clearly and explicitly under articles 16 and 59, articles 17 and 66, and articles 19 and 80 respectively; and as you might have anticipated, the three powers have completely different roles and responsibilities. In particular, under Section 3, Annex 1, the Sino-British Joint Declaration provides that “the courts shall exercise judicial power independently and free from any interference”. This, ladies and gentlemen, is what gave Hong Kong its judicial independence, and further recognized as one of the key lines supporting the existence of Hong Kong’s separation of powers.


The (oversimplified) constitution, statutory law, and common law

“At least they should’ve mentioned the words ‘separation of powers’ explicitly in the Basic Law! Why the ambiguity?” I heard you shouting. A really good question, I must say. Yet, the truth is, laws and constitutions, or constitutional systems in general, are extraordinarily complicated; countless researchers and politicians spend their entire lives just trying to figure out how it all operates and ways to improve it.

As a handwavy explanation, the Basic Law, like most other (rigid) constitutions, is deliberately made ambiguous to allow flexibility. Constitutions are the cornerstone of a society’s legal system, and written on it are fundamental principles which the concerned society must abide to at all times; and just like the core structure of a skyscraper, it is there to remain unchanged and undisturbed [2], supporting the building for the rest of eternity (quite romantic, don’t you think?).


Of course, such flexibility allows holes and gaps in the system, hence, to complement the constitution, we need the law. The most ‘commonly’ known law (pun intended) is what’s called the statutory law: grab some paper, write down a few rules, and voilà, you have yourself a statutory law! (Yes, a formal establishment of a statutory law requires it to be drafted and discussed and passed by the legislative council and signed by the Chief Executive and…… let’s just skip the details here and infuriate the law students for simplicity’s sake)


However, Hong Kong’s legal system operates quite differently. For historical reasons, Hong Kong practices the common law system (with supplementing statutes). Again, being as handwavy as possible, the system basically means that Hong Kong builds its laws by stacking up verdicts; each and every single legal case contributes to the law. Our practice of the common law is precisely why in nearly all trials, related verdicts published years ago are still mentioned, referenced, and taken into consideration. As the Basic Law is the core structure of our skyscraper, the common law builds brick by brick onto the framework to complete our skyscraper.


So…… where be thy separation of powers?

After such boring and rather dodgy introduction (by now you should be either asleep or an enraged law student), we are finally well-equipped to answer the question: Did separation of powers actually exist in Hong Kong? The answer is: it’s complicated (God damn it, what a time-waster!).


See, separation of powers is widely and internationally accepted as a crucial principle for legal systems under the common law structure. In fact, it is so widely recognized that constitutions around the world usually only state the functions of the respective powers, without explicitly stating that the powers are “separated” , just like what we have in our Basic Law. Countries in which separation of powers is recognized but not explicitly stated in their constitution include USA, Spain, Germany, Italy, South Africa…… [3] and the list goes on and on. Adding to that, even the United Kingdom, that place where people care more about football than Brexit, that literal monarchy with a queen who truly lives on forever, that country that does not even have a constitution, recognizes itself with clear separation of powers!


“Hong Kong is Hong Kong! Not USA, not Spain, not Italy, not Chi- Chile, but Hong Kong!” Yes, I see you there frantically gesticulating. As much as I would like to say the same, Hong Kong proclaims itself as ‘Asia’s World City’, it will be a face-slapping insult to the government for saying it is isolated from foreign laws and legal systems.


Furthermore, as a legal system relying mainly on our common law, previous cases and verdicts are especially important in determining what is in, or not in the law. With that in mind, a simple search in Hong Kong’s database of previous court verdicts yields a stunning 145 appearances of the three exact words “separation of powers” [4], not even counting synonyms, misspells and chinese phrases with similar meanings.


The devil is in the detail

“So, shouldn’t it be an easy ‘yes’? Don’t waste my time already!” Well, you see, there is a catch. Under the articles in Chapter VIII of the Basic Law, there are two especially important sentences:

Article 158: The power of interpretation of this Law shall be vested in the Standing Committee of the National People's Congress.


Article 159: The power of amendment of this Law shall be vested in the National People's Congress.

Or in our not-those-boring-law-students language, it simply means the Chinese government has the final say; not only on amendments of the Basic Law, but also on how each and every word in the Law should be interpreted: a “no” from the CCP is a proper and unchallengeable “no”. Also, after all, our government did declare earlier that separation of powers has never existed in Hong Kong, and…… our government never lies, right? (All hail!)


Immediate consequences of separation of powers’ official death

Regardless of your opinion on the pre-existence of separation of powers in Hong Kong, it is now undoubtedly and officially dead. Over the years, Hong Kong citizens dreaming of resurrecting the separation from its grave surely had their hope withered away by now. What lies ahead of us is still a giant mystery, but after the past few weeks, the immediate consequences are obvious.


Remember freedom of press? Not long ago, we had an RTHK journalist, Ms. Choy Yuk-ling, arrested for digging into the 721 incident [5]. Amidst the resulting public uproar, investigating police brutality has seemingly become the forbidden fruit for journalists in Hong Kong.


Remember freedom of assembly? We have 24 democracy activists arrested for taking part in the annual Candlelight Vigil for June 4 Massacre [6], alongside over 10 thousand others detained, tortured, and even reportedly murdered for joining pro-democracy marches and clashes against the police.


Remember freedom of speech? We have student leaders such as Tony Chung, a co-founder of Studentlocalism, arrested for voicing their opinions against the government. At the very moment he was taken in, Chung was right outside the US consulate. Oh, national security, oh how safe and secure we citizens feel!


The true meaning of the death certificate

What does the official death of Hong Kong’s separation of powers really mean?


That driver steered his taxi into a crowd of pro-democracy protesters? Wait, he even fractured a woman’s limbs? Reward the driver with a $200k ‘donation’ and sue the lady for illegal assembly!


That pro-establishment legislator physically dragged and attacked a legislator from the opposite camp? He even did that in front of countless cameras serving as potential court evidence? Ban the private prosecution and sue the victim!


Didn’t feel like winning them votes? Blame COVID and postpone the election!


Not fancying that legislator? DISQUALIFIED! Alvin Yeung? Dead body? What’s the difference already?


An utter deterioration from rule of law to rule by law? Indeed! But who cares?


Following the CCP’s unilateral establishment of the National Security Law, the death of Hong Kong’s separation of powers symbolizes the final stretch towards Beijing’s audacious and complete takeover of the city. In the name of “cooperation of powers”, the CCP, through Carrie Lam and her government, can now override the law structure we introduced earlier.


Under separation of powers, the legislative was separated from the executive. This structure guaranteed a basis for monitoring the implementation of laws, with all bills proposed to and passed by the Legislative Council before coming into effect. Whereas under the current ‘cooperation of powers’, without our legislators’ supervision, we’ve witnessed the government exploiting COVID for her political benefit: arresting peaceful protestors using the restriction order, postponing the legislative election when there had been near-zero new cases for consecutive weeks……


How about the initially separated judiciary and executive? Again, cooperation! The incidents mentioned above, alongside countless others, are concrete examples of the government’s intervention in the city’s daily judicial operation. Beijing wants to use the law to honour those who support, and punish those who don’t; and evidently, it’s a remarkable success when our Secretary for Justice demands prosecution against government supporters withdrawn, and gifting arrested protestors prolonged imprisonment, even in cases where evidence may not be sufficient to back such judgements.


What does the official death of Hong Kong’s separation of powers really mean? It means that the executive can intervene with the legislative, the legislative can manipulate the judiciary, and sitting on top of the executive, our great and honorable CCP, has now, once and for all, the final say; they have the ultimate control over our home, both the present and its future.


The potential consequences – A farewell to Hong Kong’s separation of powers

“You need not destroy its buildings, you need not murder its people; heck, you might as well leave it looking just the same as it has always been on the outside! But once its original values and principles are made to vanish, the city is killed and forever dead.”


It was nice having you, our dear separation of powers; as once a core value of Hong Kong, your disappearance has paved the passageway to our city’s deathbed. Some claimed that your departure signifies democracy’s demise, but is it really?


The further decay of Hong Kong’s freedom? The final crunch of our democracy? What are the potential consequences of your death?


Being the pessimistic one I am, to me, the funeral bells have rung long before your retirement; from the 2019 extradition bill to the 2020 National Security Law, what’s left was merely the husk of Hong Kong’s prosperous past.


There is no further decay when freedom is nonexistent, there is no final crunch when democracy is fictitious, and there are no potential consequences when a city is long killed and forever dead.


Yet, remember, remember, remember. For until our final breath, a horse is a horse, and never a deer.




Footnotes:

[1] Statement quoted from the following SCMP article, written by Teresa Cheng in early September:

https://www.scmp.com/comment/opinion/article/3100695/why-separation-powers-has-no-place-hong-kongs-political-structure

[2] This does not apply to flexible/elastic constitutions, such as that of the United Kingdom, which can be amended without going through any sort of special legal procedures.

[3] Oxford Constitutional Law (section D.15): https://oxcon.ouplaw.com/view/10.1093/law-mpeccol/law-mpeccol-e466

[4] Numbers provided by Stand News in the following article (unfortunately only available in cantonese): https://www.thestandnews.com/politics/%E4%B8%89%E6%AC%8A%E5%88%86%E7%AB%8B-%E6%96%BC%E5%88%A4%E8%A9%9E%E7%AD%89%E5%87%BA%E7%8F%BE%E9%80%BE%E7%99%BE%E6%AC%A1-%E5%BC%B5%E8%88%89%E8%83%BD-2008-%E5%B9%B4%E5%88%A4%E8%A9%9E-%E6%8C%87%E5%9F%BA%E6%9C%AC%E6%B3%95%E7%A2%BA%E7%AB%8B%E4%B8%89%E6%AC%8A%E5%88%86%E7%AB%8B%E5%8E%9F%E5%89%87/

[5] The 721 incident, also known as the 2019 Yuen Long attack, was a saddening event in which an armed mob of alleged triad members and the Hong Kong Police Force reportedly cooperated against pro-democracy protestors, with the police allowing civilians to be attacked and beaten up with steel rods and rattan canes indiscriminately. More details can be found here: https://en.wikipedia.org/wiki/2019_Yuen_Long_attack

[6] This is due to a ban on the June 4th vigil citing Coronavirus concerns. This is because the Hong Kong police had banned the Tiananmen vigil citing coronavirus safety concerns. However, critics argue that the government had used the coronavirus as pretext to suppress dissent. See https://www.bbc.co.uk/news/world-asia-china-52877411

[7]Woman faces 6-month imprisonment for “possessing a laser pointer”, with her black t-shirt as the only evidence of her participation in a related violent protest (Stand News): https://www.thestandnews.com/court/%E5%A5%B3%E7%97%85%E6%88%BF%E5%8A%A9%E7%90%86%E8%97%8F%E9%9B%B7%E5%B0%84%E7%AD%86%E8%A2%AB%E5%88%A4%E5%9B%9A-6-%E5%80%8B%E6%9C%88-%E5%AE%98%E6%8C%87%E7%A9%BF%E9%BB%91%E8%A1%A3%E5%88%B0%E6%97%BA%E8%A7%92%E5%90%83%E7%B3%96%E6%B0%B4-%E7%93%9C%E7%94%B0%E6%9D%8E%E4%B8%8B/