Powers row is much ado about nothing

Editorial | Mary Ma 4 Sep 2020

A big fuss has blown up over separation of powers - but is it really much ado about anything at all?

Doubtless, the debate is of interest to some educators, politicians and legal professionals.

But not so to the public that is only concerned to see in deed, not in name, a judiciary functioning independently, a legislature passing laws and vetting public spending up to expectations and an administration governing according to the common wish.

It doesn't matter one iota whether or not it is called separation of powers as long as checks and balances exist to the greatest degree.

So it's lamentable that Secretary for Education Kevin Yeung Yun-hung started the controversy in the first place. It was then made worse by Chief Executive Carrie Lam Cheng Yuet-ngor who had no choice but to back her minister by doubling down on an issue that is clearly much ado about nothing.

Worse still, the opposition added fuel to the fire, driving the wedge further down to exploit people's fears that they may lose all those safeguards guaranteeing their rights, speculating that the executive arm would gain control over judges.

Hopefully, this waste-of-energy spat won't last long.

Separation of powers is less a legal text than a concept that Hongkongers are accustomed to. It has been taught in schools for decades - back in the 1980s, it was also explained in the Economic and Public Affairs school textbooks.

The EPA books even mentioned that the then-Royal Hong Kong Jockey Club and the media were, in practice, the fourth and fifth powers.

The description of the club and media was factual but only in the sense that they had great influence in society. Strangely, it was not as true about the government back then because the governor had absolute power above the rest in the colony.

Central to the teaching of separation of powers is the principle of effective checks and balances, and it was superfluous for Lam to say it is about division of labor.

Of the three powers, it is most critical to have an independent judiciary as relationships between the legislative and executive arms are bound to evolve in accordance with prevalent political realities.

The former colony of Hong Kong is now a Chinese SAR founded on the basis of one country, two systems.

What matters is to avoid indoctrinating a principle as if it were some kind of religion.

In politics, separation of powers is also practiced variously - even in mature democracies.

In Britain, the majority party in parliament is the ruling party and, in this sense, the prime minister and parliament are part of each other. Yet, in addition to an independent judiciary, popular elections are aimed at ensuring restraint.

The US has another model whereby the president and congressional majority can belong to opposing parties.

Although Congress is tasked to monitor President Donald Trump, he has sought to bypass Congressional monitoring by issuing a record number of executive orders.

There are competing views within our own legal profession. A timely case in point is retired Court of Final Appeal judge Henry Litton writing a commentary criticizing judges for stressing too much on individual rights.

It's normal to hear conflicting views - but is it really in our best interest to focus on a row that's much ado about nothing?

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