HK Observer | Vive la difference

This month we have had a deluge of reactions and counter-reactions about Beijing’s liaison office director Zhang Xiaoming’s remarks about separation of powers; that Hong Kong has no separation of powers and that the chief executive is transcendent. Leaving aside the transcendent part for now, isn’t everybody here going down a blind alley pursuing a red herring?

Zhang said that the executive legislative and the judiciary are supposed to work together according to the Basic Law, not operate as separate independent powers. While constitutional lawyers can argue until the cows come home about the fine differences between degrees of separation of powers, there is no doubt that there is separation of powers here in practice but not by right if we look at the first ground rules of China prior to the Basic Law and take those as guiding principles. Hong Kong abides by the Common Law system and within common law jurisdictions which interpret laws in the courts, the intention of the law is a primary guiding force. It was very clearly stated by Chinese leaders prior to the writing of the Basic Law that there would be no Western style separation of powers. However is that the final word?
Looking at Zhang’s statements we have to wonder at the motivations when he clearly stated in a second extended statement that he expected the remarks to be controversial.

It seems clear that there was a message to Hong Kong that the Chief Executive has a supreme place and only occupies that position by the Central Government’s approval and subsequently answers to Beijing. The supreme leader part was a bit of a surprise and what that exactly means is open to discussion but the rest was not; and why send this message at this time?

The chief executive being transcendent is true in the sense that he has extensive powers, unused for the most part, but on the other hand he is unable to force legislation through the legislative council at will as we saw with the defeat of the political reform bill. Furthermore the limitations on his powers by the legislature were made apparent as he has been unable to set up a pet project, an innovation bureau; nor necessarily can he ensure his favored policies are followed through, with regard to freeing up land for much needed housing.

But again why this message at this time? There had just been a rapprochement of sorts between the central authorities through a meeting with the Democrat Party leader and several of her colleagues. Why stir it up after that?

There was the upcoming visit to the US by President Xi Jinping. Was the message more for a domestic audience? On the other hand there are the upcoming HK District Council elections. With Beijing coming out with remember-who’s-boss statements, a sensitive subject with many Hong Kongers, it can surely only play into the hands of the pan-democrats.

There were other controversial lectures recently to Hong Kong citizens via a former senior official overseeing Hong Kong affairs, Che Zhou’er. His arguments were that Hong Kong has yet to decolonize. There’s certainly a lot of truth to that if we recognize that the legacy of colonial rule is still in place in the sense of a widespread sense of separation, of difference – us and them – among the population here and the freedoms we enjoy; but that doesn’t mean that we can’t come to a mutually acceptable modus vivendi.

Isn’t one of the great qualities of Chinese culture pragmatism? So lets give the gulf time to close as it surely will, sooner or later, as the Chinese economy matures, the country continues to open up and rising levels of education and exposure to the outside world bridge the gap between local Chinese and fellow countrymen over the border. In the meantime; “vive la difference”.