Bar Hits Out At CE Separation Of Powers Comments

The Hong Kong Bar Association has criticised the Chief Executive Carrie Lam's assertion on Tuesday that Hong Kong does not have separation of powers between the executive, legislative, and judicial branches of government

In a statement issued on Wednesday, the Bar described the statements of Lam and Education Secretary Kevin Yeung as inconsistent with the unambiguous provisions of the Basic Law.

The Bar said Lam had said that the HKSAR derives its authority from the Central People's Government (CPG) and it is the office of the Chief Executive which is directly accountable to Beijing. It said Lam also made the point that the courts deal with legal issues but not political issues, the latter being for the executive and legislative bodies.

The Bar said neither point supports the contention that there is no separation of powers.

"That the HKSAR, through the Chief Executive, is accountable to the CPG, speaks to the HKSAR’s place within the constitutional order of the PRC. It does not detract in any way from the clear provisions of the Basic Law setting out how local governance is to be conducted," it said.

"The second point, far from contradicting a separation of powers, is an integral aspect of it. It recognises that certain functions have been entrusted to the executive or legislative branch and should be exercised without judicial intervention except as prescribed by law."

The Bar said the Basic Law provides for a constitutional order in the HKSAR where there are effective checks and balances on the exercise of executive power.

"Under Article 48, the Chief Executive leads the government of the HKSAR and is responsible for implementing the Basic Law and deciding on government policies. Under Article 59, the Government shall be the executive authorities of the HKSAR and, as stated in Article 64, accountable to the Legislative Council (“LegCo"). Under Article 73. it is the LegCo that enacts, amends and repeals laws. Under Article 80, the courts exercise the judicial power of the HKSAR and, as stated in Article 85, they exercise that power ’independently, free from any interference’," it said.

"In legal proceedings before the courts, particularly in judicial review proceedings, the Government frequently relies on the separate functions of the executive, the legislature and the judiciary when defending the legality of executive action and the constitutionality of laws enacted by the LegCo."

The Bar said the doctrine of the separation of powers is designed to avoid excessive concentration of power, guards against abuse, and strengthens the Rule of Law.

Earlier on Wednesday, the vice chairwoman of the Basic Law Committee, Maria Tam, said while the three branches of government do have different functions and monitor one another, the concept of separation of powers is only a legal principle but does not form part of the constitutional order in Hong Kong.

A former member of the National People's Congress Standing Committee, Rita Fan, also said it was more accurate to describe the current governance system as a division of labour.

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