by Joseph Wong Wing-ping
Zhang Xiaoming, Beijing's top official in HK, has stirred a controversy by suggesting that the chief executive has a constitutional status that transcends all branches of government, including the judiciary. Photos: internet
Zhang Xiaoming (張曉明), director of Beijing’s liaison office in Hong Kong, said at a seminar last week that a tripartite political system based on separation of executive, legislative and judicial powers with checks and balances “can only serve as a reference” but is “never applicable” to Hong Kong, and that the chief executive has “a transcendent legal position on top of these three powers”.
Not surprisingly, the words have drawn a volley of criticism. Now, I think the two points he made should not be singled out from the context and labeled as fresh proof of Beijing’s aim to inhibit the territory’s freedoms, or of Zhang’s support for the embattled Leung Chun-ying.
Let’s go into detail on what the top Beijing envoy said in his speech.
In Zhang’s words, when designing the special administrative region’s political system, the Basic Law’s legislative intent was that neither Britain’s Westminster style parliamentary system nor America’s separation of powers should be inherited or cloned.
Instead, the political framework must be laid down in a way that is accountable to the central authorities. Separation of three powers, as Zhang defined it, entails sovereignty and national security.
Putting back in the context, we know that Zhang’s argument is but a faithful reiteration of Beijing’s old ideals that Hong Kong’s political structure should be an executive-led one headed by the chief executive and that the central government supervises the chief executive and the chief executive in turn supervises how Hong Kong is run.
Such a stance has not changed over the years and there’s nothing new in Zhang’s speech this time.
For the record, Zhang did mention that the chief executive faces checks and balances from the legislature and that the Basic Law guarantees an independent judiciary.
All commentaries must be just and fair. I choose to focus on the whole content of his speech and the purpose he aims to serve, rather than jumping on the bandwagon to lash out at just a few controversial points.
I am also going to point out a few other key issues that Zhang deliberately avoided touching, those that are the exact cause of Hong Kong’s falling standards in governance since its handover.
If the chief executive does enjoy the kind of “transcendent legal position” to override the three powers as Zhang puts it, it may originate from his “dual role” and “dual responsibility” laid out in the constitutional document: the chief executive shall be the head of the SAR and shall represent the region, and, he shall be accountable to the central government and the SAR (article 43).
The chief executive’s dual role, as head of the government and head of the SAR, is similar to that of the US president. But just like the fact that being the head of state does not enable him to meddle in the legislature and the judiciary, Hong Kong’s top leader can only discharge his duty within the scope set in the Basic Law.
His dual role can never realize Beijing’s ideals to subordinate the legislature and the judiciary, as it is at odds with the Basic Law’s provisions and principles of Hong Kong’s common law system.
As for the chief executive’s “dual responsibility”, Zhang believes that the top leader can “bond together three powers as the core of governance” with the “transcendent’ status. He added that this is essential to fulfill the central government’s overall jurisdiction over the SAR.
This may be a fallacy in reality even if we agree to set aside debates on the legitimacy of such a “transcendent position”.
The reason is that the chief executive’s ability to influence the legislature has already been disproved by the veto of 2017 election package. Has he done anything to enhance relations with lawmakers? Also, so far he is unable to exert any influence on the independent judiciary, otherwise there wouldn’t have been so many judicial review cases halting key infrastructure projects.
The Communist Party has all the say on the mainland and whenever necessary, laws can be bent to serve political purposes. But a system that allows laws to be overridden is repugnant to Hongkongers.
And, besides staying docile to his mainland masters all the time, we haven’t seen any convincing example that Leung is genuinely accountable to the entire society of the SAR.
Looking at the situation on the ground, the chief executive’s “dual responsibility” is no guarantee of smooth governance: he is unable to tame and lead the other two powers, nor has he fulfilled the constitutional responsibility to be accountable to the territory and the people, which he is supposedly to serve in the first place.
When concluding his speech, Zhang noted that he knew the topic he chose was sensitive but he must take the position to make it clear that controversial aspects cannot be dodged when promoting the Basic Law.
I welcome Zhang’s straightforwardness and I am not surprised by the official perspectives he was trying to convey.
Meanwhile, I wish to point out the fact that Beijing’s ideals about Hong Kong governance have all failed in practice, and correct understanding of Beijing’s interpretations of the Basic Law is not the key to resolving the impasse. The first step in the right direction is for Beijing to listen to Hongkongers’ voice.
This article appeared in the Hong Kong Economic Journal on Sept. 16.
Translation by Frank Chen
– Contact us at english@hkej.com
RC
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