Current and former Beijing officials are talking tough on HK's political system and post-colonial development - but for what purpose?
GARY CHEUNG AND JOYCE NG
PUBLISHED : Tuesday, 22 September, 2015, 3:04am
UPDATED : Tuesday, 22 September, 2015, 8:15am
Professor Michael Davis, a legal scholar at the University of Hong Kong who specialises in constitutional law, said Zhang's comments were "simply false".
"Transcend" has become a buzzword in the Hong Kong media and among internet users since Zhang Xiaoming, director of Beijing's liaison office in the city, claimed two weeks ago that the position of chief executive held a special legal status that "transcended" all three branches of government.
What exactly Beijing's top man in Hong Kong meant with his use of the word has since become a topic of fierce debate, with some pan-democrats fearing Beijing is seeking to turn the chief executive into an emperor-like figure or "local despot".
Zhang's assertion was part of a 5,300-word speech in which he outlined how Beijing saw Hong Kong's political system, and it prompted questions about what Beijing's next move could be in relation to governance of the city.
Professor Lau Siu-kai, a leading adviser to Beijing on Hong Kong affairs, said he expected the Hong Kong and central governments to use legal means, including interpretations of the Basic Law, to tackle filibustering by pan-democratic lawmakers in the legislature.
On Sunday, a week on from Zhang's controversial remarks, Chen Zuoer , a former deputy director of the Hong Kong and Macau Affairs Office, said a failure to carry out "de-colonisation" was the root cause of internal strife and economic woes in Hong Kong. Speaking at a forum, he criticised the city for allowing a "revival of de-sinofication".
Chen, now chairman of the Chinese Association of Hong Kong and Macau Studies, was referring to a process by which he said the city had rejected and eliminated mainland influence as soon as talks on Hong Kong's future began in the early 1980s.
In the space of a week, two figures close to state leaders had delivered tough words on the definition of "one country, two systems" and how the formula for Hong Kong's governance should be understood. Commentators said their comments highlighted Beijing's concern that its authority was being challenged.
Zhang's logic was that the chief executive, who is appointed by the central government to be its representative in Hong Kong, is both the head of the special administrative region and the Hong Kong government. The office of the chief executive should therefore be seen as a manifestation of the central government's jurisdiction in Hong Kong.
Liaison office director Zhang Xiaoming gives his speech on governance in Hong Kong. Photo: SCMP Pictures
Speaking at a seminar on September 12 to mark the 25th anniversary of the promulgation of the Basic Law, Zhang explained how Beijing saw the chief executive as holding the core position in Hong Kong's political system. The post served as a link between the central government and the three branches of government in Hong Kong, he said.
Lau is vice-chairman of the association headed by Chen, the mainland's top think tank on Hong Kong affairs. He said Zhang's argument should be understood as meaning the city's leader held a "transcendent constitutional and political status" and enjoyed a symbolic and reputational privilege.
"But it doesn't mean he is exempt from the law," he said.
READ MORE: Zhang Xiaoming’s controversial speech on Hong Kong governance: The full text
Lau, who led the Hong Kong government's Central Policy Unit from 2002 to 2012, believed Zhang wanted to send a message that the chief executive should take a broader view.
"The chief executive, who is the central government's trustee in Hong Kong, must take into account the overall interests of Hong Kong in performing his or her duty," Lau said. "He or she must stay clear of political wrangling and govern in an impartial and even-handed manner."
The notion that the chief executive might hold a superior or "transcendent" position sparked fears over whether he or she is subject to checks and balances. Under the Basic Law, the chief executive can refuse to sign a bill passed by the Legislative Council. He is empowered to dissolve the legislature and call elections if it refuses to pass an important bill or the budget. In both cases, if Legco stands firm, the chief executive has to resign. Lawmakers can impeach the chief executive for a serious breach of law or dereliction of duty.
The chief executive appoints judges, but on the recommendation of the Judicial Officers Recommendation Commission. It is understood that no chief executive has ever rejected the commission's recommendations. The courts exercise oversight of the executive branch through the judicial review process.
Four days after Zhang's speech, Chief Justice Geoffrey Ma Tao-li waded into the debate. Zhang had said Hong Kong's political system did not exercise the separation of powers, but Ma, the city's top judge, stressed everyone was equal before the law, and that the city enjoyed judicial independence, putting him at odds with Chief Executive Leung Chun-ying, who had defended Zhang.
Chief Justice, Geoffrey Ma Tao-li. Photo: Sam Tsang
Regardless of the terminology or rhetoric used by Zhang, checks and balances between the three branches of government are a reality in the city.
Professor Michael Davis, a legal scholar at the University of Hong Kong who specialises in constitutional law, said Zhang's comments were "simply false".
"To be a system of separation of powers does not require the three branches to be equally empowered. As noted in Zhang's speech, Legco's powers are so limited that its ability to check the executive is somewhat limited. This does not change the fact that the Hong Kong system reflects the very definition of separation of powers," he said.
Apart from the checks and balances written into the Basic Law, there have been actual cases where the courts have checked the power of the chief executive.
In 2006, the Court of First Instance ruled in a judicial review sought by lawmaker "Long Hair" Leung Kwok-hung that it was unconstitutional of the government to issue "executive orders" to officers in the police and the Independent Commission Against Corruption to carry out covert surveillance operations.
More recently, in April this year, the same court ruled it was unlawful of Leung and his cabinet to deny a free-to-air licence to Hong Kong Television Network.
Yet a careful reading of Zhang's speech will show that the legislature, rather than the judiciary, was his primary target. He noted that there had been "hiccups" in the operation of the city's political system such as "excessive filibustering" in Legco.
Lau said Beijing was angry about filibustering by some pan-democratic legislators who had tabled hundreds of amendments to government bills in recent years. Article 74 of the Basic Law states legislators may introduce bills, but the written consent of the chief executive is required before bills relating to government policies are introduced.
"For Hong Kong and Beijing officials, whether amendments to bills should be classified as 'bills' is an unresolved constitutional issue," he said.
"I don't rule out the possibility of the Hong Kong or central government using legal channels in future to tackle filibustering by pan-democratic lawmakers. Interpretation of the Basic Law is one possible means."
http://m.scmp.com/news/hong-kong/politics/article/1860241/transcendent-word-heart-battle-define-hong-kongs-political
