My post to HK Free Press:
When it comes to politics, like
it or not, it is a fact that many people in Hong Kong don’t trust the court
anymore.
Retired judge Woo Kwok-hing, when announcing his decision to run for the top
post, said that among the three powers, the judiciary is the most powerful. This hardly sits well with the executive-led
constitutional arrangement as enshrined in the Basic Law. #
In its first interpretation of the Basic Law, the SCNPC stated that “Those
relevant provisions concern affairs which are the responsibility of the Central
People’s Government and concern the relationship between the Central
Authorities and the Hong Kong Special Administrative Region. Before making its judgment, the Court of Final
Appeal had not sought an interpretation of the Standing Committee of the
National People’s Congress in compliance with the requirement of Article 158(3)
of the Basic Law of the Hong Kong Special Administrative Region of the People’s
Republic of China. Moreover, the
interpretation of the Court of Final Appeal is not consistent with the
legislative intent.”
Since then, perhaps many judges (including Woo Kwok-hing) may have formed the
view that the judiciary has the greatest power. So much about mutual trust.
# I won’t repeat the many views already
expressed on the executive-led system. Suffice
to supplement a few points below:
(a) BL12: “The Hong Kong Special Administrative Region shall be a local
administrative region of the People’s Republic of China, which shall enjoy a
high degree of autonomy and come directly under the Central People’s
Government.”
Note that unlike other provinces in China where the provincial people’s
congresses elect the governments and courts etc to which they are responsible
and report their work, and by which they are supervised, the HKSAR comes
directly under the CPG. And according to
BL43, CE shall be the head of the HKSAR, shall represent the Region and be
accountable to the CPG and the HKSAR.
According to BL48(8), he/she shall implement the directives issued by
the CPG in respect of the relevant matters provided for in the Basic Law.
While CE may directly dissolve
LegCo according to BL50, LegCo may pass a motion of impeachment by a two-thirds
majority of all its members and report it to the CPG for decision according to
BL73.
It is clear that both the CE and HKSAR come directly under the CPG, the
executive arm of government.
(b) In its decision of 26 April 2004, the SCNPC said: “When the set-up is such
that half of the members are returned by geographical constituencies through
direct elections and half of the members are returned by functional
constituencies, the impact on the operation of the Hong Kong society as a
whole, especially the impact on the executive-led system, remains to be
examined through practice.”
The term “executive-led system”
was mentioned.
Two more points:
(a) While the CFA has the power
of final adjudication, it has to follow the interpretation of the SCNPC, which
is a standing committee of the NPC, the highest organ of state power in China. Note that the NPC has the power of
interpretation, but it is for the court to adjudicate cases.
(b) BL19(3): “The courts of the Hong Kong Special Administrative Region shall
have no jurisdiction over acts of state such as defence and foreign affairs.
The courts of the Region shall obtain a certificate from the Chief Executive on
questions of fact concerning acts of state such as defence and foreign affairs
whenever such questions arise in the adjudication of cases. This certificate shall be binding on the
courts. Before issuing such a
certificate, the Chief Executive shall obtain a certifying document from the
Central People’s Government.”
Note the words “such as”. In the Chinese
text, the word is “etc”.
…