Chief Executive über alles

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Liaison Director Zhang stirred up a hornet’s nest in declaring the CE above the executive, legislature and judiciary. It was no accident.

More than three months after saying he would “shut up” following the demise of the 2017 electoral blueprint, China’s top official in Hong Kong caused more than a stir when he spoke again. This time  he spoke on the highly-sensitive issue of the status of the Chief Executive under the “one country, two systems” formula.

At the heart of the fresh controversy was a claim made by Zhang Xiaoming, the central government’s Liaison Office director, on Saturday about what he called the ‘special legal status’ of the Chief Executive under the post-1997 constitutional framework.

Zhang argued that the Chief Executive has a special status of being dual heads (head of the SAR and the executive authorities) and having dual accountability (towards the central government and the SAR).

Therefore, he said, “The Chief Executive has enjoyed special legal status which is above the executive, legislative and judicial branches.”

In his speech at a conference marking the 25th anniversary of the promulgation of the Basic Law, Zhang reiterated a longstanding stance dictated by late paramount leader Deng Xiaoping about the city’s political system. Deng said at a meeting with the then Basic Law drafters in mid-1980s that Hong Kong would not practise a system of separation of powers.

Zhang said Hong Kong has never adopted such a system, which, at its best, could only serve as a “reference” for the city’s political framework.

He admitted his remarks would cause a row, but maintained he would not “shy away” from disputes when promoting the Basic Law.

CE = Celestial emperor

As he anticipated, Zhang’s remarks have drawn flak from the pan-democratic camp, including the self-proclaimed moderates such as Ronny Tong Ka-wah. Tong said he was flabbergasted by Zhang’s comments. Some pan-democrats said Leung, the current Chief Executive, would be as powerful as an emperor if Zhang’s view prevailed.

Initially, top officials refrained from commenting directly on Zhang’s views. Justice minister Rimsky Yuen Kwok-keung and Chief Secretary Carrie Lam Cheng Yuet-ngor urged people not to read the remarks out of context. They were quick to reject claims that the Chief Executive “won’t be a king above all.”

Speaking before the weekly Executive Council meeting, Chief Executive Leung Chun-ying claimed Zhang’s remarks have been distorted by critics. He said some comments were harsh and misleading.

In a sign of the sensitivity of the remarks, all pro-establishment legislators and figures contacted by RTHK’s City Forum for a discussion on Zhang’s remarks on Sunday shunned the invitation.

If the loyalists prefer to keep their heads down, it is because even the loyalists found it difficult to grasp the essence of the assertion of Zhang about the “above-the-three-powers” notion.

More important, many were at a loss about the timing of the controversial statement by the Liaison Office head. Plainly put, the combative remarks are in contradiction with the signs, albeit tiny, of a moderation of ties between Beijing and some moderate pan-democrats.

Last month, Feng Yi (馮巍), deputy director of the Hong Kong and Macau Affairs Office, showed friendship accepting a dinner hosted by the Democratic Party. The dinner lasted for more than two hours. Meanwhile, Ronny Tong held two separate talks with Feng and his boss, Wang Guangya (王光亞), at the end of his trip to attend the September 3 military parade.

Hopes that the two rounds of dialogue were prelude to the warming of ties between Beijing and the pan-democratic camp, or at least the moderates, have proved to be wishful thinking.

Smoke, no fire

Four months after the vetoing of the political reform package, Beijing has shown no indication of a change of its latest Hong Kong policy, not even a major adjustment of its tactic, particularly towards the pan-democrats.

Beijing’s latest stance on Hong Kong under “one country, two systems” has been stated in the State Council’s white paper published in June last year. One of the key principles set out is that the central authorities have full jurisdiction over the Hong Kong SAR. In another controversial statement, it said judges are part of the fleet of “administrators” of the SAR.

In his speech, Zhang argued the Chief Executive enjoyed superior status above the three powers. Leung said on Tuesday Zhang has not said the Chief Executive has “overriding powers” over the three branches.

Separation is real and important

It sounds academic to argue whether or not Hong Kong practises a system of separation of three powers. True, it does not exist in name in the Basic Law provisions But it does exist in substance with clear stipulations about the independent powers of each branch.

According to Basic Law documents, the relations of the three organs are governed by mutual checks and balances, with coordination.

From the political and constitutional perspective, the Chief Executive is arguably given “superior” status as a conduit between the central government and the SAR. But in terms of powers set out in law, he is not above the law or immune from the supervision of the legislature and the judiciary.

That former chief executive Donald Tsang Yam-kuen is now under investigation for alleged wrongdoings during his reign is a case of separation of powers in real life. And Leung knows better than many of the obligation of him and the executive authorities to be accountable to the legislature, which could mean being humiliated by lawmakers and frustrated by routine filibustering.

The dismay and frustration of Beijing, Leung, and his team and the administration over how the so-called executive-led structure enshrined in Basic Law provisions has (not) worked since 1997, are ostensibly clear.

Some pro-Beijing figures have not shied away from expressing their dissatisfaction with the judiciary over their ruling in some cases, in particular relating to human rights. Pro-Beijing legislator Anne Chiang Lai-wan has grumbled about cases involved Occupy Central protesters. She has said: “The police made the arrests. Judges set them free.”

Leung said on Tuesday that given Hong Kong is not an independent state, it does not enjoy “complete executive and legislative powers.” He reaffirmed an independent judiciary, apparently because of the damaging impacts on confidence if he should appear to avoid supporting judicial independence.

What they are up to

The writing is on the wall. The string of remarks by Beijing officials about separation of powers and status of the Chief Executive is not aimed at stimulating an academic debate. It is an attempt to redefine the key principles and rules under a “one country, two systems” policy aimed to neuter the powers of the legislature and the judiciary to block a strong executive-led government.

It is unclear how that can be done without contravening the letter and the spirit of the Basic Law. From that perspective, Zhang’s remarks could only be counterproductive, provoking disputes and sowing more suspicion and distrust in the society towards Beijing at a time of fresh doubts about maintaining the promise of keeping the Hong Kong’s systems intact for half a century.