Pro-Beijing heavyweight Rita Fan Hsu Lai-tai has said that Hong Kong does not have separation of powers as it is not written in the territory’s mini-constitution.

Fan made her comment in response to the government’s unprecedented decision on Tuesday to file a judicial review and injunction in an effort to block two independence-leaning lawmakers from retaking their oaths in the Legislative Council on Wednesday. The government has been criticised for interfering in the internal affairs of the legislature and disregarding the principle of separation of powers.

‘Only judicial independence’

Fan, a former president of the Legislative Council, said on Thursday: “I think it is understandable for the chief executive to file [a judicial review] to the court if he thinks he has such a duty after thinking it through.”

A member of China’s top legislative body, the Standing Committee of the National People’s Congress (NPCSC), Fan said that the NPCSC previously had a group discussion on Hong Kong, and “clearly explained” that the Basic Law does not mention separation of powers.

“The idea of separation of powers is only something brought up by some members of Hong Kong’s legal sector,” said Fan.

See also: Explainer: Separation of powers, judicial reviews and the legal bid to stop localist lawmakers

Fan said that the Basic Law only safeguards judicial independence, “meaning that judicial decisions should not be affected by the government or any influential people in Hong Kong.”

“I think it may not be completely correct to say that separation of powers is part of the framework of the Basic Law,” Fan concluded.

‘Completely wrong’

Lawyer Alan Wong of the Progressive Lawyers Group slammed Fan for “completely misinterpreting” Hong Kong’s mini-constitution.

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“I believe many lawyers and judges would disagree with Mrs. Fan’s interpretation of the Basic Law,” Wong told HKFP. “The idea of separation of powers is that the executive branch, the judiciary and the legislature keep each other in check to prevent abuse of power by any one branch.”

“Fan herself agreed that there is judicial independence. But if there is no separation of powers, how can there be judicial independence?” Wong said.

Progressive Lawyers Group member and lawyer Kevin Yam told HKFP that although Hong Kong’s political structure can be described as “executive-led,” it does not mean that there is no separation of powers.

“The chief executive and the government are answerable to the Legislative Council, and the courts also keep the chief executive in check,” said Yam. “There are also court cases affirming the principle of separation of powers.”

NPCSC interpretations

Wong said: “The courts have in the past made decisions based on the principle of separation of powers. If Fan is saying that there is no separation of powers, is she also saying that many past judgments were wrong?”

“If that’s the case, does she dare to ask the NPCSC to interpret the Basic Law?” Wong added.

NPCSC beijing

Article 158 of the Basic Law confers the power of interpreting the territory’s mini-constitution on the NPCSC. In other words, the NPCSC’s opinions are final and legally enforceable.

An NPCSC interpretation – which has happened on four occasions since the 1997 handover – is always controversial due to the public perception that Beijing is undermining Hong Kong’s judicial independence.

Fan said earlier that an NPCSC interpretation is not necessary at this stage.

Timing

Shiu Sin-por, the government’s top advisor and a member of the Chinese People’s Political Consultative Conference, also wrote in Ming Pao on Thursday that Hong Kong’s political system is not based on the principle of separation of powers. “It is not now, and will never be,” said Shiu.

Wong said that Fan’s and Shiu’s comments were meant to justify the government’s decision against criticisms that it is using the court to interfere in the internal affairs of the legislature.

“The government also didn’t argue in court that there is no separation of powers,” said Wong. “It just couldn’t justify its action.”

Baggio Leung Yau Wai-ching

In a speech in 2014, Chief Justice Geoffrey Ma said: “The Basic Law sets out clearly the principle of the separation of powers between the legislature, the executive and the judiciary, and in quite specific terms, the different roles of the three institutions.”

The High Court held in a judicial review in 2007: “The Basic Law enshrines the separation of powers. A reading of the [Basic] Law makes it evident that the executive, the administration and the legislature are each to perform their constitutionally designated roles in a co-ordinated and co-operative manner for the good governance of Hong Kong.”

Former president of the Legislative Council Andrew Wong Wang-fat has said that it is unwise of the government to challenge the ruling of the legislature’s president.

On Tuesday, the government lost in its legal bid for an interim injunction against pro-independence lawmakers Yau Wai-ching and Sixtus Leung Chung-hang of Youngspiration to block them from retaking their oaths, but the court granted leave for judicial review to the government. A hearing is scheduled for November 3.

Article was originally published in Hong Kong Free Press on 20 October 2016

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